Scottish Sheriff Court Decisions

Application by Fife Council AC20/11

For permanence order with authority to adopt

In respect of K

 

JUDGEMENT OF

SHERIFF AG MCCULLOCH

 

 

Kirkcaldy, 18 April 2012

 

The Sheriff having resumed consideration of the cause FINDS IN FACT:

 

1.      That K M (hereinafter "K" or "the child") was born on 14 March 2010, in Kirkcaldy. She is the daughter of J P (hereinafter "Mum" or "the mother") and K M (hereinafter "Dad" or "the father"). That Dad does not have parental rights or responsibilities in respect of K.

2.      That Fife Council's Social Work department became involved with Mum from about 9 March 2010 following a referral from a Criminal Justice Social worker who was concerned about drugs and domestic abuse within the home, which concerns were supplemented by the midwife, Jan Brown, recognizing a chaotic lifestyle.

3.      That Mum was isolated from her own family, and suffered from ADHD

4.      That after K was born, Mum was her main carer, as Dad was often out and had little day to day involvement with K.

5.      That at her request Mum was assisted in a move out of the family home, with K, into homeless accommodation, due to ongoing violence from Dad, but they returned after only a few days.

6.      That Dad was charged with assault on Mum, and was released on bail, with conditions of no contact with Mum, but Mum and Dad were regularly in each others company thereafter.

7.      That social workers had concern for K due to Dad's drug habit, and domestic violence to Mum; that they arranged for Mum and K to stay at the home of a family friend, Roberta.

8.      That an allegation was made by Roberta's daughter that Mum had dropped K onto a sofa bed, which allegation was investigated by Police and medical authorities, and eventually remained unproved; that during these investigations a Child Protection Order was sought and obtained on 27 May 2010, confirmed by a Children's Panel on 31 May 2010 which required K to live with foster carers. That a place of safety warrant was granted by the Panel on 8 June 2010.

9.      That on 13 June 2010 Dad was arrested for breach of bail by contacting Mum and attempting to pervert the course of justice; that he was remanded in custody for trial.

10.  That on 15 June 2010 a planning meeting was held, where Mum was advised that K would not be returned to her for as long as she continued her relationship with Dad, but that her parenting capacity would continue to be assessed, and that a referral would be made to Barnardo's to assist Mum in looking after K during regular contact visits, with Barnardo's providing a formal assessment report in due course.

11.  That the Children's Hearings on 29 June, 9 August and 30 August continued place of safety warrants, and latterly determined that K should be subject to a supervision requirement in terms of section 70(3) of the Childrens (Scotland) Act 1995, with a condition of residence with foster carers,

12.  That work by Barnardo's with Mum continued, but the absence of proper accommodation for Mum was holding up the assessment process; Mum saw K at either the social work offices, or at a suite of rooms at Barnardo's. Mum was living at the Oasis project, having had an unsuccessful spell at Gilven House. It was hoped that a scatter flat would be allocated to Mum. In the meantime Dad had regular supervised contact to K during periods when he was at liberty.

13.  That on 30 October Mum terminated a pregnancy in order to better focus on K, but due to the termination she required to cancel a number of scheduled contacts with K at Barnardo's. That there were issues with Oasis regarding her accommodation to the extent that plans for a scatter flat were terminated. That social work suspended contact pending a meeting with Mum on 9 November.

14.  That at the meeting on 9 November Mum advised that she had been required to leave Oasis due to her behaviour there, and was staying with a friend in Buckhaven. She was advised to see her GP about help with her previously diagnosed ADHD, and that she was advised to sort out her accommodation and health issues before any consideration could be given to resuming care of K. Further she was to show commitment to K, and to attend all contacts with her.

15.  That supervised contact resumed on 16 November, by which time Barnardo's had completed an interim parental capacity assessment (dated 8 November 2010), which report concluded that further assessment and discussion was necessary to work on Mums "current circumstances and housing situation, her relationships and safety, her ability to problem solve and accept advise in K's best interests, and her ability to demonstrate a stable and consistent lifestyle." The report concluded that K "was now at a critical point in her development where she needs stability and the opportunity to develop an attachment with her main carer which will allow her to develop to her full potential".

16.  That early in the assessment process, there existed a bond between K and Mum, but this bond diminished over time, until it was no greater than between K and any regular visitor.

17.  That Mum when living at Oasis had been considered for a scatter flat, but due to her immature and sometimes disruptive behaviour there, had been removed form the list.

18.  That on 24 November a meeting between social work and Mum took place, following on her move back to Oasis. That a working agreement was signed which covered the work to be done by Mum, with help from social work, to see "whether Mum can meet the needs of K so that she can live full time at home". A date of 22 January 2011 was agreed as a date by which if it was decided then that K could not live full time at home with Mum the likely alternative would be adoption.

19.  That Mum attended contacts on 25 and 26 November, but those scheduled for 29 and 30 November, 1, 3, 6 and 7 December were cancelled due partly to serious adverse weather, and partly as Mum was in Lochgelly without funds. Further contacts were cancelled until a meeting between Social Workers and Mum on 14 December, but took place on 15, 17 and 21 December, with that on 20 December being cancelled by Mum, who then cancelled a scheduled contact on 23 December. Subsequent contacts were cancelled due to Mum's failures to attend, She was asked to come for a further meeting to discuss progress, but did not attend on 4 January, nor a rescheduled meeting on 11 January. She disengaged from social work at this time.

20.  That Mum treated much of the advice given to her by Social Workers and Barnardo's as criticisms of her, and that she failed to show the necessary commitment to K either during the Barnardo's assessment period, or for the duration of the working agreement.

21.  That she put her own needs before those of K, and failed to safeguard and promote her own health, welfare and safety.

22.  That as a result of her failures to engage and attend at meetings for contact and with social work, the deadline of 22 January 2011 passed without any improvement in Mum's ability to care for K. Accordingly plans were commenced for adoption.

23.  That on 21 April a Looked After Child review was held, and neither parent attended; that plans for adoption were discussed, and it was noted that Mum had cancelled many contacts with K, and that Dad had only attended one out of six offered.

24.  That on 26 April, the petitioners' Permanence panel considered the case of K, and accepted that she was a child whose long-term needs would best be met through an adoptive placement, and she was matched with prospective adoptive parents, and that after a Children's Hearing on 20 June, she moved to them on 30 June 2011. That the hearing unanimously advised the court that it supported the application for a permanence order with authority to adopt.

25.  That it is likely that K will be adopted, should this application be granted.

26.  That on 15 July 2011 the petitioners presented an application to this court for a permanence order with authority to adopt, and which was opposed by both parents.

27.  That at New Year 2011/2012 Mum allowed Dad to stay with her for a few days, as he claimed to have nowhere else to go, until the Police were called by Mum after an incident between them, and Dad was arrested.

28.  That K was last in the care of her mother on 31 May 2010, and last saw her for contact on 21 December 2010.

29.  That Mum has now (March 2012) secured permanent accommodation which would be suitable for K to live in with her, has terminated her relationship with Dad, has obtained an interdict against him and engaged with health professionals in respect of some of her medical issues.

30.  That there have been recent issues of anti-social behaviour at the mother's accommodation, which have been the result of the behaviour of Mum and others.

31.  That any contact that K might have with Dad would be seriously detrimental to her welfare, given his chaotic, unreliable and criminal lifestyle, and thus would not be in her interests.

32.  That moving K back to the care of Mum would have a seriously distressing and detrimental effect on the child; that K has developed a bond with her prospective adopters, where she prospers.

33.  That the curator ad litem appointed to the child supported the granting of a permanence order with authority to adopt.

 

FINDS IN FACT AND IN LAW

 

1.        That this court has jurisdiction.

2.        That Mum has been and is unable 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") but that it cannot be said that she is likely to continue to be unable to do so.

3.        That the child's residence with Mum however is, and is likely to continue 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.        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 Mum to the making of the said orders should be dispensed with in terms of section 83(2)(d) of the Act of 2007.

8.        That it is practicable and in the best interests of the child that Mum should have the right 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, to be held by the petitioners on behalf of the child until they are of the opinion that she is old enough to deal with them.

9.        That there is no requirement for compulsory measures of care, and the supervision requirement can be terminated.

 

 

THEREFORE

GRANTS the application to the extent of:

a)      Making a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007, to include the mandatory provision mentioned in section 81 of that Act;

b)      Including the ancillary provisions that vest in the petitioners the parental responsibilities mentioned in sections 1(1)(a), (b)(i) and (d) of the Children (Scotland) Act 1995, and the parental rights mentioned in sections 2(1)(b) and (d) of the 1995 Act;

c)      Specifying that there should be no contact between the child and her father, and that contact between the child and her mother be restricted to letter box contact;

d)      Granting to the petitioners and the prospective adopters (whose names will appear in the decree issued in respect of this judgement) the right to

(i)                  consent to all dental treatment, optical care, emergency treatments, immunizations, routine health appointments and to administer all medications required by the child;

(ii)                to apply for a passport for the child;

(iii)               consent to all trips within the UK and abroad

(iv)              control with whom the child stays and who provides additional care and childminding;

(v)                decide where the child will be educated and to consent to all trips and activities that are provided by education; and

(vi)              consent to haircuts and body-piercings.

(e)     Extinguishing such parental responsibilities and rights as are presently vested in the mother and which by virtue of the making of the permanence order will vest in the petitioners.

(f)       Grants authority for the child to be adopted;

(g)     Dispenses with the consent of the mother, and of the father, on the grounds that in terms of section 83(2)(d) the welfare of the child requires the consents to be dispensed with.

(h)     Revokes the supervision requirement in respect of the child imposed by the Children's Hearing in terms of section 70 of the act of 1995.

 

 

 

 

 

NOTE :

[1]          In this application for a permanence order, with authority to adopt, I heard evidence over a number of days. At the outset of the proof, agents representing the father of the child sought a postponement of the proof, as their client had not appeared, and they were without full instructions. I refused this, and they withdrew from acting. He is not named on the child's birth certificate, and there is in place no parental agreement giving him any parental responsibilities or rights. Accordingly, the court is not required to consider any questions regarding his consent, or otherwise, in this application.

[2]          Agents for the mother had lodged answers to the background social work report, and had also, as I had required, lodged a note of disputed issues. It was clear that the mother opposed the application in its entirety. She sought the refusal of the application, which would likely result in the return to her of her child. Even if a permanence order was granted, she was opposed to adoption, and in any event, she wanted contact.

Given the extent of her opposition, it is helpful to consider the legislative framework applying to this case, matters still being relatively new, and unfamiliar. The Adoption and Children (Scotland) Act 2007 largely came into effect on 28 September 2009, and in this case the court is primarily concerned with sections 80 - 84. There is also a controversy at present as to whether section 14 is also relevant, and I shall deal with that later. The sections are as follows:-

14 Considerations applying to the exercise of powers

                         

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

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

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

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

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

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

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

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

(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.

(8)Without prejudice to the generality of subsection (4)(b), 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 that subsection.

 

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 hat 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 1995Act, 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).

 

[3]          I heard evidence from a number of witnesses for the applicants, and from the mother in opposition. Those for the applicants had completed affidavits in advance, setting out their evidence in chief, which was of assistance in both time and preparation. I heard from four social workers, all of whom I found to be credible, and largely reliable. I also heard from a project worker with Barnardo's, and she too was credible and reliable. The child's mother gave her evidence honestly, and to the best of her ability, but was at times hazy and unreliable. Where there has been a conflict as between the evidence of a witness for the applicants, and the mother, I have generally preferred that of the applicant. There were, additionally, affidavits from witnesses who were not called, and I have accepted these as uncontroversial. There was also a statutory report from the curator ad litem and reporting officer. Her views were not challenged, and I accept them

[4]          I have been left in no doubt that the decisions taken by Social workers have been proper, and appropriate in respect of the child's best interests. Given the difficult situation that the mother found herself in prior to the birth, it was correct for social work to seek to help her remove from an abusive partner, and to recognise that after birth, there would need to be significant input of resources to support the parents. The parents had met and immediately formed a relationship. The mother was then 16 years old, and had turned 17 by the time their child was born. The father is a known heroin abuser, with a number of criminal convictions. There were concerns about domestic abuse. Shortly before the birth, Susan Goodlad, social worker, visited the parents. The parents confirmed that the father had drug and alcohol issues, and that there had been violence between them, but this was in the past. The child was born on 13 March 2010, and shortly afterwards all appeared to be well, with the mother caring appropriately for the child. But there were tensions between the parents, probably because of the father's drug habit, which was not in the past after all. By 20 April, after another assault by the father, the mother wanted help in leaving him. She and the child were placed in homeless accommodation, but she returned to the father, where further violence occurred. There were family arguments, and social work again intervened. It was suggested that Mum and child go to stay with a family friend, which they did. However after a few days there was a report from this family that Mum had thrown or dropped the child onto a sofa. The Police were involved, and as a result of this allegation, and the background of domestic abuse, a child protection order was sought and granted. It was confirmed a few days later by the Children's Hearing. The child was placed with foster careers, and contact with Mum was only allowed when supervised. Although no injury to the child was detected, and no conclusive evidence produced, this incident marked the end of the child's life with Mum.

[5] Contact between the child and Mum started on 9 June, after Children's Hearings on 31 May and 8 June. It was initially twice per week and at about the same time Mum went to stay at Gilfin House, which was supported accommodation for teenagers. Social work decided that it would be appropriate for Barnardo's to be involved to do a parental assessment on the mother and a referral was agreed on 28 July 2010.

[6] The assessment process was undertaken by Eleanor Fowler, of Barnardo's. In her interim report dated 8 November 2011 she highlighted the various difficulties that the mother was having, and what she needed to do to sort herself out sufficiently to enable consideration properly to be given to returning the child to her full time care. All of those working with the mother commented in evidence that given the mother's age and experience, and lack of support within the community she really needed to accept the support and advice on offer, but she seemed unable, or unwilling, to do so.

[7] During the assessment period, which lasted some twelve or thirteen weeks, the mother was on occasion unable to attend for meetings and contacts. There were a variety of reasons for this, but the one significant one was her health. On occasion she attended at accident and emergency at local hospitals, having self harmed or overdosed, and she also decided to have a termination which took place on about 30 October 2010. This must have been a difficult experience for the mother, but she explained that she had decided to go through with the termination so that she could concentrate all her efforts on regaining care of her daughter. Whilst there was some understanding of her position from social workers, little appears to have been done by way of support or counselling at this point. I must comment that I was surprised to discover that mother and child shared the same social worker. This did raise issues of whether or not there was a conflict of interest, and that is something which in the future the social work department should consider. While there might not be a conflict when steps at rehabilitation are all that is being considered, there must in my view be a more obvious conflict when alternative planning is in place, as became the situation here, towards adoption. It was obvious from the evidence that social work were concentrating, quite properly, on the needs of the child, but were substantially ignoring the needs of the mother. The mother was at this point barely 18 years old, with no substantial supports within the community. She had no relationship with her own parents, and while her grandfather assisted as he could, his support was insufficient for her, and her particular needs. She was very much left to fend for herself and while advice such as "you need to sort out your accommodation" or "you must see the doctor" was offered, little constructive help was put in place. Be that as it may, by the time the mother came to give evidence before me, she had sorted out her accommodation, she had ended her abusive relationship with the father, and was taking steps to address medical issues. She had largely achieved this at her own hand, perhaps simply as a result of increased maturity.

[8] In giving her evidence, Eleanor Fowler of Barnardo's spoke of the help that she tried to given to the mother during the assessment period. She spoke of there being a bond between mother and child, but that this bond did not increase as time went on, and by the end of the assessment period, the child was reacting to mother in much the same way as she would react to a visiting social worker; there was no special bond between mother and daughter. Part of the reason for this was the number of missed appointments for contact, some of which were occasioned by ill health, and the termination. The quality of engagement between mother and child was quite good, given the artificial conditions, but for a proper assessment, it was felt that the mother needed to gain her own accommodation as a matter of urgency. It was unfortunate, and detrimental to her claim for return of her daughter, that she failed to do so. I accept that mother took some steps to gain her own accommodation, and managed to get to the point when she was put on a waiting list for a scatter flat. However her own behaviour at Oasis resulted in her being taken off this list. The reasons for her removal from the waiting list for a scatter flat were varied, and ranged from arrears of rent to immature behaviour, to failure to keep her room tidy and failure to carry out essential communal tasks.

[9] Barnardo's completed the assessment and the report dated 8 November was submitted. As a result of the mother cancelling contacts, further contact was put on hold until there could be a meeting between mother and social workers. This eventually took place on 24 November 2010 at which time a working agreement was drawn up. The aim of this work was to see whether the mother, with support from others, could meet the needs of the child so that the child could return to her full care. If by the end of the period (22 January 2011) it was decided that the child could not live at home full time, the likely alternative would be adoption. Four supervised contacts each week were to be offered by social work to the mother. If contacts were cancelled by the mother then further contacts thereafter would be reduced by social work. The agreement was signed and mother immediately had contact on 25 and 26 November. No contacts took place the following week, largely because the weather was extremely bad. The mother was stuck in Lochgelly and unable to travel to Kirkcaldy. There was public transport for a few days, but by 6 December public transport was largely restored. The mother had not returned to the Oasis Project, where she had been living, and indeed eventually lost her accommodation there. The social worker, Michelle Roe finally managed to meet with mother on 14 December. There had been no contact since 26 November. The mother blamed the bad weather, and also her own health, and that of a friend who required her attendance at hospital. She also cited difficulty with her telephone. Contact did take place on 15 December, with the mother arriving late, and it took place again on 17 December reasonably satisfactorily. A Looked After Child Review took place on 17 December where the mother, but not the father, attended. The mother was reminded of the importance of keeping contacts with her daughter and it was made clear to her that further problems with contact would result in permanence plans being advanced. The Barnardo's assessment was considered and it was accepted that at a basic level mother was able to meet daughter's need, but there were a number of concerns about the mother's relationships, incidents of domestic violence, accommodation and her own health. Contact was cancelled on 20 December but took place on 21 December. It was cancelled on 23 December by the mother, by text saying that she had fallen on ice. As a result of the failed contacts, and to avoid unnecessary inconvenience to the carers having to bring the child into the Barnardo's flat in Kirkcaldy, contact was cancelled until Michelle Roe could meet with the mother, which was scheduled for 4 January 2011 but the mother failed to attend. There were texts between them with another meeting arranged for 11 January but she did not appear. Further attempts at meetings took place but the first meeting that the mother actually attended was on 15 February 2011. By that time the period covered by the working agreement had expired. Michelle Roe gave the mother the permanence medical forms for completion. Mother raised the issue of contact and was told by Miss Roe that she needed to make and maintain contact with the social workers before contact will be reintroduced with her daughter. The meeting was arranged for 22 February but mother failed to attend social work. The next contact from the mother was on 11 March when she asked whether the father was having contact, but was advised that it was not taking place. By April Michelle Roe advised that she was progressing permanence plans for the child, and the mother accepted, but was not happy with, these plans. A Looked After Child Review took place on 21 April, but neither parent attended. Subsequently permanence plans were approved by the appropriate committee on 26 April, and supported by the children's hearing on 20 June. The parents were present at that hearing. During the hearing the mother argued that she had "sorted herself out" and sought the return of the child to her care. She indicated out to Michelle Roe that she did not want the child to think that she had given up on her, and spoke about her daughter being able to return to her when she turned 16 years old.

[10] In summary the child was removed from the care of her mother when she was about 10 weeks old. She has been with prospective adopters for far longer than she ever was with her mother. It was the social worker's view that the child's residence with her mother would likely to be seriously detrimental to her welfare. Mother would be a complete stranger now to her daughter and no advantage or benefit to the child could be seen in re-establishing contact with mother or father. The social work recommendation was that letter box contact once a year would be appropriate. This would mean information about the child and a photograph would be sent to each parent once a year, and they could send letters which would be kept by social work, to be shared with the child when she was older and able to deal with such a situation.

[11] In her own evidence the mother indicated that everything that had gone wrong had stemmed from her relationship with the father, and it was either he, or members of his family, that had caused her difficulties. However she had found it very difficult to end the relationship and felt that she had not been given sufficient support by social work to do so. She accepted that at the beginning she had been helped into homeless accommodation by social work, and accepted that under pressure, she had returned to the father. However she was quite clear that the relationship was now over and she should be complemented for ending it. She maintained that the father was no longer a threat to her, that she had taken out an interdict against him, and consequently he would not be a threat to their child. She argued that she had been immature, and found it very difficult to accept criticism. She indicated that she took suggestions as to a better way of dealing with a situation as a personal criticism of her, and she could see why social work and Barnardo's views of her were framed the way that they were. She came up with many reasons why she had not been able to maintain regular contact, some of which were genuine. For example, I fully accept that it would have been difficult for her to travel from Lochgelly to Kirkcaldy at the end of November, early December 2010, when the country experienced extreme snow and ice conditions, resulting in roads being closed and public transport curtailed. However once things were back to normal, she still failed properly to engage. She did not show the necessary commitment to her daughter either during the Barnardo's assessment period, or after she signed the working agreement on 24 November. From that date, she only attended on five occasions to see her daughter, the last being 21 December 2010. She has not seen her daughter since then. When asked how she thought matters should proceed, were this application to be refused, she accepted that she would likely be a stranger to her daughter, and thought there should be a gradual reintroduction. As she now had her own accommodation, and as she was currently living on her own, and as "all children should be with their natural parents" her daughter ought to be reintroduced slowly to her, with contact being increased, and eventually she would come to stay with her full time. She pointed out that not all adoptions are successful, and reiterated the point that in her opinion a child should always be with natural parents, unless those parents were a clear danger to the child. She maintained that her daughter would be in no danger whatsoever if she was to live with her.

[12] It was clear to me that the mother, in giving her evidence, was doing her best to be honest and truthful. She is young, she is still immature, and she has led an unfortunate and chaotic lifestyle to date. Her relationship with the child's father was not a good one, he has a substantial criminal record, is manipulative and violent. She has done well to remove herself from his control and influence. She has now achieved some stability in her life, and her presentation to me showed over time a marked improvement. I first saw her at a preliminary hearing in September 2011, and by the time she concluded her evidence, in March 2012, I could see improvements in her character and demeanour, which is to her credit. Were I just deciding this case on the basis of her presentation to me at the present time, and to have no regard to her earlier history, then a different outcome might be possible. However, I have to have regard primarily to the child's interests and welfare over time. It is therefore just as important to look back as it is to look forward.

 

Submissions
[13] Mr Munro, for the petitioners, referred to the 2007 Act as being the relevant legislation. I have reproduced the relevant sections in this judgment. Section 80 describes a permanence order, Section 84 sets out the conditions and considerations and applicable to the making of an order, and Section 83 sets out the conditions applicable to an order granting authority to adopt.

[14] So far as Section 84 is concerned, at sub-section (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 it should not be made. Then by sub-section (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. Sub-section (5) directs the court to if appropriate give the child an opportunity to express views, have regard to such views, religious persuasion, racial origin etc. and the likely effect on the child of the making of the order and be satisfied that where there is a person who has the right mentioned in subsection (1)(a) of Section 2 of the 1995 Act (the parental right to have the child living with him or otherwise regulate the child's residence) then the court must be satisfied that the child's residence with that person is or is likely to be seriously detrimental to the welfare of the child.

[15] Putting that into context, the child is currently subject to a supervision requirement imposed by the children's hearing. Such a regime, it was submitted, provides no long term security or stability for a child such as the one we are dealing with. As was said by the Sheriff Principal in the case of Aberdeenshire Council v TW and KW "I take it to be uncontroversial that three essential requirements of a healthy childhood are permanence, continuity and stability". It was submitted that in the interests of her welfare it would be better for the child that a permanence order be made, as such an order would indeed provide permanence, continuity and stability. Given her age the child is obviously too young to express any view, and the social work report confirms that she has no specific religious, racial or cultural needs that require to be considered, facts that are admitted by the mother in her answers. The child's mother has the right to have the child living with her, in terms of Section 84(5)(c) of the 2007 Act, but it was the petitioner's submission that the child's residence with her mother would likely be seriously detrimental to her welfare. She has been away from her mother's care since she was 10 weeks old, and there has been no contact between them since 21 December 2010. She has been with her current carers, who are her prospective adopters, since June 2011, and the evidence is that she is well settled there. It was submitted that if she was to be removed from them and returned to her mother she would likely be very distressed. Although no expert evidence has been led, the court ought to be able to estimate the probable effect of uprooting a child of tender years and transferring it from adoptive parents, with whom it is happy, to one ofits natural parents of whom it has no recollection. Such were the comments of Lord Reid in the House of Lords in 1971.

[16] The petitioners further submitted that not only would the act of returning the child to mother's care be seriously detrimental to the child's welfare, but her continued residence there would also be to her detriment. Although at a very basic level the mother appeared to demonstrate parenting skills there were concerns about her ability to interact with her daughter, and the wider concerns about her ability to look after the child on a full time basis. There is no evidence to suggest that these issues have been addressed by the mother. Any suggestion that the mother had changed had to be looked at in the context of antisocial behaviour at her tenancy, and her recent contact at New Year with the child's father. Finally it was argued that if the child was returned to the mother's care ongoing support would be vital. The mother's failure over the past many months to engage with support previously, must indicate concerns about engaging in the future. Accordingly in the council's submission, the grounds for the making of a permanence order were satisfied.

[17] Once those grounds are satisfied one has to consider the terms of Section 83. The request for authority for adoption must have been made in the original application, and in this case that was so. Next the court has to be satisfied that the child has been or is likely to be placed for adoption, and again the evidence indicated that that was so. The court must then decide either that consent is given by the parent or that consent should be dispensed with on some ground set out in sub-section (2). In this case there is no consent from the mother, and none is required from the father, due to the lack of parental rights and responsibilities held by him. It was submitted by the petitioners that sub-section (3) applies. The court should hold that the mother is unable satisfactorily to discharge the parental responsibilities or parental rights, other than contact, and is likely to continue to be unable to do so. The question therefore is whether the mother can safeguard or promote the child's health development and welfare. In the present case there is evidence that she has failed to safeguard and promote her own health and welfare, and there is no evidence that she can provide direction and guidance. The mother herself was provided with support from social work, from Barnardo's and from other sources. She failed to engage with those who were there to help. It was made clear to her when the working agreement was signed in November that this was very much her last opportunity to prove herself, but she failed to do so. She gave the impression not of a mother who was trying her hardest to get her daughter back, but of a mother who was putting herself first and no longer appeared to care for her daughter. As the curator ad litem confirmed in her report, "parents showed an inability to prioritise the child's needs over their own". Accordingly there was sufficient to dispense with consent on this ground. However if the court was of the view that the ground under Section 83(3)(b) did not apply, then it was submitted that the grounds stated at Section 83(2)(d) did apply, namely that the welfare of the child otherwise required consent to be dispensed with. It was submitted that even if it were to be determined that a parent had completely changed their lifestyle and could now be regarded as a model parent, if the child has formed a close bond with prospective adopters it could be argued that the welfare of the child requires that the child be allowed stay where they are, and that the parents' consent for that reason be dispensed with. In the present case the child views her carers as her parents, according to the curator's report. The mother did not appeal against the decision of the children's hearing. This allowed the child to be placed with the prospective adopters. She had the opportunity of doing so but her failure to do that means that she has now left matters too late.

[18] The question the court requires to ask is "Is there a ground for dispensing with parental consent?". The second question is, "Should consent be dispensed with?". On the submission of the petitioners there is a ground for dispensing with parental consent, and primarily that was 83(3), but if not then certainly 83(2)(d). Further there should be a dispensing of that consent. Under Section 83(1)(d) it would be better for the child if the court were to grant authority for the child to be adopted than if it were not to grant such authority. In view of the child's young age (she is barely 2) it would be better for her to become part of an adoptive family than remain in long term foster care. That was the view of the advice hearing, and of the curator. The court is also directed by Section 14 of the Act which deals with the consideration applying to the exercise of powers. By sub-section (1), a court or adoption agency must have regard, in coming to a decision relating to the adoption of a child, to (a) the value of a stable family unit in the child's development and (b) the likely effect on the child throughout the child's life of the making of an adoption order. It was accepted that there were contrary authorities on whether Section 14 was engaged at this stage in the process, but if it was relevant, then the court should take into account the value of a stable family unit in the child's development, and recognise that it was a lifetime effect by making an adoption order, rather than the childhood effect (until 16) of a permanence order.

[19] All in all, it was submitted for the petitioners, there was sufficient compelling evidence to allow the court to make a permanence order containing the mandatory provisions of Section 81, with ancillary provisions in terms of Section 82 and for authority to adopt. The mother's rights and responsibilities should be extinguished and be vest in the council, with the exception of the responsibility and right to contact, and in that regard I was urged to allow no contact between the child and any relative. It was accepted that Michelle Roe had raised the option of letter box contact, but it was the position of the petitioners that there should be no contact at all, and that the court could, if appropriate, make some direction in that regard. Finally I was asked to revoke the supervision requirement, on the basis that the order was being granted.

[20] I then heard from Miss Herbert for the mother. She rehearsed the evidence, highlighting the history, the efforts made by the mother, the unproven allegation against her, the attempts through Barnardo's at rehabilitation, the problems with the weather at a critical juncture, and her current situation. Mother had been a young, vulnerable and difficult girl. She had found it difficult, as do many in her position, to break out of the cycle of domestic violence in which she found herself. She was isolated from most of her family, and due to her own problems such as ADHD, found it difficult to deal with advice. It was clear however that she had kept her daughter clean and well looked after in the early days, and Barnardo's confirmed that her basic care was good, such as it was. Contact had been working, albeit in an artificial setting. Mother had difficulties in her relationships with social workers, some of whom had formed an early view of the mother. Foe example, Gail Norrie, the senior practitioner, had referred to her "very obvious dishonesty" which was unfair, and belied a view. Mother felt that she was always being criticized, and got no encouragement or credit. It was accepted that she had failed to find suitable accommodation for herself and the child until April 2011, and that by then the child had been away from her for several months.

[21] Whilst mother accepted that there were some fair criticisms of her early performance, she had moved herself on, and changed for the better. In particular, she now had a flat, she had obtained an interim interdict against her former abusive partner, and was seeking medical help with her various health issues. She was in a much better place to be able to care for her child. Thus, she opposed the application, and wanted the child returned to her. Her fallback position was that she should have contact. She accepted that she would by now be a stranger to her child, and therefore proposed a gradual reintroduction. She was sure the child would have questions about her past, which only she and the father could answer, and it was only right that a child should be with its mother.

[22] In considering the legislation and section 84 in particular it was argued that the court had a difficult balancing act to carry out under subsection 3. Would it be better for the child that the order be made than not made? The mother argued that it was not. The court had to have regard (S84(5)(iii)) to the likely effect the order would have on the child, and by ss 5(c)(ii) be satisfied that the child's residence with the mother would be seriously detrimental to her welfare. Thus it is not the move back that has to be considered but the actual residence with the mother that is the test. In this case the mother's parenting skills were more than basic, indeed better than many. She was now engaging with support workers, both for tenancy and money advice. The father was no longer on the scene. She had attended all court hearing and was displaying a significant maturity compared with 2010 and early 2011. For these reasons it was not appropriate to make a permanence order.

[23] In respect of the authority to adopt, and considering s83(3)(b) the court had to look at the present and future, not the past, in determining whether a parent is unable satisfactorily to discharge the parental responsibilities or exercise the parental rights, other than contact. This is because ss (c) has the wording "is likely to continue to be unable to do so." It was argued for the mother that she is now in a position to satisfactorily discharge her parental responsibilities and rights in respect of the child, and therefore the order for authority to adopt could not be granted. She was not prepared to consent. It was accepted that the council sought to use s83(2)(d) as an alternative, so that if the child's welfare demanded it, her consent could be dispensed with. However, it was not required at this stage. The question of contact was still open, and if any order was to be granted, a permanence order alone would suffice. Nor was it appropriate to vest parental responsibilities and rights in the prospective adopters. No doubt if this application was granted, an adoption petition would soon follow, but there was no guarantee that the placement would not fail. The mother, and the court, did not know who the adopters were; the Children's Hearing had placed the child with them, but adoption decisions are for the court, which has different criteria to apply.

[24] Finally, with regard to contact, it was argued that it was in the child's interests that it take place with the mother, who also wanted it. There are many children who for one reason or another only see a parent or relative once or twice a year, or less. The fear of the mother is that if authority to adopt is granted now, without any order for contact, then when the adoption application was lodged, there would be no intimation to the mother, who would be unable then to seek contact. It should be dealt with now. Letterbox contact was insufficient; face to face contact on a minimum of twice a year was sought in the event of the application for permanence with authority to adopt being granted.

Discussion

[25] This is a fairly typical, but undoubtedly sad, case with which courts are all too familiar. A very young mother, an abusive partner, no serious and consistent family support, drugs, ADHD, housing issues and immaturity; all the hallmarks of a problem waiting to happen. The Social Workers were correct to be concerned, and involved, from the beginning. I have no doubt that mother did her best, in very difficult circumstances. But it had to be recognized that despite help to remove away from the abusive partner, she returned just a few days later, and that it all probability she maintained a relationship with him for several months, and was still willing to offer him accommodation in January 2012. She may well have obtained an interdict against his abuse of her, but she recognizes that he may still have a role to play in the child's future. I do not consider that he is completely out of the scene; indeed he opposed this petition until he failed to fully instruct his agents, and appear at the proof. He spent a few days with the mother at New Year, and the mother referred to the questions the child might have which only "a mother and father" can answer. There is a real risk that if the child were to be placed back with Mum, then Dad would quickly reappear, and that would not be in the child's long term interests. I also accept that the mother has matured, and improved both herself and her understanding of what is required to look after a child. I have no doubt that were her circumstances now to result in a new baby, she could be a good and successful mother to that child in her present mental, physical and social condition, albeit with some supports. But the court has to consider her present child, and the paramount consideration, as required by s84(4) is to have regard to the need to safeguard and promote the welfare of the child throughout childhood. I am in no doubt that the mother has been thus far unable to safeguard and promote the welfare of the child, and consequently as the test is "throughout" childhood I have to have regard to the past as well as to the future in considering the application.

[26] The starting point is section 84. The child is under 12, so subsection (1) does not apply. The child is incapable of consenting to the order, due to her young age. The first question then is whether it is better to make an order than not. In this case, she is subject to a supervision requirement imposed by the Children's Hearing. Such a regime does not provide long-term security or stability for a young child. Some form of permanence is better than the current arrangement, so the choice is between residing with mother, or the granting of the permanence order applied for. Before making a permanence order the court must have regard to the child's views, but here she is too young to express them. She has no religious persuasion, and she and both parents are white, Scottish. The court is also directed to consider the effect on the child of making the order. The evidence is that she is well settled and thriving in the care of her current carers where she has been since June 2011. Were the order to be made, such a beneficial situation would continue. The effect of not making the order, and returning her to the mother is likely to cause her significant distress. I do not need expert evidence to tell me that to remove her from her current situation and transfer her to someone who will by now be a complete stranger (her mother) would probably be seriously detrimental to her welfare. Consequently, I am of the view that the conditions and considerations of s84 have been fully made out. In any event, there has been evidence of anti-social behaviour at the mother's accommodation, and fairly recent contact with the father. The mother still requires ongoing supports in the community, in respect of her health, her finances and her tenancy. She would undoubtedly need ongoing supports in connection with her parenting of the child. In the past she has shown an inability to engage with the supports on offer, and whilst she may well have matured, it would be a significant risk to the child to be returned now. These factors also raise into question that any future residence with her mother would also be seriously detrimental to the child's welfare. I am therefore satisfied that the grounds for making the permanence order have been made out.

[27] Turning to the authority to adopt, the court is directed to section 83. The request was contained in the application, and the child has been placed with prospective adopters. Thus subsections (1)(a) and (b) are made out. The court then has to consider whether consent had been given, or whether it can be dispensed with on one of the grounds set out in subsection (2). The starting point is that subsection (3) applies, namely that there is a parent who has parental responsibilities and rights, other than relating to contact, in this case the mother. The question then is whether she is unable satisfactorily to discharge those responsibilities or exercise those rights, and if so, whether that is likely to continue to be the case. This is the "present and future" test. Thus far, the mother can be said to have failed to promote and safeguard the child's health development and welfare, largely because the child has not lived with her for such a large proportion of her short life. There is also credible evidence that the mother has failed to safeguard and promote her own health and welfare. She has led a chaotic life. She was unable to prioritise her child's life over her own. But the section also requires the court to be satisfied that such a situation "is likely to continue". In this case I am not satisfied that this can be made out. She has made some significant improvements in her lifestyle. She currently lives alone, in accommodation suitable for herself and a child. She has started engaging with medical professionals. She may well improve her situation further. Accordingly, whilst s83(3)(b) has been made out, I am not satisfied that s83(3)(c) has been made out.

[28] The consequence of that is to return to s83(2), this time subsection (d), to consider whether "the welfare of the child otherwise requires the consent to be dispensed with". The child has a close bond with her prospective adopters, she no longer knows her mother whom she has not seen for well over a year. Despite s83(3)(c) not being made out, there are still question marks over the mother's situation and abilities as a parent. I am satisfied that there is a ground for dispensing with consent, namely s83(2)(d). Then I have to consider whether consent should be dispensed with. I am satisfied that the child's welfare demands that her long term future be secured by dispensing with the consent of both parents, and granting authority to adopt. I have said little about the child's father, he neither being party to the proof nor possessing parental rights. It is sufficient to record that he has spent a significant period of the child's life in custody, or on bail with condition to stay away from the child's mother. He did attend for some supervised contact, but this ended in late 2010. The child's welfare demands that his consent, should it be required, be dispensed with. I am also satisfied that it would be better for the child that authority to adopt be granted than not granted. She ought not be kept in the care system unnecessarily long. She will benefit from the security and permanence that an adoption should bring. I have considered s14, which in my view applies to cases such as these. The court is making a decision "relating" to the adoption of a child. I accept that a stable family unit is of significant value to a child generally, and to this child specifically. I also consider that it will have a beneficial effect upon her whole life if the order is made.

[29] The final issue to be determined is that of contact. The mother seeks two visits a year, should the adoption go ahead. The council suggests letterbox contact. Whilst I can well understand the mother's desire to see her child, and be part of her life, I think that having regard to the child's long term interests it is best to sever the connection now. The child should at an appropriate age, be provided with information about her birth parents, and the mother should be able twice yearly to provide communications to a nominated social worker, which at a suitable time can be passed on to the child. Additionally, social work should provide information on an annual basis to the mother concerning the welfare and progress of the child, but not in such a way as to disclose her whereabouts.