HAMILTON SHERIFF COURT
Sheriff Principal B A Lockhart	AC36/11 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in note of appeal in causa GLASGOW CITY COUNCIL Petitioners and Respondents   against AA First Respondent And BB Second Respondent and Appellant

For Appellant: Ms R M Guinane, Advocate

First Respondent: Absent

Second Respondent: Ms Cartwright, Advocate

 

HAMILTON: 10 September 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 22 March 2013 complained of; reserves all question of expenses in respect of the appeal and appoints parties to be heard thereon on a date to be afterwards fixed.

 

 

 

 

NOTE:

Introduction and Background

[1] This is an appeal against a Permanence Order which was made by the Sheriff in Hamilton Sheriff Court on 22 March 2013. The first and second respondents are the parents of the child XX. The first respondent did not oppose the order. The second respondent has parental rights and responsibility in respect of the child and did oppose the order. The Sheriff heard evidence over some 17 days and heard submissions on a further 2 days. Evidence commenced on 8 August 2012 and terminated on 21 December 2012. The Sheriff heard submissions on 10 and 29 January 2013. Shortly prior to the second days submissions the child, the subject of this petition, attained the age of 12 years and the view was taken that his consent was then required to be obtained before it could be decided if an order could be granted. To that end the Curator Ad Litem and Reporting Officer already appointed was appointed again to explain to the child what a Permanence Order entailed and to see if he wished to consent to such an order. This was done on 26 February 2013, it was confirmed that the child wished to consent to the petition (his consent being number 17 of process). A report by the curator ad litem was produced. The sheriff then proceeded to produce his judgement.

 

[2] The Sheriff has set out very lengthy findings in fact in which he records the whole history of the child's contact with the Social Work Department. Grounds of Referral on 9 May 2006 were established at Glasgow Sheriff Court in respect inter alia the said child under Section 52(2)(c) and 52(2)(d) of the Children (Scotland) Act 1995 due to lack of parental care and neglect. At the children's hearing on 1 June 2006 the child was accommodated. The three children were placed with separate carers. Since then a variety of contact arrangements have been in place. In July 2007 the appellant asked to be reassessed in respect of having care of the child on his own. There had been changes in his circumstances, including the fact that he then had his own tenancy. At that time contact with the appellant was monthly. CC, a Social Worker did 10 sessions with the respondent. The purpose was to make an assessment. The appellant had constantly refused to engage with the Social Work Department who have been and are appropriately concerned that his lack of willingness to co-operate with them would adversely affect and impact on the welfare of the child. It is necessary that I record certain of the Sheriff's finding in fact, and findings in law as they are relevant to the disposal of this appeal. The Sheriff found inter alia as follows:-

39."Throughout his involvement with the Social Work Department the Second Respondent has often presented as hostile, aggressive and threatening, unwilling to engage with the Social Work Department and made working with him extremely difficult. He has consistently largely refused to acknowledge any culpability he may have had, and any shortcomings he may have had, in respect of his care of his children while he was with them. He consistently has blamed and continues to blame others for his own failures. He has however, of his own volition, attended anger management classes. He has some insight into the effect his behaviour has on the said child, for example, as referred to in finding in fact 77 hereof. However even there he still continued to blame others for his own shortcomings.

40. In July 2007 following a Looked After and Accommodated Child Review, a referral was made by the Social Work Department to the Children and Young Persons Specialist Services for an assessment to explore if it was in the children's best interests to be placed together. Production 7/3 of Process is a report prepared by SM, Clinical Nurse Specialist and SS, Clinical Psychologist in respect of the three children when they did this sibling assessment. The report is dated 3 October 2008.

41. The report concluded that the said child was displaying anti-social and antagonistic tendencies, values and beliefs and was particularly aggressive and antagonistic towards DD. He identified strongly with his father, commented on his father battering people and spoke about being sent to steal bread and milk. It was the conclusion of the authors of the report that the said child would benefit from a care environment where he was the youngest child and a decision to separate the siblings was recommended.

42. Volume 3 of the Defenders' productions at page 131 is a Minute of the Sibling Split Meeting held on Monday, 10 November 2008. It was felt that it would be detrimental for the children to remain together. The Looked After and Accommodated Children Team continued to consider the position. Production 7/4 is a letter from the Children and Young Person Specialist Services Looked After and Accommodated Team dated 5 March 2009 and it was still believed to be in the best interests of the children to be placed separately, continuing contact with their siblings.

43. The Second Respondent's disregard for Social Work advice continued to be destabilising to the children and in particular the said child XX. Other work was to be done with XX at this stage including an individual assessment which would contribute to the overall assessment of XX, with his case remaining open.

44. The first Permanence Review in respect of the said child had taken place in November 2006. For several reasons there were considerable delays in applying for permanence. The Sibling Split Assessment necessitated a referral to the Looked After and Accommodated Children Mental Health Team which took a lengthy period of time to complete its assessment, as it had to observe the children over a period of time to reach a conclusion. Additionally, there was a difficulty in finding suitable long term placements for the children due to a shortage of carers. There were difficulties in finding a placement for the said child XX due to his complex care needs.

45. Another reason for delay was that the Second Respondent appealed very many of the decisions of the Children's Panel resulting in many extra Panels having to be held. There would have had to have been around six Children's Hearings if no appeals had been taken place, but there were around fifteen extra as a result of appeals by the Second Respondent.

46. The said child was greatly upset by going to Children's Panels and detested and still detests going. He completes "Having Your Say Forms" rather than attend himself. The number of Children's Panels and appeals that take place in this regard have had an adverse effect upon the said child, causing him anxiety and distress affecting his security in his placement.

47. The time taken to progress permanence for the children including inter-alia the said child, was, despite the reasons referred to in the previous findings in fact, excessive. Notwithstanding that, that has worked to the benefit of the Second Respondent as it has meant that contact between the said child and the Second Respondent has continued, maintaining the bond between them.

48. During the period of CC's involvement with the said child as an allocated Social Worker, from 2007 until April 2009, after the children had been accommodated, she often supervised contact between the said child and his parents. A note of these contacts is summarised in the Care First Records, production 15 in the First Inventory of Productions for the Petitioners at page 29.

49. The quality of the contacts was variable. There were repeated concerns about the Second respondent's behaviour. He would show hostility to Social Workers and comment on his ongoing disputes with them in the presence of the said child. He from time to time told the said child that he would be returning to live with him. The Social Work Department frequently advised the Second Respondent that said comments were inappropriate and asked him to engage with them in discussion but he generally failed to do so.

50. The effect of contact with the respondents on the said child during this period was variable. Sometimes it was good but on occasion he became withdrawn. On occasion he lost his appetite. There were problems with him bedwetting which worsened on occasion after contact. This was particularly bad after contact with his father. Despite that, the said child continued to have a strong attachment for and identification with his father.

51. During that period, on occasion both Respondents failed to attend for contact. The said child was distressed by that. On occasion the Second Respondent arrived late for contact. As stated, from time to time he made inappropriate comments to the children during contact and displayed hostility to the staff. During one contact XX became upset.

52. The Social Work Department came to the view that the contact was of little emotional benefit to the said child and recommended to a Children's Hearing in early 2009 that contact should be reduced to once every three months. At this stage the said child wanted more contact with the Second Respondent not less, however contact was nonetheless reduced to once every three months on the recommendation of the Social Work Department, said contact to be under their supervision.

53. From time to time both Respondents including the Second Respondent would promise gifts to the said child and his siblings which were not given. The said child was promised a ring, a football strip and a bicycle by his father. Social Workers advised both Respondents not to promise the children gifts that they could not afford. That advice was ignored. Throughout the involvement of CC the Second Respondent did not provide a birthday or Christmas gift or card for the said child.

54. During this period, despite the children being subject to a condition that contact was to be supervised, the Second Respondent who knew of that condition on 27 January 2009 attended at the said child's and EE's school.

55. The Second Respondent refused to accept that his attendance at the school was in breach of that requirement and was harmful to the said child's welfare, and was defiant about it. On one occasion he attended with a gift of donuts for the said child which resulted in conflict between the said child and his sibling EE.

56. CC ceased to be the allocated Social Worker for the said child in April 2009.

57. FF became the allocated Social Worker for the said child and his siblings in October or November 2009. Contact at that stage between the said child and the Second Respondent was once every three months subject to supervision. In the case of the Second Respondent contact was supervised by two workers for health and safety reasons due to concerns for staff's safety. This was as a result of previous violent and threatening behaviour on the part of the Second Respondent to Social Workers. The Second Respondent made threats to various workers including FF.

58. Additionally there were concerns about the Second Respondent continuing to make inappropriate remarks to the said child during contact either in respect of the said child himself or in respect of the Second Respondent's ongoing perceived difficulties with the Social Work Department. On occasion he berated the Social Workers because of the inadequacy of the facilities available and frightened the said child by doing so.

59. The first contact supervised by FF was in November 2009 when the Second Respondent showed anger at the facilities which he felt were inadequate. The obvious anger from the Second Respondent upset the said child. Contacts continued to be variable in quality. After contact, from time to time the said child would lose his appetite, be withdrawn and bedwetting problems continued. Gradually the said child ceased to want as much contact with his father.

60. Around this time the carers looking after the said child were GG and HH. In July 2010 GG & HH wanted to take XX on a family holiday with them. The Second Respondent required to complete a form to assist them in obtaining a passport for the said child to allow him to go on holiday. He refused or at least delayed in doing so and as a result the passport could not be obtained and the said child did not get to go on holiday with his carers and their family.

61. Throughout the period of his foster care with GG & HH the said child improved, he became more relaxed and talkative, less serious and pre-occupied. He was happier and doing better at school. The Social Work Department was still looking for a permanent placement for him. He continued to have contact with the Second Respondent and it continued to be variable in quality. Sometimes he enjoyed it, sometimes it appeared to have an adverse effect upon him. It was apparent to the Social Workers working with the said child that whereas the First Respondent showed approval to the said child of his foster carers which gave him a degree of release, the Second Respondent did not do so and that resulted in difficulties for his son. At this stage the said child was seeing each Respondent once every three months with sibling contact once a month. The sibling contact worked well.

62. The Second Respondent continued his disagreements with the Social Work Department which had an adverse effect on the said child. On 27 August 2010 the said child was taken to hospital with a suspected broken hand following a fight at school. The Second Respondent learned of this and demanded contact with him. This was refused and he threatened to approach the carers' address to see his son. He was aware of the Supervision requirement. He gave verbal consent to medical treatment his son might require.

63. Thereafter the Second Respondent approached his son's placement in an effort to see him, as he had threatened. The family were not at home. He waited around for a while. He indicated to neighbours he had concerns for his child. The carers on hearing of this on their return were concerned about this and the placement with GG & HH was terminated. It had lasted over four years. The said child was taken to respite care. In his behaviour the Second Respondent showed little regard for the welfare of the said child and more to his own needs. He defied the Supervision Order and by his behaviour precipitated the removal of the said child from his placement causing him upset. He did not act in the said child's best interests.

64. The Second Respondent admitted approaching the said child at his (previous) school and placement in contravention of the Supervision requirement, but blamed Social Work for the breakdown of his son's placement, accepting no responsibility himself.

65. After this the said child's attitude to contact with the Second Respondent changed. Although the said child maintained a strong sense of family identity and had shown great loyalty to the Second Respondent for a period he did not wish to see him.

66. The said child was then placed at his current placement, with II & JJ. He was allocated to a new primary school chosen by JJ, which was a Catholic School taking non Catholic children. It was the best school in the area and the most appropriate one for him to go to in terms of the facilities offered. It was however a Catholic School and the Second Respondent had a strong Protestant identity and did not approve of Catholic schooling. The said child settled well in his placement and his school.

67. During all this period from the said child being accommodated, the various Children's Hearings continued the Supervision requirement in respect of the said child which is still extant today. Contact continued. On one occasion the Second Respondent advised the said child that he was going to abduct him from his school. The said child was greatly upset by this and hardly ate for around five days after this. The said child continued to be reluctant to attend Children's Hearings stating that he never wanted to attend any Hearings. He continued to do well in his placement and his bedwetting diminished. He did well at school academically and behaviourally. He began to state that he wished to attend a Catholic Secondary School so that he could remain with his friends.

68. On 7 February 2011 the Second Respondent cancelled contact with the said child due to being offered some temporary work. At this stage he had not seen the said child for six months. He had not given him gifts over Christmas and birthdays. On 12 July 2011 the said child stated to his foster parents that his father wet the bed after drinking sessions.

69. Contacts took place between the said child and the Second Respondent in April, August and October 2011. The said child was happy in his placement and did not wish any changes to contact or to his school. He displayed reluctance to go to the contact on 8 October 2011, and was withdrawn after contact and hardly ate or spoke.

70. On 18 January 2012 the Second Respondent attended his child's DD's nativity play ignoring advice that he would be breaching the Supervision requirement to do so. He made threats to FF of a violent nature. As a result of that, these threats were reported and he was arrested and questioned by the police. He then telephoned to ask who would be supervising contact with the said child, and when informed that it would be FF plus one other worker, he said that he did not want contact if FF was one of the supervising workers. Accordingly, contact was not arranged and did not take place.

71. During this period the Second Respondent continued to decline to accept responsibility for the children being taken into care, and continued to openly criticise the Social Work Department and behave aggressively and in an intimidating way towards Social Workers. Social Workers were of the view that he did so deliberately in front of the said child. He did not however appreciate the impact that this had on the said child which was an adverse one. He continued to display little or no insight into the effect his behaviour had on the said child. Although contact was enjoyed for periods of time between the said child and his father, the said child, because of his father's behaviour towards Social Workers and because he was advised by his father that he was seeking to have him returned to his care, had difficulty in settling down in his placement. He continued to behave adversely immediately following contacts becoming withdrawn and distant. He had problems with bedwetting, which on the balance of probabilities were caused or at least significantly contributed to by anxiety over contact with the Second Respondent. Contact in that respect had an adverse effect on him.

72. The Social Work Department's decision not to seek rehabilitation of the said child to his birth parents was accepted by the First Respondent but not by the Second. The said child was subjected to neglect and domestic abuse whilst in the care of both Respondents. The Second Respondent refused and still refuses to accept responsibility for that, blaming it all on the First Respondent, albeit he accused her of being an inadequate parent while he was staying with her.

73. The Second Respondent has demonstrated that he is a risk to Social Workers, and has assaulted one of them, verbally abused them and has demonstrated his continuing antipathy, aggression and intimidation towards them and his unwillingness to work constructively with them except on his own terms. He has been appropriately assessed, both in 2006 when he was assessed together with the First Respondent, and on an individual basis so far as his co-operation would allow, in 2007. These assessments were done properly and have also been ongoing in terms of the observation of contacts. The said child does not wish to return to the care of his father. He does not wish any increase in contact with him beyond once every three months.

74. It is anticipated by Social Work Department that the said child will remain in the care of Glasgow City Council and with his current carers until adulthood and thereafter if he wishes to do so. He is settled in his placement. It is regarded as a permanent one. He is attached to his carers. From time to time he has suffered from enuresis which worsens after contact visits. He has taken medication for that. He continues to detest attending Children's Hearings and is upset that his father calls them.

75. Contact visits with his father take place in the Social Work Offices, because Social Workers deem it to be unsafe to take him outside with his father. The said child recently has shown upset before and after contact visits with his father. On Tuesday, 2 October 2012 he soiled the carpet at his foster carers which he had never done before. This happened about an hour before he told his foster carer how he felt about contact with his mother and father. He admitted having soiled the carpet to the foster carer on Wednesday, 3 October, the following day. He was very upset by this. He stated that he felt that his father was not listening to him and was upset that his father was opposing the Permanence Order sought.

76. Since moving to secondary school the said child is doing really well. He is good at sports and keen on rugby. He is worried that his father is angry with him for siding with Social Work because he wants to remain in foster care. He also had concerns over going to a Catholic school because he thought his father would disapprove.

77. On 10 October 2012 the said child broke his arm playing rugby and had it reset in hospital. He was concerned that his father would be angry with him. He wet the bed. He was further upset and agitated. The Second Respondent was told by Social Work that the said child had soiled the carpet and took his son to task for that at the contact visit shortly thereafter. The said child was very upset at being questioned about that by his father. The Second Respondent blamed the Social Worker for telling him about it and stated that the Social Worker knew that he would then question his son and upset him. The Second Respondent at the time again showed little or no insight into the effect his behaviour would have upon the said child. He did later however accept that it had been the wrong thing to do, and showed remorse and regret for doing so.

78. Alternatives to a Permanence Order have been considered by the Social Work Department before making this application. The Petitioners rightly consider that rehabilitation of the said child with either Respondent is not appropriate or practical. If the said child remains under supervision he will continue to be subject to Children's Hearings. There have been many more of these than would normally be the case because of appeals by the Second Respondent. (Approximately fifteen extra Hearings have been convened because of these appeals.) That is of course a step that the Second Respondent was entitled to take. Despite all these appeals however the said child remains under supervision. The recurrence of regular and frequent Children's Hearings upset the said child. He strongly dislikes attending these and refuses to go. He is aware however that they are taking place, as he completes a "Having Your Say Form". He is upset by this. His security in his placement is undermined by it.

79. The said child is strongly of the view that he wishes to remain where he is and wishes this application to be granted. He seeks no increase in contact with the Second Respondent. He wishes to see him only every three months providing he is happy to do so. There are no suitable alternative family members to care for the said child. The foster carers do not wish to apply for a Residence Order. Because of the said child's bond and identity with his birth family, adoption is not a practical alternative to a Permanence Order and the said child wishes to remain where he is. He does not seek any increase in contact and wishes to attend for contact only when he wants to do so. Rehabilitation to his parents is not a practical alternative to permanence.

80. The Second Respondent has now his own two bedroomed tenancy. He had recently faced eviction from his home for rent arrears accumulated over a number of years but managed to avoid that. He has a history of domestic violence towards his former partner. He has a history of non-engagement with Social Work Services. He has voluntarily attended anger management classes in the past but still has difficulties with anger management.

81. The Second Respondent has a strong work ethic; however he is unreliable in his timekeeping having been late for court due to work commitments on many occasions during the evidence in this case. In the past he has frequently failed to attend meetings, Children's Hearings and contacts all in respect of his children including the said child when he was aware that they were taking place and his attendance invited. He fails to prioritise the said child's needs over his own. He still has an embittered and hostile attitude towards Social Workers. He has failed and still fails to co-operate with them and work with them. It is reasonably foreseeable and likely that he will continue to do so in the future. He refuses to take blame for things that happened in the past involving the care of the children including the said child, even when he was living in family with them. He blames his former partner for care issues that arose with the said child and other children. He himself also had responsibility for and was significantly to blame for these issues. He blames Social Work for any ongoing difficulties he has with his children. His refusal to accept any responsibility verges on the ridiculous, such as his suggestion that FF was responsible for the Second Respondent questioning and upsetting the said child in relation to the incident over soiling of the carpet prior to a contact in October 2012, referred to in finding in fact 77 hereof.

82. The Second Respondent is aggrieved at social workers over the fact that his contact with the said child is always now taking place within the social work offices, whereas sibling contact, and contact between the said child and his mother sometimes take place outside. The social work department are justified in their decision to restrict contact between the said child and the Second Respondent to its present location, given the risks posed by the Second Respondent to social worker safety based on past evidence.

83. No risk assessment has been carried out by the Petitioners in respect of the Second Respondent. They do regard him as a risk and in light of his history of violence towards Social Workers they are correct to do so.

84. No. 5 of Process is a report by the Children's Hearing of advice under Section 73(13) of the Adoption and Children (Scotland) Act 2007. That advice states that the said child has not resided with either Respondent for over five years. He his settled in his current placement, doing well at school and socially. It states that attending Hearings on a regular basis causes him a great deal of anxiety and distress. His wish is to remain in foster care where he will continue to thrive and develop. He feels safe with all his needs being met. It goes on to state that a Permanence Order would ensure that XX will have confidence in the belief that he will not be returned to his parents long term care but can have contact with his mother, father and siblings as deemed appropriate by him and the professionals. "

 

[3] The Sheriff then went on to make the following findings in fact and law:-

"1. That this court has jurisdiction.

2. The said child consents to the making of this order it having been explained to him by the Curator Ad Litem what the order entails.

3. It is better for the said child that the order be made than it should not be made.

4. Having regard to the need to safeguard and promote the welfare of the said child throughout his childhood a Permanence Order should be made.

5. That the mother, the First Respondent has consented to the making of this Permanence Order. The said child's residence with the First Respondent is, and is likely to continue to be seriously detrimental to the welfare of the said child.

6. The said child's residence with BB his father, the Second Respondent is, and is likely to continue to be seriously detrimental to the welfare of the said child.

7. It is practicable and in the best interests of the said child that the mother AA, the First Respondent, should have contact with the said child every three months under the supervision of the Petitioners' Social Work Department.

8. It is practicable and in the best interests of the said child that the said child's father BB, the Second Respondent, should have contact with the said child every three months subject to the supervision of the Petitioners' Social Work Department.

9. There being no requirement ongoing for compulsory measures of care, the Supervision requirement in respect of the said child can be terminated.

 

[4] The sheriff granted the prayer of the petition and made a Permanence Order in favour of the petitioners under Section 80 of the Adoption and Children (Scotland) Act 2007 in relation to the child XX. His interlocutor including vesting in the petitioners of the following provisions:-

(a) The mandatory provisions specified in section 81 of that Act namely -

(i) the responsibility mentioned in section 1(1)(b)(ii) of the Children (Scotland) Act 1995 to provide guidance appropriate to the said child's stage of development being beginning of the making of this order and ending with the day on which the said child reaches the age of eighteen.

(ii) The right mentioned in section 2 (1)(a) of that Act to regulate the said child's residence beginning with the date of making this order and ending with the day on which the said child reaches the age of 16.

(b) the ancillary responsibilities specified in section 82 of that Act namely;-

(i) to safeguard and promote the said child's health, development and welfare

(ii) To provide in a manner appropriate to the stage of development of the said child direction and guidance.

(iii) To act as the said child's legal representative.

(c) The ancillary parental rights (a) to control, direct or guide in a manner appropriate to the stage of development of the said child, and the child's upbringing and (b) to act as the child's legal representative.

And that for the respective periods specified in section 82(2) of the said Act.

The sheriff further extinguished the parental rights and parental responsibilities held by AA, the first respondent and BB the second respondent except as hereinafter provided. He specified that the first and second respondent should both have contact with the said child once every three months supervised by the petitioners social work department.

[5] The second respondent and appellant then lodged a Note of Appeal and thereafter parties lodged written submissions. I heard the appeal at Hamilton Sheriff Court on 20 August 2013. There were a number grounds of appeal lodged on behalf of the appellant in the original Note of Appeal. However, at the appeal, counsel for the appellant restricted her submissions to three grounds of appeal. I propose to deal with each ground of appeal in turn. In respect of each ground of appeal, I shall set out the ground of appeal, record the parties submissions and then give my decision thereon.

 

GROUND OF APPEAL ONE - Whether adequate reasons had been adduced by the sheriff to explain his grant of the ancillary provisions.

SUBMISSIONS FOR THE APPELLANT

[6] Counsel submitted that the jurisprudence of the European Court and the Supreme Court was to the effect that the court had to provide a reasoned judgement. I was referred to paragraph 39 in the case of against NJDB v JEG 2012 UKSC 21;

"It is the duty of a judge in every case to set out clearly the grounds for his decision. The appellant was entitled to be told why the sheriff reached the decision that contact with him was not in S's best interests and the reasons ought to be plainly set out so that they can be easily found and readily understood by the ordinary reader."

 

I was also referred to the cases of Elshotz v Germany 2000 34 EHRR 58 and Y.C v United Kingdom ECHR, 13 March 2012, 4547/10 which, it was submitted, confirmed that a judgement had to have reasons and the reasons required to be transparent on the face of the document.

 

[7] It was not suggested that the sheriff was other than thorough in relation to the grant of the mandatory provisions. The criticism related to the way in which he had granted the ancillary provisions. It was suggested he had not explained his reasons for doing so. He merely stated;

"Looking at all the circumstances it is appropriate and proportionate to grant the ancillary provisions."

 

It was submitted that the sheriff ought to have explained, in the interests of the child, why there was a need to grant the ancillary provisions.

 

[8] It was accepted that all that the 2007 Act said about the matter was that the court may grant the "ancillary provisions as it sees fit." It was submitted there was no

explanation or analysis of the evidence and the sheriff did not discriminate between mandatory and ancillary provisions. The sheriff ought to have explained why it was in the child's best interests that the ancillary provisions be made. He did not do that. Although he uses the words;" appropriate and proportionate", the use of these words did not make the decision appropriate and proportionate unless he gives an explanation. In paragraph 75 of his note (as opposed to the findings in fact which I have recorded), the sheriff stated;

"I will grant to Glasgow City Council the ancillary provisions sought to safeguard and promote the child's health, development and welfare and act as the child's legal representative, both of which appear to me to be appropriate and proportionate in light of the whole circumstances of the case."

 

This was not enough. The sheriff should have given detailed reasons.

 

[9] I was also referred to finding in fact 77 of the sheriff's note where he states:-

"...given all the circumstances of the case it appears to be appropriate and proportionate to do so."

It was submitted the sheriff required to explain why it was appropriate and proportionate. What he had not done in para 77 was explain why it is in the best interest of the child for the appellant to have the itemised parental rights and responsibilities removed.

 

SUBMISSIONS FOR THE RESPONDENTS

 

[10] In terms of section 80(2)(b) of the 2007 Act a Permanence Order is an order consisting of such of the "ancillary provisions" as the court think fit. The "ancillary provisions" are defined in section 82 of the 2007 Act. In terms of section 82(1)(a) of the 2007 Act the court may vest in the local authority such parental responsibilities and rights as it considers "appropriate". It was submitted that the sheriff in considering the ancillary provisions, had regard to the wording of section 82(1)(a). In addition, the Sheriff's use of the word "proportionate" was indicative that he has had regard to Strasbourg jurisprudence as was required to do - Principal Reporter v K [2010] UKSC 56. The sheriff correctly approached the matter of vesting the ancillary provisions in the Respondents.

The Sheriff found, in paragraph 75, that the grant to the petitioners of "the ancillary parental responsibilities" was "appropriate and proportionate in light of the whole circumstances of the case". The reference to the "whole circumstances" was a reference to the sheriff's findings in fact. These findings in fact were supportive of the Sheriff's order vesting parental responsibilities and rights in the Respondents.

 

[11] There were numerous findings in fact and further analysis in the sheriff's note as to the Appellant's inappropriate exercises of his parental responsibilities and rights and how these inappropriate exercises adversely impacted on the welfare of the child and failed to promote and safeguard his welfare. These were "all the circumstances of the case" which the sheriff provides as his reason for extinguishing the Appellant's parental responsibilities and rights (and those of the Second Respondent). It is clear from the sheriff's findings in fact that he extinguished the Appellant's parental responsibilities and rights on account of the Appellant's numerous abuses of those parental responsibilities and rights and with a view to safeguarding and promoting the welfare of the child throughout his childhood. In terms of section 84(3) of the 2007 Act the court in considering whether to make a permanence order and what provision the order should make is to regard the need to safeguard and promote the child's welfare throughout childhood as the paramount consideration.

 

[12] Esto the Sheriff's grant of the ancillary provisions was inadequately reasoned in his judgement,(which was denied) it was clear when reading the sheriff's decision as a whole that he gave careful consideration to the grant of the ancillary provisions. In determining whether the sheriff has considered all of the matters he was directed and required to consider under and in terms of the relevant sections of the 2007 Act, the Appellate Court was entitled to look at the sheriff's decision as a whole - S v City of Edinburgh Council 2013 Fam LR 2. When the sheriff's decision was viewed as a whole, it was clear that the sheriff had given careful consideration to the vesting of the ancillary provisions in the local authority and to extinguishing the parental responsibilities and rights of the Appellant and the Second Respondent. The Sheriff had not erred in law in relation to the grant of the ancillary provisions. He had given adequate reasons.

 

DECISION ON FIRST GROUND OF APPEAL

 

[13] I have no hesitation in taking the view that when the sheriff stated that the grant to the petitioners of "the ancillary parental responsibilities" was "appropriate and proportionate in light of the whole circumstances of the case", he was indicating that the "whole circumstances of the case" were the very detailed findings in fact which he had made.

 

[14] No exception was taken to the vesting of the mandatory provisions specified in section 81 of the 2001 Act. It was said that inadequate reasons were provided for the sheriff vesting in the respondents;-

"...(b) the ancillary responsibilities specified in section 82 of that Act, namely (i) to safeguard promote the said child's health, development and welfare (ii) to provide in a manner appropriate to the stage of development of the said child direction and guidance (iii) to act as the said child's legal representative.

(c) the ancillary parental rights (a) to control, direct or guide in a manner appropriate to the stage and development of the child, the child's upbringing and (b) to act as the child's legal representative."

 

In my opinion any reasonable person reading the findings in fact 39 to 84, which I have set out in detail in paragraph 2 hereof, would take the view that such responsibilities and rights should be removed from the appellant and vested in the respondents, having regard to the welfare of the child. Such a course was indeed appropriate and proportionate, and the evidence for that conclusion was contained in the very detailed and careful findings in fact which the sheriff made. This ground of appeal fails.

 

GROUND OF APPEAL TWO - The various alternatives to a permanence order had not been appropriately considered by the sheriff

 

SUBMISSIONS BY THE APPELLANT

 

[15] The petitioners and now respondents, being the local authority under the 2007 Act, are under a duty to consider alternatives to a permanence order. The proportionality of their interference in the child's and the appellant's Article 8 rights demand that they consider alternatives to such an order. The court must act in a Convention complaint manner (as was observed by Baroness Hale in Principal Reporter v K [2010] UKSC 56) and, therefore, before granting the order sought to be satisfied that the alternatives have been "appropriately considered." The sheriff was mindful of the duty upon the local authority and the Court and that presumably is why he dealt with this in his judgement.

 

[16] This criticism of findings in fact 78 and 79, which I have set out in page 9 hereof, prompted me to request the sheriff to prepare a supplementary note on the evidence led in respect of findings in fact 78 and 79 in order that this ground of appeal could be dealt with without extending the shorthand notes. In his note the sheriff states:-

"In the course of the proof evidence was given by FF, a social worker, in relation to alternatives to a Permanence Order. That was dealt with in part by his report which forms No. 4 of Process at page 24 paragraph 236 where he states -

"2.There are no appropriate family members who could care for XX and seek a Residence Order in terms of Section 11 of the Children (Scotland) Act 1995. Social work have never received any contact from XX's extended paternal or maternal family requesting information. They have never expressed an interest in taking on a caring role. No extended family alternative has been proposed by either parent. It would not be appropriate for the foster carers to seek a Residence Order. If a Residence Order were granted XX would no longer be a looked after child. It is felt necessary for there to be ongoing social work input into XX's life and also to assist the foster carers in maintaining a long term placement for him.

 

3. FF went on to indicate in giving evidence on 10 August 2012, that his conclusions when giving evidence were the same as those he had reached in preparing the report in 2011. FF gave evidence on 15 August 2012 under cross-examination that the foster carer JJ did not want a Residence Order and that he had discussed it with her. He explained that there were other children in her care and that there were no Residence Orders for them but they were on long term care.

 

4. As stated in my judgement I consider that no major issues of credibility arose with FF and I accepted his evidence in regard to this matter. He was a professional social worker focussed on the matters on which he gave evidence.

 

5. JJ the foster carer of the said child gave evidence on 24 October 2012. No. 16 of Process was an Affidavit sworn by her on 9 October 2012 which she incorporated into her evidence. Although she mentions the Permanence Order being sought at paragraphs 11 and 12 of that Affidavit, nothing was said in relation to her seeking one herself. She did give evidence that the placement with her was a long term one for XX who had said he wanted to stay with her until he reached full time education. She stated that she did not remember FF mentioning a Residence Order or an application by her husband and herself and that the basis when XX came to live with them was that they would offer him a home on a long term basis with no plans to move him. She stated that FF did not discuss funding for XX on a different basis to that of foster care, and never discussed adoption as XX was not with them to be adopted. She stated he did not ever come with a view to being adopted just fostered. She gave evidence about various training courses she had been on and also gave evidence in relation to foster care of XX and other children. She went on to give evidence about XX's plan for the future being that he would remain in her care until he went to further education and be able to come back and visit after that, indicating that there would be a place for him. She confirmed she did not envisage giving up her role as a foster carer. Significantly, I felt, JJ gave no evidence that she sought a Permanence Order.

 

6. I accept that there is on the face of it an apparent contradiction between the evidence of FF in this regard and that of JJ who I also regarded as a credible witness. I preferred however the evidence of FF on this point. JJ was perfectly clear that her role was that of foster carer. She gave no evidence that she sought a residence order. She gave clear evidence that she did not discuss adoption and that XX was not with her to be adopted. She stated she had not come into fostering with a view to adopting, just fostering. FF appeared to me to be more focused on the legal specifics of XX's case in this regard including the requirements to consider alternatives and JJ seemed to attach little significance to anything other than fostering. There may have been an apparent conflict but I preferred the evidence of FF who I regarded as more reliable in this regard particularly as JJ gave evidence that she would not wish to adopt and gave no evidence that she sought a Residence Order. The general tenor of her evidence was to the effect that she was a foster carer and sought nothing more, albeit she was an extremely devoted one.

 

7.The apparent conflict highlighted did not seem to me to be of any particular significance as I accepted FF's evidence focused as he was on the various legal tests he required to consider as specified at paragraph N of the report No. 4 of Process. I remarked briefly on the fact that "No one has sought a Residence Order nor was I given evidence that anyone wished to do so" at paragraph 68 on page 60 of my judgement albeit I did not deal with this specific apparent conflict. I therefore accept FF's evidence in this regard for the reasons given".

 

[17] It was accepted for the appellant that the sheriff had preferred the evidence of the petitioners' employee, FF, who was the child's social worker. However, the difficulty for this Court was that the sheriff heard evidence from FF that the foster carer did not want to pursue one of the alternatives to a permanence order, namely a Residence Order. The foster carer, in cross examination and in re-examination, made it clear that she did not know what a Residence Order was and that FF had never discussed this with her. The latter part of this evidence was not challenged by the counsel who appeared for the petitioners. Likewise, FF was not re-called for this to be clarified.

 

[18] The grant of a Residence Order would have secured the placement of this child with the foster carer while at the same time would have been less invasive in the life of the child rather than a permanence order.

 

[19] Notwithstanding the Sheriff's supplementary note, counsel for the appellant maintained her submission. While in the supplementary note the sheriff stated that "he preferred the evidence of the social worker, FF, to that of the foster carer JJ", it was submitted that he had to explain why he preferred the social workers evidence. It was submitted that the position of the appellant was that, when JJ gave her evidence, she did not know what a Residence Order was. It was submitted that the sheriff had a duty to consider a less invasive alternative to a permanence order, namely a residence order. It was pointed out the child had stated he wanted to stay with the foster carer. The only way to ensure that would be by a residence order. A permanence order did not guarantee continuation of an existing placement as parental rights are vested in the Local Authority who could change the arrangements. It was accepted that the child had been interviewed by the curator ad litem to ascertain, after explaining to him what a permanence order entailed, whether he consented to such an order being made in terms of section 84(1) of the 2007 Act. It was accepted by counsel for the appellant that the report of the curator ad litem of the interview with the child, when he turned 12, which was lodged in court was in the following terms;

""The reporter explained that throughout the child's life between the time of their birth until the age of sixteen decisions concerning the child's wellbeing and future are being made on a regular basis. Normally these decisions are made by the natural parents but in this case the social work department in conjunction with his foster carers want to make the decisions on his behalf and for his benefit. The Reporter explained that this decision making process would not be taken in isolation but he would be included in all future discussions. The Reporter used as an example the decisions which XX himself will have to make shortly in respect of the subjects he wished to study. The Reporter explained that such decisions would be taken based on XX's interests in the subject, his teacher's views as to whether or not he would be capable of studying such a subject and imput from the foster carers. XX understood that he would be guided in these matters before a final choice was made. The Reporter explained that a permanence order was similar and that the counsel was wanting to take away the decision making process from his natural parents and put it in the hands of the Local Authority and thereafter with the foster carers until he had reached the age of sixteen. The Reporter explained that by the time he reached sixteen he would be capable of making decisions for himself and being legally responsible for these decisions. XX understood this. He indicated he desired to live at his present address with his current foster parents and to continue to go to his local secondary school. He had no hesitation in stating that he was prepared to give his consent to such a request and duly signed the said form. Prior to signing the form the Reporter was satisfied that XX understood what the order entailed and was clear that it was his wish that such an order be made. Furthermore XX was anxious that these proceedings were brought to a conclusion in order that he could move forward with his life. XX does not want any more uncertainty in his life but wants stability and continuity."

 

[20] Notwithstanding that report counsel submitted the sheriff had not adequately considered the alternatives to a permanence order.

 

 

SUBMISSIONS FOR THE RESPONDENTS

 

[21] It was accepted that the Respondents, and in turn the Court, have a duty to consider the alternatives to a permanence order. In this case the alternatives were considered. Evidence was led anent those alternatives from the Respondent's witness FF, whom the Sheriff found to be both a credible and reliable witness. The Sheriff accepted FF's evidence that the alternatives to a Permanence Order had been considered. The appellate court should be slow to disturb the findings of the proof judge who had the benefit of seeing the witnesses and should be slow to interfere with the judge of first instances' view of the credibility and reliability of the witnesses.

 

[22] In any event, the evidence of FF and JJ, the foster carer was not irreconcilable. The Respondent's notes of the foster carer's evidence on this issue were to the effect that the foster carer did not remember FF discussing a residence order with her and not that a residence order was not discussed with her. This evidence was not mutually exclusive with that of FF. Accordingly the evidence of the foster carer and FF in respect of a residence order did not require to be reconciled by the Sheriff.

 

[23] Esto the Sheriff was required to reconcile the evidence of the foster carer and FF in respect of the residence order (which is denied) he had done so in his note. The Sheriff had now provided a reason why he preferred the evidence of FF to that of the foster carer. The foster carer was clear in her evidence that she wanted to be a foster carer. Further, the foster carer did not want to seek a residence order. The Sheriff, while not doubting the credibility and reliability of the foster carer, found that FF, as a social worker, was clearer, and as such more reliable, as to the relevant legal remedies which is why he accepted FF's evidence on the matter ahead of the foster carer's evidence. That was a decision which the sheriff was entitled to reach.

 

[24] Further, as stated by the Sheriff in his note, in this case a Permanence Order was preferable to a residence order. It was emphasised that the child required on-going social work report as he remained a "Looked after and accommodated child". A permanence order allowed such supervision to continue. A residence order would have ended social work involvement. It was pointed out there was no test, or set formula in statute that all alternatives had specifically to be excluded. It was merely accepted that in terms of human rights jurisprudence the court had a duty to consider alternatives to a permanence order. There was no set provision and no onus on the respondent in every case to be satisfied that the foster carer requires to be advised about whether they seek a residence order. It was submitted in this case there was adequate evidence before the hearing which the sheriff accepted that the alternatives to a permanence order had been considered. In particular the sheriff in his supplementary note refers to the report by the social worker, FF (number 4 of process) at page 24 paragraph 236 where he stated;

"There are no appropriate family members who could care for XX and seek a Residence Order in terms of section 11of the Children (Scotland) Act 1995. Social work have never received any contact from XX's extended maternal or paternal family requesting information. They have never expressed an interest in taking a caring role. No extended family alternative has been proposed by either parent. It would not be appropriate for the foster carers to seek a residence order. If a residence order were granted XX would no longer be a "looked after child". It is felt necessary that for there to be on-going social work imput in XX's life and also to assist the foster carers in maintaining a long term placement for him."

 

It was the foster carers and the child's wish that the present arrangement should continue. The sheriff was clearly entitled to conclude that the best arrangements having regard to the welfare of the child were a permanence order with ancillary powers which he granted.

 

DECISION ON SECOND GROUND OF APPEAL

 

[25] I accept the submissions which have been made on behalf of the respondents. There is no set formula prescribed in the act requiring a Local Authority to carry out specific tasks and enquiries. It was accepted, and in my view correctly, that the Local Authority, and in turn the court, have a duty to consider the alternatives to a permanence order having regard to the human rights legislation. In my opinion, this has been done in this case. Although the foster carer could not specifically recall it, the sheriff accepted FF's evidence that the matter had been discussed. The sheriff had before him the curator ad litem's report of his meeting with the child which I have set out in full at para 17 hereof. The child was clearly in need of social work supervision, standing the detailed background of this case. In these circumstances a residence order would not have been appropriate as there would be no social work intervention. There was a brief mention of the question of shared care. It was clear from para 61 of the sheriff's note that he concluded that there was no case for such an arrangement in light of the whole findings in fact which he had made. In particular the sheriff notes at para 61:-

"I also take the view that the suggestion of shared care is unlikely to be a success because of the demonstrable failure of the second respondent to work with the social work department as here and before stated and I am not prepared to accede to such a suggestion."

The sheriff also, significantly, states in para 7 of his supplementary report which is recorded in para 16 hereof:-

"I remarked briefly on the fact that "no one has sought a Residence Order nor was I given evidence that anyone wished to do so" at para 68 on page 20 of my judgement.

 

[26] Looking at the matter as a whole and in light of all the evidence which was before him, the sheriff was in my opinion entitled to conclude that all reasonable alternatives to a permanence order had been considered. I have no doubt that a permanence order with the ancillary provisions granted was appropriate and proportionate in all the circumstances.

 

GROUND OF APPEAL THREE - The Nature and Extent of Contact with the Child by the Appellant

SUBMISSIONS FOR THE APPELLANT

 

[26] It was originally argued that the sheriff was not empowered to extinguish parental responsibility in respect of the right of contact as the petitioners in this case were the Local Authority. However I understood it to be conceded by counsel for the appellant the sheriff had not extinguished the parental right of contact and vested it in the Local Authority. On the contrary, although very restricted, he had allowed the appellant contact.

 

[27] The sheriff was criticised for his conclusion that contact required to be supervised by the Local Authority and there was no timescale for a review. It was suggested that there had been no consideration of the negative consequences of contact being supervised. There had been contact before and difficulties had arisen between the social work department and the appellant. It was suggested that an independent person might properly supervise contact.

 

SUBMISSIONS FOR THE RESPONDENTS

 

[28] It was agreed that the parental right of contact was still vested in the appellant. It was submitted that, having regard to the welfare of the child which was the paramount consideration, contact required to be supervised, particularly in light of the sheriffs findings in fact. There was no necessity for any fixed period for a review. It was open to the appellant to seek a review at any time he thought it appropriate and in the interests of the child.

 

DECISION

 

[29] The criticisms of the sheriff's findings in respect of contact are without substance. The sheriff did not extinguish the appellant's parental responsibility in respect of his right of contact. The restriction which he imposed was, in light of all the findings in fact was fair and reasonable. Having regard to the appellant's past history with local authority staff set out in very great detail in the sheriff's findings in fact, there is in my opinion, no doubt that contact requires to be supervised at this stage. There is no cause for criticism of the sheriff's findings.

 

CONCLUSION

 

[30] In the event I take the view that the appeal fails in respect of the grounds which have been maintained on behalf of the appellant. For the reasons given I refuse the appeal and adhere to the sheriff's interlocutor of March 2013. I was not addressed on the question of expenses. A date convenient to parties will be fixed in due course.