Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

Case Number AD4/12

JUDGMENT

of

Sheriff Kenneth A Ross

In the Petition of

Dumfries and Galloway Council

Petitioners

For a Permanence Order in terms of section 80 of the Adoption and Children (Scotland) Act 2007 in relation to the child R

Petitioner: Miss McNaught, Solicitor, Dumfries and Galloway Council

Father: McMurchie of Primrose & Gordon, Solicitors, Dumfries

Mother: Hann of Hann & Co, Solicitors, Annan

 

DUMFRIES: 17 July 2012

The Sheriff, having considered further the joint motion by the parents of the child R to allow contact between the parents and the child and having heard the solicitors for the parents and the solicitor for the petitioners, Grants same; In terms of section 97(2) of the Adoption and Children (Scotland) Act 2007 Makes an interim order that the child R shall have contact with his parents together for one hour at such time before 16 August 2012 as shall be arranged by the petitioners; such contact will be supervised in the same manner as the contact allowed by the children's hearing prior to February 2012 and will be observed, in such manner as he deems appropriate, by Dr Richard Woolfson, Chartered Psychologist

 

 

Note:

Introduction

[1]   This is one of four related applications in which Dumfries and Galloway Council ("the Council") seek permanence orders in respect of four siblings in terms of section 80 of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act"). Each application also seeks authority for the child to be adopted in terms of section 80(2)(c). The child in the present application is R, a boy aged twenty one months. His siblings in the related applications are L, a boy aged four years and eleven months, A, a girl aged three years and K a girl aged three years and eleven months. The application is opposed by both parents. It called before me in relation to a motion by both parents for an interim order in terms of section 97(2) of the 2007 Act to allow one contact session with the children lasting one hour to be observed by a Chartered Psychologist instructed by them in the proceedings. A proof has been assigned in the application for September. The psychologist has been instructed to prepare a report on behalf of the parents and as a possible witness at that proof. As part of his preparation he has indicated that it is desirable, and probably necessary, that he has the opportunity of observing R and his siblings when they are with their parents.

[2]   I heard argument on the motion on 17 July 2012 and granted the motion. When doing so I explained my reasons. Because of the apparent novelty of the issue raised, I have added this Note to my interlocutor which sets out and expands on that explanation.

[3]   R is subject to a supervision requirement in terms of section 70 of the Children (Scotland) Act 1995 ("the 1995 Act"). It is unnecessary, for present purposes, to rehearse the details of why that requirement was imposed. Suffice to say that a child protection order was granted in May 2011. That was followed by a series of children's hearings and place of safety warrants when the child was placed with foster carers. A supervision requirement was made in August 2011 that the child should remain in care and reside with foster carers. A condition was imposed in the requirement that the child should have supervised contact with her mother for one hour each week and with her father for one hour each fortnight. After further procedure and meetings, the Council decided that the present application for a permanence order should be made. On 17 February 2012 the children's hearing varied the supervision requirement and imposed a condition that the child should have no contact with either parent. The application for the permanence order was made on 20 February 2012.

Submissions

[4]   The respondents helpfully lodged a joint written submission in support of their motion. It is with the process. In essence, it was submitted that the grant of the motion would assist in the determination of the application and particularly in relation to the various tests set out in section 84 of the 2007 Act. The view of a psychologist who had observed the children with their parents would be important in that. A motion in terms of section 97(2) was both competent and appropriate. A possible alternative route, by requiring a review of the supervision requirement in terms of section 73 (6) of the 1995 Act, was competent but would not be appropriate and would be less effective in terms of time and cost. In support of these submissions, I was referred to the relevant provisions of the 1995 and 2007 Acts, which I discuss below, and to City of Edinburgh Council, Petitioner (No. 1) 2010 Fam LR 89 ("Edinburgh 2010"), a decision of Sheriff K E C Mackie, and City of Edinburgh Council, Petitioner 2011 Fam LR 83 ("Edinburgh 2011"), a decision of Sheriff Holligan. There was also a lengthy recital of the part which both articles 6 and 8 of the European Convention of Human Rights and the UN Convention on the Rights of the Child might play in the matter and reference to several reported cases, both domestic and European, which were said to offer assistance in interpreting the meaning and effect of section 97(2) and the related sections of the 2007 and 1995 Acts in the context of these Conventions.

[5]   The submission for the Council was in two parts. Firstly, it was submitted that the order sought could not competently be made. Sections 97(1) and (2) required to be read together. Any interim order in terms of section 97(2) was, and could only be, an interim permanence order. Such orders could only be made on the application of the local authority and not by the parents of a child. Such an interim permanence order could only be made if the court were satisfied that the test for the grant of a permanence order set out in section 84(5)(c) had been met. To grant the interim order would require the court to pre-judge the issue which the application sought to determine. The appropriate course for the respondents, if they sought such an order, was to require a review of the supervision requirement in terms of section 73(6) of the 1995 Act; with a possible appeal to the sheriff if the children's hearing did not seek to vary the requirement to provide for the contact sought. It was accepted that, if the hearing were minded to accede to the parent's request for the one hour period of contact, a report in terms of section 95(2) would require to be submitted to the court and that any variation of the requirement could only take place after the court had referred the matter to the principal reporter. Secondly, if making the order sought were competent, it should not be granted. It would be contrary to the interests and welfare of the children. It would be likely to result in emotional confusion. The history of contact indicated that the two girls would be distressed and would refuse to go. I was referred to the relevant sections of the 1995 and 2007 Acts and to Plumtree: A Guide to the Adoption and Children (Scotland) Act 2007 (BAFF). It was submitted that neither of the Edinburgh cases was of assistance because each related to reports by the children's hearing in terms of section 95 rather than motions in terms of section 97.

Discussion

[6]   The statutory scheme for the making of supervision requirements and any conditions contained in them (most significantly, perhaps, about the appropriate level of contact with the parents of a child) needs little explanation. In the first instance these are entrusted to the children's hearing but, importantly, subject to appeal to and review by the sheriff. The powers of the sheriff in such appeals are wide ranging and include the power to remit to the hearing for reconsideration, to discharge the referral and bring an end to the referral proceedings or to substitute his or her own decision for that of the hearing. Before the 2007 Act, any order for contact made by a court in respect of a child was effectively suspended if the child was or became subject to a supervision requirement (P v P 2000 S.L.T. 781). That remains the law. In applications for adoption or freeing for adoption under the Adoption (Scotland) Act 1978, or applications for parental responsibilities orders in terms of section 86 of the 1995 Act, the sheriff was not empowered, in these processes, to make any interim order allowing contact between a child and its parents. Indeed, apart from orders in terms of section 25 of the 1978 Act (in effect a sort of provisional adoption order) there was no power to make interim orders of any kind in these processes.

[7]   The 2007 Act introduced significant changes in adoption procedure. It allowed conditions to be attached to adoption orders which might permit the court to order post adoption contact with the child's natural parents. While such conditions may be attached to an adoption order, no interim order for contact can be made in the adoption process while it is pending. A parent seeking contact while an adoption application is pending will, if the child is subject to a supervision requirement, require to seek a review of the requirement by the hearing to impose a condition for contact (with an appeal to the sheriff if that is refused). If the child were not subject to a supervision requirement, an action for contact in terms of section 11 of the 1995 Act would be the appropriate course.

[8]   The 2007 Act replaced parental responsibilities orders with permanence orders. It abolished freeing for adoption orders. But it permitted the court, in the context of a permanence order, to grant authority for the child to be adopted. Significantly, for present purposes, section 97(2) of the 2007 Act permitted the court, where an application is made for a permanence order, to make "such interim order as it thinks fit". As almost all children in respect of whom applications for permanence orders are made are likely to be subject to supervision requirements, the 2007 Act made detailed provision for the interaction of the power of the court to make interim orders and the position and powers of the children's hearing to modify such requirements while any permanence application is pending. The relevant sections of the 2007 Act are:

95 Duty of children's hearing to prepare report for court

(1) Subsection (2) applies where-

(a) an application is made for a permanence order, or variation of such an order, in respect of a child,

(b) the application has not been determined (or, as the case may be, withdrawn or abandoned), and

(c) a children's hearing proposes to-

(i) make a supervision requirement in respect of the child, or

(ii) modify, under paragraph (c) or (d) of subsection (9) of section 73 of the 1995 Act, a supervision requirement that has been made in respect of the child.

(2) The children's hearing must prepare for the court to which the application has been made a report containing such information as the Scottish Ministers may by regulations prescribe.

(3) In subsection (1)(a), the reference to variation of a permanence order includes a reference to amendment of the order to include provision granting authority for the child to whom the order relates to be adopted.

 

96 Application: effect on supervision requirement

(1) Subsection (2) applies where an application is made for a permanence order, or variation of such an order, in respect of a child.

(2) A supervision requirement in respect of the child may not be-

(a) made, or

(b) modified under paragraph (c) or (d) of subsection (9) of section 73 of the 1995 Act,

until the application is determined (or, as the case may be, withdrawn or abandoned).

(3) Subsection (2) does not apply if the court to which the application is made refers the child's case to the Principal Reporter (whether following receipt of a report under section 95 or otherwise).

(4) In subsection (1), the reference to variation of a permanence order includes a reference to amendment of the order to include provision granting authority for the child to whom the order relates to be adopted.

(5) In subsection (3), "Principal Reporter" has the same meaning as in Part II of the 1995 Act.

 

97 Interim orders and revocation of supervision requirement

(1) Subsection (2) applies where an application is made for a permanence order, or variation of such an order, in respect of a child.

(2) The appropriate court may make such interim order as it thinks fit.

(3) Subsection (4) applies where-

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

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

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

(5) If-

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

(b) the provisions of the order conflict, or are otherwise inconsistent, with the requirement,

the provisions of the order prevail.

(6) In subsection (1), the reference to variation of a permanence order includes a reference to amendment of the order to include provision granting authority for the child to whom the order relates to be adopted.

 

(a)   Can the order sought competently be made?

[9]   The initial question in relation to the present motion is one of the competence of making the order which the parents seek. Although not the subject of discussion before me, a preliminary question may be the true nature of the order sought. Both parties treated the motion on its expressed terms - an application for contact by the parents of the children. In my opinion that is not necessarily correct. The contact sought was, it seems to me, really ancillary to the true purpose of the motion which was to permit the psychologist to observe the children in the presence of their parents, and their relationship and interaction with their parents during that short period, for the purpose of preparing a report which might form the basis of evidence which he might give in the permanence application process. Viewed in that way, it was truly procedural; much the same as any motion for the production of documents or the inspection of a locus or other aspect of a case or any step necessary for an expert to be informed about the case and provide a report to parties or the court: all steps which would secure the expeditious progress of the case or cause the lodging of an expert report. So, in my opinion, as the motion was made at a pre-proof hearing, it was competent in terms of rules 36(3)(c) and (d) of the Sheriff Court Adoption Rules 2009 ("the 2009 Rules"):

"(3) At the pre-proof hearing the sheriff may - ....

                                                              i.      (c) order the lodging of joint minutes of agreement, affidavits and expert reports within such periods as he considers appropriate; and

                                                            ii.      (d) make any order as he considers appropriate to secure the expeditious progress of the case."

 

[10]                       If the motion had been made in terms of rule 36(3) then, for the reasons which I discuss below about my exercise of my discretion, I would have granted it. But that was not the basis on which it was presented and did not form the basis of my decision to grant the motion.

[11]                       The issue focussed in the discussion before me was whether an interim order for contact was competent in terms of section 97(2). There were three aspects to the submission of the Council that such an order was not competent; firstly, that the order sought was an interim permanence order; secondly, that a permanence order, whether interim or otherwise, could only be sought by the local authority; and thirdly, that an interim order could only be made if the court were satisfied that the test in section 84(5) (c) had been made out.

[12]                       The provisions of the 2007 Act, which regulate the interaction between the power of the court before which an application for a permanence order is pending to grant interim orders and that of the children's hearing to make and vary supervision requirements, have been the subject of judicial decision and comment in Edinburgh 2010 and Edinburgh 2011. I broadly agree with the conclusions reached by both Sheriff Mackie and Sheriff Holligan in these cases that the court is the principal forum for making decisions and orders about the child and his or her welfare while such applications are pending and that the power to make such decisions and orders is a wide one. But the factual circumstances in the present case differ from those in the two Edinburgh cases in a significant respect. In each of these cases the matter came before the court in the permanence order process because the children's hearing proposed to vary a condition which it had imposed in a supervision requirement. In each case the proposed variation was a reduction in the level of contact imposed as a condition of the requirement. The terms of section 96(3) prohibited the hearing from doing that unless the court had referred the child's case to the principal reporter. The mechanism to enable the court to consider and make any such referral is a report to the court in terms of section 95. In the present case the issue came before the court by a different route - a motion in terms of section 97(2) and rule 52 of the 2009 Rules. So, while providing helpful discussion and guidance on the interpretation of sections 95 to 97, what is said in the two Edinburgh cases about interim orders in terms of section 97(2) is obiter.

[13]                       I agree with both Sheriff Mackie and Sheriff Holligan that sections 95 and 96 of the 2007 Act might have been better expressed. Indeed, their order and construction is unnecessarily confusing. Section 96(2) prevents the children's hearing from making or modifying a supervision requirement while a permanence order application is pending. Section 95 provides a mechanism for the hearing to provide a report to the court if they propose to make or modify such a requirement. Section 96(3) disapplies the restriction in section 96(2) if the court refers "the child's case" to the principal reporter following such a report. If there is such a reference, then the hearing can make or modify a supervision requirement. Whether that is restricted to the modification set out in the section 95 report is unclear. Sheriff Holligan was of the view that the hearing would be so restricted. Sheriff Mackie was not so sure. I agree with Sheriff Holligan's view for the reasons he gives. And also because, while O v Rae 1993 SLT 570 makes clear that, in considering a referral following a remit by a sheriff after proof in an application in terms of section 65(9) of the 1995 Act, a hearing is not restricted to the grounds or facts which formed the basis of the sheriff's decision in such a proof, there is one important difference where the referral to the hearing follows a report in terms of section 95. There, the court is considering the modification which the hearing is proposing to make and not the section 52(2) threshold test in the section 65(9) proceedings. Inter alia the section 95 report must contain the terms of the proposed modification (Reg 3 of the Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Adoption for Permanence Orders) Regulations 2009). Rule 51 of the 2009 Rules provides for intimation of the report to parents with parental rights and for the possibility of a response by the parents and, at the discretion of the sheriff, a hearing at which such parents may appear. Intimation of the report to the parents is given together with a notice in Form 23 in the Appendix to the 2009 Rules. Rule 51(2) and paragraph 3 of the notice require the parents to lodge a form of response if they wish "to oppose the proposals of the children's hearing" or "to oppose the proposals in the report". This carries the clear implication that, if a different modification from that in the report were considered by the hearing after any reference in terms of section 95, the procedure would require to be repeated. But, for present purposes, the significance of rule 51 lies in the wide scope of the sheriff's discretion if the matter is not referred to the principal reporter in terms of section 96(3). It is (rule 51(5)) to "make such other order he considers appropriate for the expeditious progress of the cause".

[14]                       Section 97(2) is in similarly unequivocal and unrestricted terms. The court "may make such interim order as it thinks fit". The section does not describe such orders as "interim permanence orders" as was suggested by the Council. "Orders" are not defined in that way in Part 2 of the 2007 Act; nor elsewhere. Nor does section 97(2) or Part 2 restrict the making of interim orders to applications for them by the local authority which has made the application for the permanence order. Giving the words "interim order" their ordinary meaning, there is no need to construe them in that way. The section is wide enough to include orders requested by any party with an interest in the proceedings or by the court ex proprio motu on the assumption, of course, that parties with an interest in the proceedings are given the opportunity to make representations before any interim order is made.

[15]                       That the parents of K are interested parties is plain from section 86(2)(c) which obliges the court to permit them to make representations in the proceedings; and from the terms of rule 34 of and Form 15 in the Appendix to the 2009 Rules which provide for them to give notice of their intention to oppose the application.

[16]                       In Edinburgh 2011 Sheriff Holligan made an interim order. The report of the case seems to indicate that this was ex proprio motu; and that the local authority accepted that the making of such an order was competent. The matter had come before him on a report by the children's hearing in terms of section 95. The hearing proposed to reduce the monthly contact which the child enjoyed in terms of the supervision requirement. In one respect the case was similar in circumstances to the present case. The reduction of contact would have made it impossible for experts instructed by both the local authority and the father of the child to observe the contact to do so before the date set down for the proof in the permanence order application. The condition attached to the requirement would have allowed that but not if the requirement had been varied as suggested by the hearing. Sheriff Holligan refused to refer the matter to the principal reporter but made an interim order that there was to be one further period of contact before the proof on the same conditions as in the supervision requirement. Although, strictly speaking, the interim order was not necessary (the next period of contact in terms of the requirement would have taken place before the proof) the decision is supportive of a wide interpretation of what interim orders can be made and the circumstances in which that can take place.

[17]                       Even if the Council's argument is correct that an interim order is of the character of an interim permanence order, in my opinion, such an interim order may relate to questions of contact and may be made on the application of persons such as R's parents who have parental responsibilities and rights in relation to him. While section 80(1) of the 2007 Act permits the making of a permanence order on the application of the local authority and not by any other party, section 80(2) sets out what a permanence order can consist of. That includes the ancillary provisions set out in section 82. Among these are (section 82(1)(c)(ii)) the extinguishing of the parental responsibility and right to maintain personal relations and direct contact with the child on a regular basis in terms of sections 1(1)(c) and 2(1)(c) of the 1995 Act and (section 82(1)(e)) specification of arrangements for contact between the child and any other person. That is without considering the very general terms of section 82(1)(f) which provides that ancillary provisions can be those:

"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."

 

[18]                       So, permanence orders may contain provisions regulating contact. The logic of the Council's position must be that interim orders of that character may also contain such provisions. Section 86 permits the parents of R to make representations in any proceedings relating to an application for a permanence order. That must include any proposed provisions of the order relating to contact. In the present application contact is a live issue. The Council seek ancillary conditions that the parental responsibilities and rights of R's parents in relation to contact should be extinguished. Indeed, they go further and, in terms of section 82(1)(e), seek a provision in the permanence order that there should be no contact between R and her parents.

[19]                       That such representation should be restricted to simply reacting to what the Council seeks in relation to contact is frankly absurd. It would deprive the court which is seized of the issue of whether a responsibility or right to maintain contact should be removed or regulated of the opportunity of reacting to any changed circumstances of the child or his parents during the currency of the application. That would lead to inflexibility and an inhibition in securing the expeditious progress of the application process. Anyone with experience of section 51 appeals against decisions of children's hearings restricting contact between children and their parents or with freeing for adoption petitions or with post 2007 adoption applications which are opposed, or where post adoption contact is sought, will be familiar with arguments on behalf of the principal reporter or the local authority that parents have not actively or enthusiastically sought or sought to increase contact with their children. Very often in such processes the question of contact is the principal issue between the parties. It would be a strangely lop-sided interpretation of the court's ability to make interim orders about contact if the representations which interested parties can make did not include the ability to represent that such an interim order should be made. Such an interpretation would also seem to imply that representations in relation to any final orders, and the ancillary conditions which might be attached, were similarly restricted.

[20]                       Nor, it seems to me, is there merit in the Council's argument that, before any interim order can be made, the court must be satisfied that the test in terms of section 84(5)(c) has been met. In the present case that would be the test in section 84(5)(c)(ii) because the parents still have the right to have the child residing with them or otherwise regulate the child's residence albeit that right is effectively suspended because of the supervision requirement. The court would require to be satisfied that the child's residence with the parents "is, or is likely to be, seriously detrimental to the welfare of the child". That would render the making of interim orders virtually unworkable. It would require the court to pre-judge the issue raised by the application whether motions for interim orders were made by the local authority or any other interested party. It is unlikely that the Scottish Parliament intended section 97(2) to be unworkable. The court should not construe the section in that way unless such a construction is unavoidable. That is not the case here. Section 97(2) sets out its own discrete test - "as it thinks fit". I share Sheriff Holligan's surprise that the familiar considerations of the best interests or welfare of the child are not mentioned or referred to but I am not sure that they need be. Part 2 of the 2007 Act contains many references to these tests. For example, if the court is to specify, in an ancillary provision in a permanence order, arrangements for contact, these are to be such "as the court considers appropriate and in the best interests of the child". Again, as was argued on behalf of the parents, it has to be assumed that the Scottish Parliament would not legislate so as impose on the court a test which would conflict with international obligations such as those in Article 3 of the UN Convention on the Rights of the Child which has been signed and ratified by the United Kingdom though not transposed into UK law. It provides (Article 3) that the interests of a child are to be a primary consideration in all actions concerning them. If there is ambiguity, then the statute should be interpreted in a way which will lead to compliance with rather than flouting such obligations (Stair Memorial Encyclopaedia Reissue Child and Family Law, para 35). In approaching any decision to make an interim order in terms of section 97(2) the court requires to consider the interests of the child.

(b)   Should the order sought be made?

[21]                       The two principal factors in play here are the interests of the child and the expeditious process of the permanence application process, which is really one aspect of the child's interests. If the order is not granted then there is, on the information available to me, no prospect of the psychologist instructed by the parents observing the parents with the children. The issue of arranging an opportunity for such observation was raised by the solicitors for the parents when the matter first called before me at a preliminary hearing in April 2012. It was then clear that the local authority would not assist in facilitating that and were opposed to doing so. I raised the possibility that the hearing might be asked to consider the issue. That has not happened. Indeed, I was told that the hearing had recently postponed any consideration of the matter pending the decision of the court on the present motion. The proof on the permanence order application is due to commence on 24 September. The psychologist will be on pre-arranged leave during the fortnight or so before that. The contact sought will give the psychologist an opportunity for such observation and, possibly, to provide information to the court which will be helpful in determining whether a permanence order should be granted and which, if any, ancillary conditions should be attached to it. That information may not necessarily support the position adopted by either the Council or the parents but it will be informed and it is in the interests of the children that it should be available.

[22]                       I did not understand the Council to argue that the provision by the psychologist of an informed opinion about the relationship between the children and their parents would be adverse to their interests. It was the contact required to do that which was said to be likely to be so. It was submitted that renewed contact, even for an hour, would lead to confusion in the children's minds. The two girls would refuse to go and would be distressed. In was only on my specific enquiry of the solicitor appearing for the Council that I learned that neither of the two boys had been distressed by the previous contact and that neither had refused to go. The factual information on which that submission was based was strangely insubstantial. The decision of the hearing to cease the weekly or fortnightly contact which had taken place between May 2011 and February 2012 was made on 17 February. The hearing subsequently met on 20 February to provide advice to the court in terms of section 73(13) of the 1995 Act. Their advice has been lodged in process. It is silent on the question of contact. The statement of reasons for the decision taken on 17 February had not been lodged. I was not provided with a copy of them. I received no detailed explanation as to why the hearing had made its decision to end contact. That would be explained, apparently, in the course of the proof. What I was told was that contact had ceased because the two girls had refused to go to contact sessions in February and were getting upset after contact. A "goodbye" contact session had been arranged for 20 March. The two boys had gone. The two girls had not. I was also told that those observing the contact did not feel that there was sufficient interaction between the children and their parents. I was given no detailed information about why that view had been formed.

[23]                       For the parents I was told that they considered that there was a bond between them and the children. At the conclusion of the "goodbye" session the younger boy had told his mother that he loved her. It was submitted that the children were all very young. It was accepted that seeing their parents for an hour might, because of the lack of contact since February, cause some confusion but it was unlikely to have any detrimental effect.

[24]                       In my opinion the benefit of the opportunity for the psychologist to observe the children with their parents outweighs any temporary distress or confusion which contact might bring. On the information which I had that seemed unlikely in the case of the two boys. The two girls are very young. They are, in that respect, no different from other children of similar age in respect of whom contact orders are made daily in the courts. There is always a balance to be struck between temporary upset and longer term benefit. In the present case the balance is between the possibility of temporary upset and a specific beneficial purpose of contact - an informed report from an expert witness. That purpose may lead to the conclusion that previous fears about upset are unfounded. Or it may provide information that there is a potential for longer term difficulty if contact with the parents is re-established. As in most cases the key will be in the preparation of the children before contact. I am entitled to assume that those presently caring for them, and those employed by the Council to supervise that care, will carry out such preparation reflecting the law as set out clearly in Blance v Blance 1987 SLT 74 and endorsed by the Lord President (Emslie) in Brannigan v Brannigan 1979 SLT (Notes) 73. If that is done properly, conscientiously and responsibly, it is difficult to see the interests of the children or their welfare will be adversely affected.

[25]                       For the avoidance of doubt I should record that neither party suggested or moved that I should refer the children's case to the principal reporter before reaching any decision on the motion. I reserve my opinion on whether, in circumstances outwith consideration of a report in terms of section 95, that is either competent or necessary.

 

 

Decision

[26]                       In summary, a motion for an interim order for contact in a permanence application at the instance of parents who have not been deprived of the parental responsibility and right to maintain personal relations and direct contact with a child is competent. It is not restricted to the local authority. The discretion of the court to grant such a motion is wide but the court requires to have regard to the interests of the child in deciding whether to grant such a motion. Such interests may include the expeditious determination of the permanence order application and providing the court with information which will be of assistance in the determination of the application itself. In the present case, it is in the interests of the children that the motion for the supervised contact sought, for the purpose of allowing the instructed psychiatrist to observe the children with their parents, is granted.