APPLICATION FOR A PERMANENCE ORDER WITH AUTHORITY TO ADOPT IN RELATION TO THE CHILD L [2013] ScotSC 65 (22 August 2013)

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

Case Number AD2/12

JUDGMENT

Sheriff Kenneth A Ross

In the Petition of

Dumfries and Galloway Council

For a Permanence Order in terms of section 80 of the Adoption and Children (Scotland) Act 2007, (with authority to adopt in terms of section 83) in relation to the child L

Petitioner: Sharpe, Dumfries and Galloway Council Legal Department, Dumfries

Mother: Ms Hughes, Hann & Co, Annan

Father: Miss Coutts, Primrose & Gordon, Dumfries

DUMFRIES: 27 December 2012

The Sheriff, upon resuming consideration of the cause, Finds in Fact:

1. The petitioners are Dumfries and Galloway Council, Council Offices, Dumfries ("the Council"). They are a local authority. They are an Adoption Agency in terms of section 119(1) the Adoption and Children (Scotland) Act 2007 ("the 2007 Act").

2. The child L is male and is five years of age.

3. BM is the natural mother of L. BM has parental rights and responsibilities in respect of L.

4. CR is the natural father of L. He has parental rights and responsibilities in respect of L.

5. BM and CR reside together in Dumfries.

6. BM and CR also have three other children together who are the siblings of L: K, a female aged four; A, a female aged three; and R, a male aged two. Both BM and CR have parental rights and responsibilities in respect of K, A and R.

7. BM is the mother of two other children born when she was respectively 14 and 15. Both these children have been adopted with her consent. She has had indirect contact with them.

8. CR is the father of 18 other children by 9 mothers. Their dates of birth range from 1978 to 2006. S, M and H are the children of CR by a previous relationship. KR is the daughter of S. Concerns have been expressed and recorded in the social work records of East Sussex Council about the care of many of these children by CR and his partners between 1985 and 2006. Interim care orders and supervision orders have been granted in respect of some children. One child has been adopted. At times CR had residence of his sons M and H. There has been a history of inconsistent care and neglect of his children by CR and a history of a lack of commitment to many of them and to the relationships with their mothers.

9. The social work records of East Sussex Council contain several allegations that CR has sexually abused some of his children. CR denies these allegations. None of these allegations has been established. One such allegation was by CR's daughter S who had said that "daddy" was present when sexual abuse by others happened. The allegation against CR was not established. In 1998 a risk assessment of CR was undertaken which concluded that CR did not pose a risk of sexual abuse to children. In December 1998 CR was awarded a residence order in respect of M and H. On about 16 December 2009 S disclosed the same allegation of sexual abuse to Emma Visca. S has denied that CR was involved.

10. BM and CR have been in a relationship since 2006. They met in Hastings but moved to Dumfries that year and they have resided there together until the present day. Until 6 May 2011, L, K, A and R resided with them.

11. Between 2009 and May 2011, but particularly between September 2010 and May 2011, BM and CR failed to care adequately for L, K, A and R. Each child suffered serious physical and emotional neglect in respect that they were dirty and unkempt; that their clothes, and particularly their nappies, were unclean; that the house was dirty and, at times, dangerous for children; that the children lacked adequate parental interaction and stimulation; that they were variously detached and silent or aggressive and fought with each other; that BM and CR failed to provide and maintain appropriate discipline and lay down appropriate boundaries for them; that CR spent little time with them; and that there was a danger that their development had been or would be delayed.

12. Both BM and CR were offered some help and assistance by the petitioners' social work department. CR generally refused to accept advice and help and failed to cooperate and engage with the social work and health professionals. BM was more amenable to accepting advice and help but was unable consistently to apply that to the care of the children.

13. From time to time the cleanliness of the house improved but BM and CR were unable consistently to maintain such improvement.

14. CR suffers from arthritis and, as a result, requires to use a wheel chair. This condition worsened in or about September 2010. Before that he offered BM little practical help with the care of the children. Since then he has been unable to do so. He would be unable to care for the children without assistance from BM.

15. BM accepts that she was unable to offer consistent care for the children before May 2011 and neglected them. She accepts that she would not be able to offer such consistent care in the future.

16. On 6 May 2011, child protection orders were granted in respect of L, K, A and R and they were removed from the care of BM and CR. A condition was attached that BM and CR should have supervised contact with the children but that the place of safety should not be disclosed to them. When the children were removed neither BM nor CR did anything to obstruct that or make it more difficult for the children. BM, in particular, cooperated with the social work staff.

17. L and R were placed with foster carers and resided with foster carers until placed with prospective adoptive parents in mid February 2012. K and A were placed together with different foster carers and resided with foster carers until placed with prospective adoptive parents in mid February 2012.

18. Since removal from BM and CR the concerns about the care of the children by BM and CR are no longer shared by the social work and health staff. Their behaviour has improved. Concerns about their speech and language no longer exist. The children have thrived and developed well.

19. On 10^th May 2011 the children's hearing continued the child protection orders for the children and continued the condition that contact between the children and BM and CR be supervised by Social Services. The condition that the place of safety was not to be disclosed was removed.

20. On 18 May 2011 a children's hearing issued a warrant to detain the children in a place of safety with the conditions that the children exercise a minimum of one hour weekly supervised contact with BM and CR and that the children exercise a minimum of one hour weekly supervised contact with each other. Further such warrants were issued during June, July and August 2011. On 19 July a Safeguarder was appointed to the children.

21. On 7July 2011 grounds of referral were held established by the sheriff, with the consent of each of BM and CR, in terms of section 52(2(c) of the 1995 Act, that each of L, K, A and R was likely to suffer unnecessarily or be impaired seriously in their health and development, due to lack of parental care. In the statement of facts in support of these grounds, it was accepted by BM and CR that they had little insight into choosing appropriate adults to help with the care of the children, that the children did not receive adequate parental supervision or sufficient parental intervention, that the children presented as unkempt and grubby, that the physical conditions in the home could be inappropriate for children in that, for example, the home was dirty, untidy, chaotic and cluttered and that on 16 February 2011 urine/faeces stains were found on bedroom floors with fresh faeces.

22. On 22 August 2011, the Authority Reporter's Office received the Report of the safeguarder, June Holland. Inter alia her Report concluded that "whether the children should return to their home environment given the level of concerns and the established grounds of referral.... to be a very complex issue." Reservations were expressed about the management of the case by the Social Work department such as closing the case "when other agencies still felt that there were concerns, and also that the in-depth historical enquiry only took place a year after the case was closed, and no consideration given to at least seriously looking at rehabilitation." It was also noted to be of concern that "the children were removed into care with a strong recommendation for permanence at the point of POSW with no consideration given to at least seriously looking at rehabilitation." The safeguarder noted that, even in recent history, "there are patterns of significant neglect." She recommended, "that the children should all remain in care and that plans for permanency are pursued."

23. On 29 August 2011 the Children's Hearing made each child subject to a Supervision Requirement to reside with the foster carer. Conditions were attached that the children should have one hour of supervised contact each week with BM, one hour of supervised contact each fortnight with CR, half an hour of supervised contact each fortnight with BM's father PM and one hour of supervised contact each week with each other. Supervised contact between the children and M was not to take place until a Comprehensive Risk Assessment has been carried out by Social Work.

24. Between May 2011 and February 2012 BM and CR had supervised contact with L, K, A and R. BM attended on each occasion. CR attended on every occasion save two. CR did not interact very much with the children. BM attempted to do so and did so on occasions. She found it difficult to set boundaries for the children when dealing with all four at once. During earlier contact sessions she tended to concentrate on R but in later sessions was able to interact more with all the children. On occasions the children played with each other or on their own or with some of the other adults present. The quality of contact with BM was variable but was not distressing or upsetting for the children. It enabled them to retain a recollection of who she was and, in the case of L and K, to retain some attachment with her.

25. On 7 November 2011 a Form E was completed in respect of each child. The recommendation made in terms of permanency planning was for adoption with indirect letterbox contact with their parents and direct inter sibling-contact.

26. On 20 November 2011 the Dumfries and Galloway Adoption Panel recommended permanence by way of adoption for each child with the legal route being an application for a permanence order with authority to adopt.

27. On 30 November 2011 the Agency Decision Maker endorsed the recommendation of the Adoption Panel.

28. On 20 January 2012 the Children's Hearing gave advice to the sheriff in terms of section 70(13) of the Children (Scotland) Act 1995. The Panel advised a Permanency Order with Authority to Adopt.

29. On 24 January 2012, Dumfries and Galloway Adoption Panel, in its capacity as a Matching Panel, approved and recommended the matching of the children K and A to their current prospective adoptive parents. They were placed for adoption with them and have resided with them since mid February 2012. Each has settled into that placement. They are happy and content in their care. The prospective adoptive parents have accommodation suitable for the needs of K and A and the financial means to provide appropriately for them. It is likely that K and A will be adopted.

30. On 14 February 2012, Dumfries and Galloway Adoption Panel, in its capacity as a Matching Panel, approved and recommended the matching of the children L and R to their current prospective adoptive parents. They were placed for adoption with them and have resided with them since mid February 2012. Each has settled into that placement. They are happy and content in their care. The prospective adoptive parents have accommodation suitable for the needs of L and R and the financial means to provide appropriately for them. It is likely that L and R will be adopted.

31. The prospective adoptive parents of K and A and L and R are known to each other. All the children see each other from time to time and are likely to continue to do so.

32. On 17 February 2012 the Children's Hearing continued and varied the Supervision Requirement for each of the children to reside with their prospective adoptive parents and removed the condition which permitted contact with the children by BM and CR.

33. Contact ordered by the court between BM and CR and L, K and R was observed by Dr Woolfson on 27 July 2012. A refused to go. Contact was with each child separately and lasted approximately forty five minutes. BM actively engaged with the children, set limits for them and was able to adapt her responses according to their age, stage and personality. CR was passive and rarely interacted with the children unless specifically encouraged by BM. Both L and R responded well during contact. L greeted BM with enthusiasm. K was more reticent but greeted BM with a hug on arrival. All separated well from BM and CR at the conclusion of contact. During contact BM did not attempt to disrupt or destabilise the placements of the children with their foster carers. It is unlikely that she would do so in any future contact.

34. There is a positive attachment between L and BM and, to a lesser extent, between K and BM. R has no attachment to BM which derives from his time with her before May 2011. None of the children has any significant attachment to CR. There is no evidence that A has any attachment to either BM or CR.

35. None of the children is of sufficient age or maturity to express any view.

36. BM consents to the making of a permanence order in respect of each of L, K, A and R. She does not consent to the grant of authority to adopt.

37. CR opposes the making of a permanence order in respect of each of L, K, A and R and the grant of authority to adopt.

38. No steps have been taken by the petitioners to prepare the prospective adopters of L, K, A and R for the possibility of direct contact between L, K, A and R and BM or CR.

39. The prospective adopters of L, K, A and R are opposed to any direct contact between any of the children and BM and CR. It is unlikely that this view will change. It cannot be said that they would willingly cooperate with any arrangements for direct contact.

Finds in Fact and in Law:

The residence of each of L, K, A and R with BM is, and is likely to be, seriously detrimental to each child.
The residence of each of L, K, A and R with CR is, and is likely to be, seriously detrimental to each child.
Having regard to the need to safeguard and promote the welfare of each of L, K, A and R throughout childhood

(i) A permanence order in respect of each of L, K, A and R should be made in terms of section 80 of the 2007 Act;

(ii) The parental rights and responsibilities of BM and CR in respect of each of L, K, A and R (save those specified in sections 1(1)(c) and 2(1)(c) of the 1995 Act) should be vested in the petitioners in terms of sections 81(1) and 82(1)(a) and (b) of the 2007 Act;

(iii) The parental rights and responsibilities of BM and CR in respect of each of L, K, A and R (save those specified in sections 1(1)(c) and 2(1)(c) of the 1995 Act) should be extinguished in terms of section 82(1)(c) and (d) of the 2007 Act;

(iv) In terms of section 82(1)(e) of the 2007 Act, contact between each of L, K, A and R and BM and CR should be restricted to indirect contact by correspondence.

It is better for each of L, K, A and R that a permanence order containing such provisions should be made than not.
BM is unable, in respect of each of L, K, A and R, satisfactorily to discharge or exercise the parental responsibilities mentioned in sections 1 and 2 of the 1995 Act (save those mentioned in sections1(1)(c) and 2(1)(c)) and is likely to continue to be unable to do so.
CR is unable, in respect of each of L, K, A and R, satisfactorily to discharge or exercise the parental responsibilities mentioned in sections 1 and 2 of the 1995 Act (save those mentioned in sections1(1)(c) and 2(1)(c)) and is likely to continue to be unable to do so.
Having regard to the need to safeguard and promote the welfare of each of L, K, A and R throughout life, the consent of BM and CR to the adoption of L, K, A and R should be dispensed with in terms of section 83(1)(c)(ii) of the 2007 Act.
Having regard to the need to safeguard and promote the welfare of each of L, K, A and R throughout life, authority to adopt each of L, K, A and R should be granted in terms of section 80(2)(c) of the 2007 Act.
It is better for each of L, K, A and R that such authority should be granted than not.
Compulsory measures of care for each of L, K, A and R are no longer necessary.

THEREFORE

Refuses as unnecessary the petitioners' Crave 6; Grants the petitioners' remaining Craves; Makes a permanence order in respect of L in terms of section 80(1) of the 1995 Act and:

Vests in the petitioners the parental responsibilities and rights in respect of the said L mentioned in sections 1(1)(a)(b) and (d) and 2(1)(a)(b) and (d) of the 1995 Act;
Extinguishes the parental responsibilities and rights of BM and CR in respect of the said L mentioned in sections 1(1)(a)(b) and (d) and 2(1)(a)(b) and (d) of the 1995 Act;
Specifies that contact between the said L and BM and CR shall be restricted to indirect contact and:

(a) Allows each of BM and CR to write, care of the petitioners, to the said L twice each year in March and September;

(b) Orders the petitioners to forward such written communications to the prospective adoptive parents of the said L and;

(c) Orders the petitioners to provide each of BM and CR with written information about the welfare and development of the said L on at least two occasions each year including in March and September and, additionally, within seven days of the making of any application for the adoption of the said L;

Dispenses with the consent of BM and CR to the making of an adoption order in respect of the said L and;
Grants authority for the said L to be adopted;

Orders that the supervision requirement imposed in respect of the said L in terms of section 70 of the 1995 Act shall cease to have effect.

Note:

Introduction

[1] This is one of four applications by the petitioners in which they seek permanence orders for four sibling children in terms of section 80 of the 2007 Act. In terms of sections 81 and 82 they seek the vesting of all the parental rights and responsibilities specified in sections 1(1) and 2(1) of the Children (Scotland) Act 1995 ("the 1995 Act") in them as the local authority save that in relation to contact in terms of sections 1(1)(c) and 2(1)(c). They also seek to extinguish the parental responsibilities and rights of the parents of the children specified in these sections save for that of contact with the children. However, they seek to add to the permanence order a provision in terms of section 82(1)(e) that any contact by the parents with the children shall not be direct. In the course of the proof it was conceded by the petitioners that such indirect contact should take place twice a year by the provision of written information about the children and their progress but without photographs of them. In addition, the petitioners seek, in terms of section 80(2)(c), a provision in the permanence order granting authority for the children to be adopted and, to that end, that the consents of BM and CR to any such adoption should be dispensed with.

[2] After the applications had been intimated to the parents, each parent responded indicating that they were opposed to the applications. After various preliminary and pre-proof hearings a diet of proof was fixed. In the course of these BM and CR lodged a motion seeking contact with the children for the limited purpose of allowing Dr Woolfson to observe that contact. I granted that motion and the reasons for that decision are contained in the interlocutor of 17 July 2012 (reported 2012 SLT (Sh Ct) 173) Before the proof commenced, counsel for BM indicated that she no longer opposed the grant of the permanence orders but maintained her opposition to the granting of authority for the children to be adopted. She indicated that BM also sought, in any permanence order, provision for direct contact with the children in terms of section 82(1)(e) of the 2007 Act. CR maintained his opposition to the grant of the permanence order and the grant of authority to adopt but also sought provision for contact if any permanence order were granted. The petitioners were opposed to any contact save the sending of letters, cards and photographs by BM and CR to their Social Work Department to be held for each of the children until they attained their sixteenth birthdays.

[3] I heard evidence over several weeks between September and November 2012. All parties were represented by counsel; the petitioners by Mr. Sharpe, BM by Ms Hughes and CR by Miss Coutts. The witnesses who gave evidence for the petitioners were as follows:

1. Emma Elizabeth Visca is a Public Health Nurse employed by National Health Service (NHS) Dumfries and Galloway and, in 2009-2011 was working as a Health Visitor.

2. Anne Marie Connor is a Child Protection Adviser employed by National Health Service (HNS) Dumfries and Galloway. In 2010-2011 she was working as a Health Visitor.

3. Dr. Andrew David Mitra is a Consultant Paediatrician at Dumfries and Galloway Royal Infirmary and was working as such in 2011.

4. Amanda Stevenson is a Senior Social Worker employed by Dumfries and Galloway Council and was working in that role in 2010.

5. Henry Race is a Social Worker employed by Dumfries and Galloway Council and was working in that role in 2011.

6. Jill Cummings is an Educational Visitor. She has held that post for 21 years and was working as such in 2010-2011. Before she became an Educational Visitor she taught in both primary and secondary schools for 21 years.

7. Christine Ann Weir is the manager of a Pre-school Nursery attended by L. The Nursery runs in partnership with Dumfries and Galloway Council to provide pre-school education for children aged three to five.

8. Aileen Donnan is a Social Worker employed by Dumfries and Galloway Council and was working in that role in 2010-2011.

9. Peter Monteith Shankland is a Social Worker employed by Dumfries and Galloway Council and has worked in that role in for twelve years.

10. Yvonne Douglas is a Family Support Worker employed by Dumfries and Galloway Council and has worked in that role since 2000.

11. Stephanie Cassidy is a Social Work Assistant employed by Dumfries and Galloway Council and has worked in that role since April 2011.

12. Dr Brenda Robson is a Chartered Psychologist.

CR gave evidence as did his daughter S. BM also gave evidence as did her father, PM. And there was evidence on behalf of both by Dr Richard Woolfson, a Chartered Psychologist.

[4] For each of the petitioner's witnesses except Dr Robson, affidavits had been lodged. Dr Robson had provided a written Report (Production No. 5/23). The affidavits were not docquetted in the manner allowed in rule 29.3 of the Ordinary Cause Rules 1993 but each witness was asked to confirm that the contents of the affidavits were true and accurate and that they adopted them as their evidence. Notwithstanding that, several of the witnesses were examined in chief, some at considerable length. The affidavits referred to various of the voluminous productions in the case, some of which had been written or produced by the witness concerned and some by others. There were affidavits from four witnesses who were not called to give evidence for the petitioners (Daniel McKeever and Elizabeth Dickie who are two senior Social Workers or Managers and also MM and LB, two foster carers who had looked after L and R after their removal into care following the grant of the child protection order in May 2011). Parties were agreed that I could have regard to this evidence bearing in mind any difficulty in assessing these witnesses whom I have not had the opportunity of seeing or hearing. All this, I have no doubt, was intended to restrict the length of the proof. Two Joint Minutes of Admissions had been prepared which agreed some of the procedures and steps taken in respect of the children before, during and after they were received into care. Parties prepared draft written submissions which were exchanged and adjusted. These are with the process. A short oral hearing was held on 30 November 2012. It was not suggested by any of the parties that any distinction fell to be drawn between the four children in respect of the disposal of the applications which related to any of them. So, although I make separate orders in each application, I have treated the evidence as applying to all and discussed together that evidence, the submissions and my reasons for the decisions which I have made

Parties' Submissions

[5] Mr Sharpe submitted that the evidence of the health visitors and social work staff, together with the extensive documentary productions, established clearly that the children had been physically and emotionally neglected while in the care of BM and CR. He expanded that by reference to the detailed evidence given by the health visitors and social work staff and their contact with the family between 2009 and 2011 in relation to the cleanliness of the home, the cleanliness of the children, injuries to the children, failure to set boundaries and discipline the children, lack of engagement with the children and failure to take steps to ensure their development. There was little attachment between the children and BM and CR. There were allegations that CR had previously sexually abused some of his children. Their removal into care had been justified and necessary. Each of the children had settled well in care and was now thriving. Removal would be disruptive and potentially disastrous. BM and CR had not shown that they had changed and would be able to provide the children with consistent care. They did not accept, fully in the case of BM or at all in the case of CR, that their treatment of the children had had an adverse effect on them. That past behaviour and the present lack of awareness and lack of change pointed clearly to the need to make the permanence order. It was established that the children's residence with either BM or CR would be likely to be seriously detrimental to the welfare of the children. The same evidence pointed clearly to the need to grant authority for the children to be adopted. They were in settled adoptive placements. They were likely to be adopted. BM and CR had failed satisfactorily to discharge their parental responsibilities. They were unable to do so and were likely to continue to be unable to do so.

[6] All parental rights and responsibilities should be vested in the petitioners save that of contact in terms of sections 1(c) and 2(c) of the 1995 Act. The right of contact should be regulated so that there was no direct contact but that there should be indirect contact twice a year by the adoptive parents informing BM and CR of the children's development but without the inclusion of photographs of the children. The conditions which might have allowed direct face to face contact did not exist. There was little or no attachment between the children and BM and none with CR. CR did not accept any neglect of the children; nor did he accept that the permanence order or adoption would be in the best interests of the children. There was a danger that any contact would cause confusion to the children and jeopardise the stability of their placement. Although BM claimed that she would not disrupt the adoptive relationship, she had not consented to the authority to adopt and so could not be said to be fully accepting of it. The danger remained that, even in the circumstances of supervised contact, things could be said or done which would adversely affect the stability of the placement. The prospective adoptive parents were opposed to face to face contact. In these circumstances, the evidence of Dr Robson, and even Dr Woolfson, and the extensive literature reviewed during the evidence, pointed clearly away from direct contact and showed that the safeguarding and promotion of the welfare of the children was best achieved by letter box contact.

[7] Ms Hughes, on behalf of BM, accepted that, on the basis of the evidence of the care of the children while with BM and CR, the children's residence with BM would be seriously detrimental to their welfare. While not able, on behalf of BM, to indicate consent to the crave for authority to adopt, Ms Hughes accepted that there was evidence on the basis of which I could be satisfied that the tests found in either sections 83(2)(c) and (3) or section 83(2)(d) were met. That was not an outcome which BM wanted but she recognised, despite her responsible behaviour on the evening in May when the children were removed that she could not discharge the relevant rights and responsibilities even with support from the petitioners. Taking into account particularly section 14 and the need to have regard to the need to safeguard and promote the welfare of the children throughout their lives as the paramount consideration, and in light of the evidence of both Dr Robson and Dr Woolfson, Ms Hughes submitted that I might feel constrained to conclude that the removal of the children from their present placements was not within the band of reasonable decisions open to me.

[8] Ms Hughes identified the real issue in the case as that of direct contact. She pointed to the evidence of Dr Woolfson, but also concessions made by Dr Robson, that some attachment existed between BM and the children. That was supported by the evidence of BM and also in some of the evidence of the social work staff about contact after removal. It was also to be found, for example in the evidence of Dr Mitra. She differed from Mr Sharpe in her interpretation of the evidence of the literature examined by Dr Robson and Dr Woolfson. She asked me to accept the view of Dr Woolfson that direct contact could generally be said to bring benefit to children although she accepted that each case required to be examined on its own facts. She was at one with Mr Sharpe that, for direct contact to promote and safeguard the children's welfare there required to be acceptance by the birth parents of the adoption, that the children's family was the adoptive family and a willingness to act so that the new family relationship succeeded. The consent of the adoptive parents was also required. She submitted that I should accept the evidence of BM that she would not disrupt or undermine the new adoptive family relationship. That evidence found support in BM's behaviour since the children had been taken into care, particularly at contact visits. She asked me to make an order providing for direct face to face contact in line with Dr Woolfson's recommendation - supervised contact with the four children every three months but subject to close monitoring and continuing consideration of their psychological welfare at all times. That submission was qualified by the need for further exploration of the attitude of the adoptive parents which I discuss below.

[9] Ms Coutts, on behalf of CM and, I understand on his specific instructions, submitted that no orders should be made and the petition should be dismissed. She submitted that it was open to question whether proper procedures had been followed in relation to the removal of the children and whether grounds existed for that to have happened; whether rehabilitation had been or should have been considered and appropriate steps taken; whether the early decision to restrict contact had been justified in circumstances where the limited contact allowed was likely to result in attachment between the children and their parents being maintained; whether the management of contact with K and A, which had ceased because they said they did not want to go, had been appropriate; whether the decision to stop contact in February 2011 was justified; and whether the information provided to the prospective adoptive parents by social workers was either accurate or in the best interests of the children. She accepted, however, that whatever deficiencies could be identified in the manner in which the petitioners had handled the children's cases that in itself was not a reason to refuse to grant the permanence order. The court still required to act in the best interests of the children.

[10] The permanence order should be refused because there were insufficient factual grounds to establish that the order should be made. Living with CR and BM had not been seriously detrimental to the children's welfare. It is not likely to be now. The parents were and are capable of discharging parental responsibilities and, with assistance, can in the future. Rehabilitation is possible if the assumption that the petitioners' concerns about the welfare of the children while in the care of BM and CR were valid were taken out of the equation. The children should return home. The benefits of being home will outweigh the disruption of another move. It is not another move to unfamiliar people. In support of this submission she pointed primarily to the evidence of CR which she asked me to accept in preference to that of the witnesses for the petitioners. She also pointed to discrepancies, inconsistencies and exaggerations in the evidence led by the petitioners. Peter Shankland, in particular, she described as "particularly unimpressive".

[11] Even if the permanence order were to be granted on the "welfare grounds" that the children should not have to face major disruption at this point in their lives CR was opposed to authority to adopt. He wished to be involved in his children's lives. This had worked well with S who had been in long term foster care throughout her childhood rather than adopted. She pointed to the evidence of S that she has a great relationship with her dad. That was better for the children that adoption.

[12] If authority to adopt were granted, on either of the grounds in sections 83(2)(c) or (d) Ms Coutts adopted the submissions of Ms Hughes in relation to the frequency and extent of contact recommended by Dr Woolfson. She also adopted Ms Hughes' submission about how that might be achieved. Work should be started immediately with the potential adopters to change their mind set in the best interests of the children. They should be made aware of Dr Woolfson's position and of this court's findings in fact so that there is honesty and openness about the children's past. Maybe they should see the photographs and videos taken by PM and lodged as productions. If CR were not allowed contact he would not want that to stand in the way of BM having contact. If indirect contact were ordered, CR would like photographs of the children. There was no need to protect the children's identities.

[13] In the course of their submissions parties referred me to the following statutory provisions and authorities:

Statutes

Adoption and Children (Scotland) Act 2007

Considerations applying to the exercise of powers

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

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

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

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

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

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

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

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

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

(7) If an adoption agency concludes that there is an alternative such as is mentioned in subsection (6), it must not make arrangements for the adoption of the child.

(8) Without prejudice to the generality of subsection (4)(b), a child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of that subsection.

Permanence orders

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

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

(a) the mandatory provision,

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

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

Permanence orders: mandatory provision

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

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

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

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

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

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

Permanence orders: ancillary provisions

82 (1) The ancillary provisions are provisions-

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

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

(ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act,

in relation to the child as the court considers appropriate,

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

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

(ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act,

in relation to the child as the court considers appropriate,

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

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

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

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

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

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

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

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

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

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

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

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

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

Order granting authority for adoption: conditions

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

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

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

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

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

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

(2) Those grounds are-

(a) that the parent or guardian is dead,

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

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

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

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

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

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(4) This subsection applies if-

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

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

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

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

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

Conditions and considerations applicable to making of order

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

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

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

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

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

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

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

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

(b) have regard to-

(i) any such views the child may express,

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

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

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

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

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

Children (Scotland) Act 1995

Parental responsibilities

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

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

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

(i) direction;

(ii) guidance,

to the child;

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

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

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

Parental rights.

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

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

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

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

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

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

Restriction on making of orders under section 11

11A (1) Subsection (2) applies where a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4)) is in force in respect of a child.

(2) The court may not, under subsection (1) of section 11 of this Act, make an order such as is mentioned in any of paragraphs (a) to (e) of subsection (2) of that section.

Cases

B v C 1996 SLT 1370

B v G 2012 SLT 840

City of Edinburgh Council in respect of the child CM, Sheriff K E C Mackie, unreported, Edinburgh Sheriff Court, 1 July 2010

City of Edinburgh Council in respect of the child L, Sheriff Pyle, unreported, Dundee Sheriff Court, 25 July 2011

Dundee City Council v GK 2006 SC 326

East Lothian Council v LSK Sheriff Principal Bowen, unreported, Edinburgh Sheriff Court, 1 July 2010

East Lothian Council v LSK 2012 Fam LR 7

FB and AB Petitioners 1999 Fam LR 2

H v Petrie 2000 SLT (Sh. Ct.) 145

Inverclyde Council v MT and MS, [2011] CSOH 27

S v L 2102 SLT 961

W v Aberdeenshire Council [2012] CSIH 37

West Lothian Council v McG 2002 SC411

Textbook

McNeill and Jack: Adoption in Scotland (4^th Edition)

[14] There was little difference in parties' approach to the law in relation to the grant or otherwise of the permanence order, any ancillary provisions which might be attached to it and the provision sought by the petitioner for authority to adopt the children. I summarise that approach below when discussing the applicable law. There were, however, some differences.

[15] Firstly, Mr Sharpe submitted that, as a proposition of law, a provision for face to face contact with a parent, after the grant of a permanence order or adoption order, should only be made in exceptional circumstances (B v C at page 1377 and FB and AB Petrs at paragraph 2-21). He also referred to remarks of Sheriff Pyle in City of Edinburgh Council in respect of the child L. Ms Coutts, on the other hand, submitted that approach was wrong and that the only test which should be applied was the welfare test found at section 84(4) of the 2007 Act. Both the cases referred to were of some age, were applying the previous provisions of the 1976 Act (section 18 relating to applications for freeing for adoption) and failed to take into account the opportunities for contact after adoption introduced by the 2007 Act.

[16] I prefer the submission by Ms Coutts. The test which the court requires to apply is whether, in making any order, it will safeguard and promote the welfare of the child. While in B v C Lord Hope described that case as "exceptional", what he said about the principle (page 1377) was:

"The guiding principle is that adoption provides complete security to the child by making the child part of the adopting parents' family. Conditions expressed in favour of third parties, which might make it necessary for the court to become involved in the making of further orders with a view to the child's welfare, will not be appropriate except in the very rare cases where the child's welfare might be prejudiced if a condition to that effect were not to be made. As Lord Ackner observed in Re C, in normal circumstances it is desirable that there should be a complete break from the child's natural family. But each case must be considered on its own facts, and we are in no doubt that the highly unusual background to this case makes such a condition desirable in order to provide support and guidance to all those involved, and above all to the petitioners, in the very difficult decisions which now lie ahead if the child's welfare is to be safeguarded throughout her childhood."

[17] Similarly, in FB and AB Petrs the discussion (paragraph 2-21) relates to "the purpose of trying to provide for continuing contact in an adoption order". There is no reference to the test being whether the circumstances are "exceptional". And again, in City of Edinburgh Council in respect of the child L, the reference to "exceptional" is, in fact, to the use of the word by Professor Triseliotis in his evidence. Nor, in East Lothian Council v LSK 2012 Fam LR 7, does Lady Smith suggest that the test is one of exceptional circumstances. At paragraph [49] she rejected the submission that evidence of no harm from on-going contact would justify it continuing. But she also identified the issue as whether or not on-going contact would safeguard and promote LSK's welfare. It seems to me that there is no basis in these authorities for re-wording or placing a gloss on the plain words of the applicable sections - whether section 84(4) in the context of contact after the grant of a permanence order or section 14(3) in the context of adoption. The use of the word "exceptional" is, in the same way as Lord Reed explains in paragraph [44] in S v L, an observation about the rarity of the circumstances in which a contact order is likely to be granted. And, given the additional opportunities for making contact orders introduced by the 2007 Act - in the context of a freeing order (sections 82(1)(e) and 92) or after adoption (the insertion of section 11A into the 1995 Act by section 109) it might be unwise to seek to define or classify circumstances as "exceptional" on the basis of cases decided some time ago, before these legislative changes and before much of the research and academic discussion about the value of post adoption contact which I deal with below.

[18] Secondly, Ms Hughes submitted that, although the Petitioners did not seek to extinguish the parent's right (in terms of section 2(1)(c) of the 1995 Act) to maintain personal relations and direct contact with the children, the practical effect of their craves 3(n) - to include a provision in the Permanence Order that "there be no direct contact" - was precisely that. To justify an order which would have the pragmatic effect of extinguishing that right, the Petitioners required to demonstrate that such an order was necessary to secure the best interests of the child (S v L 2012 SLT 961, particularly Lord Reed at paragraph [46]). She submitted that Lord Reed's remarks applied equally to the welfare test as expressed in section 84(4) in relation to provisions in a permanence order as they did to the expression of the test in section 31(3)(d) in relation to the grant of an adoption order which was the issue in S v L). That high standard had not been reached in the present cases. Mr Sharpe disputed that there was such a "necessity" test. Lord Reed's discussion had been in the context of Article 8(2) and the reference there to any interference with the Article 8(1) rights being "necessary in a democratic society". S v L was simply another example (cf. Dundee City Council v GK, and West Lothian Council v McG) where the Scottish provisions on adoption or contact following adoption had been found to be compliant with the provisions of the Convention. The test for the court remained the welfare test found, in relation to the provision sought in Crave 3(n), in section 84(4).

[19] It is difficult to disagree with Ms Hughes's submission that the test set out in section 31(3)(d), and repeated in identical terms in section 83(2)(d) in relation to provisions in permanence orders granting authority for adoption, is a test of necessity. That is precisely how Lord Reed described it at paragraph [46]:

"..........the word "requires" in section 31(3)(d) is to be understood as meaning that there must be an overriding requirement, for the sake of the child's welfare over his or her lifetime, that the consent of the parent be dispensed with, and that the child's welfare requires nothing less than the making of an adoption order: a test, in other words, of necessity."

[20] The real issue may be whether that clear categorisation of the character of the section 31(3)(d) test applies equally to the welfare test as expressed in section 84(4). Of course, there are differences between the two tests. That in section 31(3)(d), by reference to section 14(3) requires the court to have regard to the need to safeguard and promote the welfare of the child throughout life as the paramount consideration. That in section 84(4) requires the court to have regard to the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. The word "requires", which was the focus of discussion in S v L, does not appear in section 84(4). But if the order sought would best promote and safeguard the child's welfare it is difficult to see how it would not be necessary to make the order unless, of course, what the order sought to achieve would happen without it. Not to do so would be to disregard the paramouncy of the child's welfare. So, in that sense, the section 84(4) welfare test is one of necessity.

[21] That there is no essential difference in the two tests may also be deduced from the passage in Re P (Children)(Placement Orders: Parental Consent [2008] ECWA Civ 535 which follow those quoted with approval by Lord Reed. What Thorpe LJ said is as follows:

"126 What is also important to appreciate is the statutory context in which the word "requires" is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption-the making of either a placement order or an adoption order-and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption. A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily "require" that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is "required" is adoption.

127 In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what Mr Geekie called a simple welfare test. The difference, and it is an important, indeed vital, difference, is simply that between section 1 of the 1989 Act and section 1 of the 2002 Act.

128 In the first place, section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, requires a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child's welfare "throughout his life". This emphasises that adoption, unlike other forms of order made under the 1989 Act, is something with lifelong implications. In other words, a judge exercising his powers under section 52(1)(b) has to be satisfied that the child's welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, requires that he or she be adopted. Secondly, and reinforcing this point, it is important to bear in mind the more extensive "welfare checklist" to be found in section 1(4) of the 2002 Act as compared with the "welfare checklist" in section 1(3) of the 1989 Act; in particular, the provisions of section 1(4)(c) -which specifically directs attention to the consequences for the child "throughout his life"-and section 1(4)(f) . This all feeds into the ultimate question under section 52(1)(b) : does the child's welfare throughout his life require adoption as opposed to something short of adoption?"

[22] In any event, I do not accept that the effect of granting crave 3(n) would extinguish, either legally or practically, the contact responsibility and right provided for in sections 1(1)(c) and 2(1)(c) of the 1995 Act. The crave does not seek to deprive the parents of the responsibility and right. That cannot happen unless the responsibility and right is transferred to another person. It is not sought in the application. The crave simply seeks, in terms of section 82(1)(e), to specify arrangements for contact. The right to contact remains even if it is not to be exercised in a direct way or at all. The specified arrangements, or lack of them, can be varied while the permanence order remains in force in terms of section 92. The situation is really analogous to that of a supervision requirement (as explained by Lady Smith in East Lothian Council v LSK 2012 Fam LR 7 at paragraph [9]). The right of contact remains but may be suspended because of the arrangements specified in the ancillary provision made in terms of section 82(1)(e).

[23] Thirdly, Ms Hughes submitted that, if I were minded to refuse the Petitioners' Crave 3(n) with a view to making some provision for contact between BM and the children, it would not be appropriate to make such an order now. That would reflect the evidence of both Dr Robson and Dr Woolfson about the importance, in any contact arrangement likely to reflect the best interests and welfare of the children, of the consent and cooperation of the prospective adoptive parents and the clear evidence that such consent and cooperation was presently absent. Her suggestion was that the adoptive parents should have an opportunity of considering BM's altered position regarding the grant of the permanence order and the authority to adopt, and the evidence which had emerged about the attachment between the children and BM. I could instruct, perhaps, an Educational Psychologist to meet with them and report back to me on whether this wider information, and the opportunity to reflect on the possible benefit to the children's welfare which direct contact might bring, had caused them to alter their view. She suggested that such a course might be difficult to reconcile with the timescale for the pronouncement of my decision found in Rule 38 and that, in these circumstances, I might consider seeking an extension of that time from the Sheriff Principal. Ms Coutts associated herself with this submission. Mr Sharpe did not question the competence of such a course but submitted that it would not be in the best interests of the children.

[24] Fourthly, Ms Hughes submitted that if I were minded to make a Permanence Order but not minded to make provision for contact then I should refuse to discharge the supervision requirement as sought by the Petitioners in their Craves 7. That would allow an opportunity for reconsideration of the question of contact before the Children's Hearing if the view of the prospective adoptive parents were to change in the context discussed in the previous paragraph. Initially, Mr Sharpe's position was that, in terms of section 89(2), I "must" order that the requirement ceased to have effect. But, in the context of a discussion of the terms of section 89, and also section 90, he accepted that it would be competent, while granting the permanence order, to refuse to discharge the supervision requirement. He submitted, however, that such a course would not be in the best interests of the children, would have an adverse effect on their present placements and would serve no purpose because it was difficult to see what compulsory measures of care would remain necessary.

[25] Finally, Ms Hughes submitted that, if I were minded to make provision for direct contact with BM, I should order that, in any subsequent adoption petitions, intimation of such a petition should be ordered on BM in terms of Rule 14(1)(f) or Rule 15 of the 2009 Rules. That would ensure that BM knew about, and could make representations in any adoption process. Again, Ms Coutts associated herself with this submission. Mr Sharpe submitted that such an order would be incompetent. The adoption process was a separate process. Orders for intimation in terms of these Rules were entirely at the discretion of the sheriff before whom such a process called.

[26] In my opinion, it would not be competent for me to make the order for intimation suggested. The adoption process will be a separate process. The orders which can be made in that process are at the discretion of the sheriff before whom it calls. Circumstances may be entirely different when that happens. I can see that the provisions of the 2007 Act and the 2009 Rules may mean that a parent whose consent to adoption has been dispensed with may only receive intimation of any adoption petition at the discretion of the court but, as Lady Smith explains in East Lothian Council v LSK 2012 Fam LR 7 (paragraphs [28] and [49]), that discretion has to be exercised with the parents' Convention rights in mind. Where, as here, any permanence order will, in light of the petitioner's concession about indirect contact, contain a provision for contact that should be sufficient protection for BM and CR. It is difficult to foresee circumstances in which intimation of the adoption proceedings to them would not be ordered. But the orders which I intend to make will ensure that BM and CR know when any adoption application is made.

[27] One last matter arose in the course of the submissions which I should mention. Mr Sharpe advised me that it had been argued in a recent appeal before the Inner House that the same facts could not be taken into account to satisfy the requirements of both sections 84(5)(c)(ii) and 83(3)(b) and (c). Unsurprisingly, he was unable to explain what the basis of such a submission might have been. Neither Ms Hughes nor Miss Coutts sought to rely on any such argument.

The Applicable Law

[28] Permanence orders were introduced by the 2007 Act. The purpose of a permanence order is to substitute the petitioners, as the local authority, for the parents of the child in respect of the responsibilities and rights imposed by and granted to a parent in terms of sections 1 and 2 of the 1995 Act. That substitution can be complete, but the right and responsibility to enjoy personal relations or direct contact with the child cannot be vested in a body such as the petitioners. So what is sought by the petitioners is a vesting of all the rights and responsibilities save those relating to personal relations or direct contact. They also seek to restrict the exercise of those residual rights and responsibilities by providing (crave 7(n)) that there be no direct contact between the children and BM and CR but have conceded that indirect contact on a limited basis should continue. Every permanence order must contain the mandatory provisions set out in section 81(1); the responsibility to provide guidance to the child and the right to regulate the child's residence. That such residence will be other than with the parents is clear from section 84(1)(5)(c)(ii) where the grant of the order is predicated on the court being satisfied that residence with the parent (the person presently with the right to regulate the child's residence) is, or is likely to be, seriously detrimental to the welfare of the child. Although the effect of the mandatory provisions is to give to the local authority the right to regulate where the child resides it is difficult to see circumstances in which such residence would ever be with the parents. So the practical effect of the order will be that, even if the child sees or has contact with the parents, he or she will not reside with them.

[29] A permanence order may contain ancillary provisions. These are specified in section 82 (for example, the vesting in the local authority of the responsibility and right to act as the child's representative or, of significance in the present case, the specification of arrangements for contact between the child and any other person). But such ancillary provisions cannot competently come into being unless a permanence order is made. So it is to the conditions and considerations applicable to the making of such an order, set out in section 84, that attention must first of all be directed. Section 84 sets out a variety of such conditions and considerations. Some are matters to which the court must have regard. Others are matters about which the court must be satisfied before the order may be made. The relationship between these conditions and considerations, and the appropriate way to approach them, has conveniently been set out in the Opinion of the Court delivered by Lord Bonomy in the recent case of TW and JW v Aberdeenshire Council [2012] CSIH 37. At paragraph [13] he says this:

"We do not accept the notion .................. that among the subsections of section 84 there is a hierarchy and that subsections (3) and (4) have a particular core status. Subsections (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be made. However, subsection (3), prohibiting the court from making a permanence order unless it considers that it would be better for the child that the order be made than that it should not be made, relates to a determination that generally depends upon a review of the whole circumstances to which the court is obliged to have regard. One would generally expect the issue focused by subsection (5)(c)(ii) to have been addressed by the time subsection (3) comes to be considered. Indeed if the court is not satisfied that the requirement of (5)(c)(ii) is met, it is difficult to envisage circumstances in which the need to apply subsection (3) would arise. It is, therefore, difficult to envisage circumstances in which a court, faced with an application for a permanence order, would not first of all address the factors that arise under subsection (5)(c), in this case (5)(c)(ii), and any other matters arising under subsection (5), always bearing in mind the requirement of subsection (4) to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration, and only then consider the application of the "no order principle" in subsection (3), again keeping subsection (4) in mind."

In a sense, this seems to be a restatement of the two stage approach set out in Lothian Regional Council v A 1992 SLT in relation to the provisions of the 1976 Act.

[30] If the section 84(1)(5)(c)(ii) test is met, and the court considers that it would be better for the child that the order be made than that it should not be made, then consideration requires to be given to which, if any, of the ancillary provisions mentioned in section 82(1) should be included in the order and there, of course, the requirements of sections 84(3) and (4) must again be taken into account.

[31] In some of the reported cases on the interpretation of section 84 it has been suggested that section 14(4) has a role to play in this initial decision as to whether a permanence order should be made. I respectfully disagree. While it is true that, in some cases, the particular matters mentioned in that section may, in themselves, be circumstances which relate to the welfare of the child to which regard must be given in terms of section 84(4), the wording sections 14(1) ("a decision relating to the adoption of a child" and section 14(4)(d) ("the making of an adoption order") make it clear that the section relates to the discrete decision whether to include a provision granting authority to adopt in the permanence order rather than to whether or not the permanence order should be made. Section 14(4), in my opinion, has no place outwith consideration of whether section 83 authority to adopt should be included in any permanence order which the court is minded to make.

[32] It is only if a permanence order is to be made that provision granting authority for the child to be adopted can form part of it. And the test for granting such authority is different from that for the making of a permanence order and is set out in section 83. Such a provision cannot form part of a permanence order unless the conditions set out in section 83 are met. Section 83(1) sets out four such conditions. One (subsection (1)(d) ) is the familiar "no order principle" found in section 84(3). Two (subsections (1)(a) and (b)) are not the subject of controversy in the present case. The fourth, which is an important issue in the present case, is that either the parents consent to the adoption or that the court is satisfied that such consent should be dispensed with. Any decision to dispense with consent is predicated on the discrete test set out in sub-section 83(2). It seems to me that the remarks of Lord Bonomy in TW and JW v Aberdeenshire Council in relation to section 84 apply with equal force to the approach which must be taken to the conditions in section 83(1) and the considerations found in section 14. As in the present case, there is likely to be little controversy over the conditions in sections 83(1) (a) and (b). The initial focus is likely to be on sections 83(1)(c) and 83(2), always bearing in mind the section 14 provisions. In the present case the grounds which may be relevant to dispensing with consent are those in sections 83(2)(c) and 83(2)(d). But section 83(2)(d) is only relevant if the section 83(2)(c) ground is not made out. Read short, section 83(2)(c), together with sections 83(3)(b) and (c), provides that the court must be satisfied that the parent is unable to satisfactorily discharge his or her parental responsibilities and exercise his or her parental rights and is likely to continue to be unable to do so. So, again, what is contemplated is a two stage approach focussing first on the condition in section 83(2)(c), together with sections 83(3)(b) and (c), and then returning to consider the condition in section 83(1)(d), taking into account the considerations in section 14. If the test in section 83(2)(c), together with sections 83(3)(b) and (c), is not met, the court may still grant authority for the child to be adopted if the welfare of the child requires the consent to be dispensed with (section 83(2)(d)). As I discussed in Application by LD for the adoption of child CH, unreported, Dumfries Sheriff Court, 15 September 2011, it seems to me that if the section 83(2)(d) ground is made out it is not necessary to consider separately, in terms of section 83(1)(d), if it would be better for the child to make the order than not. That would simply be to repeat the exercise which section 83(2)(d) contemplates.

[33] Because the grant of authority to adopt in the context of a permanence order is a decision relating to the adoption of a child, the considerations set out in section 14 are directly relevant at this stage. In deciding on whether to grant authority for adoption of the child, the court must have regard to all the circumstances of the case, including the value of a stable family unit in his or her development; the likely effect upon him or her throughout his or her life of the making of an adoption order; and the need to safeguard and promote his or her welfare throughout his or her life, which must be the paramount consideration. There is reference to the child's religious persuasion, racial origin and cultural and linguistic background; (no real issue arises here in respect of these factors). The children are too young to express their own views.

[34] For completeness, I should mention one difference found in the paramount considerations to be taken into account in relation to whether to make a permanence order and whether to include in that order a provision granting authority to adopt. Section 84(4) speaks of the safeguarding and promotion of the welfare of the child "throughout childhood". Section 14(3) speaks of the promotion of the welfare of the child "throughout the child's life". I see no difficulty in applying these different considerations to the two separate tests. Childhood is part of life. A permanence order does not last beyond childhood. An adoption order creates legal and actual relationships which last for life and seeks to sever relationships, legally at least, for life. So it is hardly surprising that the considerations to be taken into account for each order should be different. For example, in decisions about contact with birth parents or other relatives after the making of a permanence order, as distinct from such contact after the making of an adoption order, these differences may be of significance.

[35] Taking account, where appropriate in relation to each question, of the factors to which I refer above, I approach the issues raised by each application as follows:

Would residence of each of L, K, A and R with either BM or CR be, or be likely to be, seriously detrimental to the welfare of the child?

Should a permanence order be made?

If a permanence order is made, which ancillary provisions should be included in any order?

If a permanence order is made, which, if any, arrangements for contact between each of L, K, A and R and BM or CR should it contain?

Are any further steps in procedure required before a decision on contact can be made?

Is either BM or CR unable, satisfactorily, to discharge the parental responsibilities or exercise the parental rights referred to in section 83(3)(a) or be likely to continue to be unable to do so?

If either BM or CR is unable, satisfactorily, to discharge these responsibilities or exercise these rights, or be likely to continue to be unable to do so, should the consent of BM or CR to the making of an adoption order to be dispensed with?

Is it better for each of L, K, A and R that authority for each of them to be adopted should be granted?

The Evidence

[36] Emma Visca became the Health Visitor with responsibility for the family in June 2009. When taking the case over she was aware that BM had had two previous children removed from her care, that CR had a large number of other children, that there had been previous social work support and intervention, both for CR's other children and for the children which BM and CR had together and that they were classified as an "intensive" family requiring a high level of support. Her visits to the family varied in frequency depending on the age and stage of the children. When A was born, for example, she visited weekly but then monthly and, because the Social Work Department was carrying out an assessment, she did not visit between December 2009 and May 2010. My impression of her evidence was that, although there were concerns about the family and the ability of BM to cope with her very young children, Mrs. Visca did not have any significant concerns about the family until October 2009 when she learned of the concerns which others had about CR's drinking; although she was generally aware of this as early as August. Even after that, at the beginning of November, she carried out a SOGS (Schedule of Growing Skills) assessment of L which was satisfactory. On 8 October she contacted Daniel McKeever about CR's drinking and was advised that an assessment of the family was to be carried out. Shortly afterwards CR told her that the social worker involved, Amanda Stevenson, would not be allowed back in the house. In November her concerns deepened when she saw bite marks on K's upper arms. She learned from BM that these had been caused by KR. She referred the matter to the Social Work Department (No. 1/22 of Process). She also became concerned that, when she visited, all the children were in the living room where there was a safety gate which seemed to prevent the children getting out of that room, that BM always answered the door, that CR only appeared occasionally and that he seemed to sit in the kitchen with other visiting adults. The house was untidy and cluttered.

[37] On 16 December 2009 S disclosed to Emma Visca that she had been sexually abused by men and women at her home when she was younger and had been removed from her mother's care. She had been told that CR was involved in the abuse but she did not believe that. Mrs. Visca referred the matter to the Social Work Department (No. 1/23b of Process). It was following this that Mrs. Visca "took a step back" while she understood an investigation would take place. She did not visit again until May 2010 but on 7 May she was told by the teacher at the nursery which K attended that K had presented on more than one occasion with a bad nappy rash, a very dirty, red and sore bottom and dirty legs. That had been reported to the Social Work Department but the teacher had been told the file on the family had been closed. At the same time, Mrs. Visca was advised by the Social Work Department that the Comprehensive Assessment had been carried out and the file in relation to the family had been closed. She telephoned Eileen Donnan who had carried out the assessment but appeared to be unaware of the referral about the sexual abuse disclosure. Mrs. Visca expressed her concern. She made a further referral (No. 27a of Process).

[38] Between May and December 2010 Mrs. Visca visited the family on approximately seven occasions; sometimes with Wendy Green, a nursery nurse. She also liaised with the speech and language therapist, Christine Weir and Jill Cummings. The picture which emerges from her reports of these visits was a mixed one but the consistent themes were a dirty, cluttered and untidy house, children who were dirty in a way which was not attributable simply to, for example, playing in the garden and, particularly for L, bad behaviour and language which BM seemed unable to direct or discipline although she seemed aware that his behaviour was not as it should be and reported concerns. She saw little of CR who was usually in the kitchen. She, like other witnesses, commented on the number of visiting adults in the house. She saw very little interaction between CR and any of the children. She gave advice about play and stimulation of the children. BM said she was happy to follow that. CR expressed no interest in doing so and she did not see him make any effort to engage with the children.

[39] In May Mrs Visca observed L drooling and mouthing a car. K was very quiet. She suggested a referral to the speech and language therapist. BM agreed. She later learned that the appointments made, save the first, had not been followed up. A visit in August resulted in a further referral to Social Work (No. 5/5 of Process). A SOGS assessment was carried out on L. This showed that he was behind his age in several areas of his development. BM indicted she would consent to a referral to the Child Development Centre. She later learned that BM and CR had delayed in consenting to the referral.

[40] The referral to Social Work (No. 5/5 of Process) resulted in a meeting of interested professionals in early September at which it was agreed that Social Work would liaise with East Sussex social services to investigate CR's contact with them and the disclosure made by S. Following this, Mrs Visca received an angry and aggressive phone call from CR. Her supervisor advised her not to make any further visits until the investigation had been completed. She did, however, speak to Christine Weir who described to her L's behaviour in terms similar to those she used when giving her own evidence.

[41] A visit on 18 November revealed a house which was clean and tidy - an improvement since August. But she remained concerned. Both A and K were very quiet and did not speak much. K's speech was poor and she grunted. K also sat on Ms Green's knee which Mrs Visca thought unusual when she hardly knew her. There was continuing concern on a further visit when BM reported that the children fought a lot. L and K were observed hitting each other. Strategies were discussed with BM who was aware that L's behaviour at nursery was problematic. Again, K was observed sitting on Ms Green's knee. On 2 December a bruise was noticed on K's eye. Her two year assessment was unsatisfactory so a SOGS assessment was scheduled. K sat on Ms Green's knee and cried when they left. Mrs Visca thought this unusual and might indicate lack of attachment to BM.

[42] Mrs Visca's final visit was on 10 December. The house was dirty with food lying on the floor. A, K and L had nappies full of urine and faeces. K had bite marks on her thigh and arm. L looked unwashed. He was aggressive throughout the visit. Mrs Visca was unable to undertake the SOGS assessment because K was struggling to concentrate and did not respond to her name. R had a bad nappy rash. (Mrs Visca had asked BM on 2 December to take him to the doctor about that but this had had not been done.) A did not speak throughout the visit. Mrs Visca was distressed by this visit (indeed, recollecting it in evidence also caused her distress). After discussion with her supervisor it was agreed that another Health Visitor would take the case over.

[43] In cross examination, Mrs Visca rejected the suggestions that her approach to the family had been unduly coloured by what she had been told when she took the case over. She said that she had approached the family with an open mind and with the intention of making her own assessment of them. She also rejected the suggestion that her distress showed an inappropriate professional reaction or approach. She strongly rejected the suggestion that she had embellished or added to the disclosure by S about sexual abuse. She was realistic in her response to questions about the difficulties inherent in managing and looking after three very young children but did not depart from her descriptions of what she had seen and the lack of care which it demonstrated. Likewise, she was clear that the SOGS for L showed significant impaired development. She was pressed on the various concerns which she had identified in her affidavit and evidence but rejected the suggestion that these were exaggerated. Like several of the witnesses she was picked up on her use of the word "never"; for example, that CR had "never" allowed her private access to BM. But she accepted that and made an appropriate concession. It did not detract from her entirely credible impression, supported by almost all the witnesses who visited the house, that CR was not often in the living room, rarely engaged with the professionals who visited but was often in the hall or in the kitchen and that BM deferred to him and was heavily influenced by him.

[44] Ann Marie Conner took over the health visitor role from Emma Visca. It was suggested to her that she came to the role with her mind made up and influenced by the view which Emma Visca had formed. I accepted her evidence that she had done neither but had formed her own impression although, of course, she took into account what Emma Visca had told her about what she had observed. Her involvement was between December 2010 and the removal of the children in May 2011. A SOGS assessment of K carried out in December 2010 indicated that there was some developmental delay in speech and language. She carried out her first home visit on 19 January 2011. The house was untidy to the extent that it presented a health hazard to the children (broken toys presenting a choking hazard). The children rarely smiled. K would sit on the Heath Assistant's knee and was very clingy - unusual in Mrs Connor's experience when the person was largely unknown to the child. CR was usually in the kitchen. She saw very little, if any, interaction between him and the children. L's behaviour was bad. He shouted and swore and was rough with the other children. There was inconsistent discipline exercised by BM towards the children which led to them becoming distressed. In January and February she was concerned that A was not taken to the doctor because of a persistent chesty cough. In March K appeared unkempt, had dirty feet and smelled. BM appeared overwhelmed by the task of caring for the children. Such was Mrs Connor's concern that she referred the children to Dr Mitra. A visit to L's nursery in February showed a contrast between a happy smiling child and his emotionally volatile behaviour at home. Her impression was that R was left in his pram for long periods and lacked stimulation. Her observation of the children led her to conclude that they lacked attachment with BM, fought with each other and sought inappropriate attention from visiting professionals. On the majority of her visits the children appeared pale, unkempt, had dirty feet and necks and strong body odour. She continued to see L after he had been removed from BM and CR. She saw a settled, communicative, happy child in contrast to the extremely passive child whom she had observed in the family home. Her opinion was that the emotional and physical wellbeing of the children would be hugely impeded if they were returned to their parents' care.

[45] Dr. Andrew Mitra first became involved with the family when, around 11 February 2011, he received a referral from Anne Marie Connor about L following the SOGS Assessment which she had carried out and the concerns which it raised. In March 2011, before Dr. Mitra could arrange an appointment to see L, he was admitted to hospital with a vomiting bug and remained in hospital overnight. He took the opportunity to see L and observed an extremely active boy who was alert and constantly moving. At times he appeared upset and agitated. Later that day he learned that L had thrown himself onto the ground when he was upset and his mother had left the ward. His conclusion at that stage was that L's behaviour was due to his social situation and would improve if consistent boundaries were set. He doubted if L suffered from ADHD but, because of the family history (L's brother M), made arrangements for an assessment. (In August 2011 this assessment confirmed that L did not suffer from ADHD.) A had been admitted at the same time with the same vomiting bug. Dr. Mitra noticed what appeared to be a bite mark on the left side of her neck. During examination she exhibited a good bond with BM with A looking for cuddles. Concern on the part of Dr. Mitra about the bite marks led to a Strategy Meeting about A being brought forward to 11 March. At that meeting it was agreed that a forensic examination of A should be carried out. This confirmed that the mark was a bite mark.

[46] Dr. Mitra was next involved in May 2011 when K was brought to the hospital by BM with a bruise to her forehead. Because Dr. Mitra felt that no satisfactory explanation for the bruise was provided by BM, and because K's name was on the Child Protection Register, he admitted her to hospital overnight. An examination confirmed a bruise caused by blunt trauma.

[47] Later, in June, Dr. Mitra cooperated with Anne Marie Connor in preparing Reports on each of the children for the Reporter to the Children's Hearing (5/14 to 5/18 of Process). Essentially, these were summaries of what he had observed and concluded and what Emma Visca and Anne Marie Connor had observed and concluded; and the joint conclusions which they drew from a review of that material. That in relation to K contained his opinion that her bruise was more than a simple trip on the floor but could have been either a trip and falling against the corner of a table or chair or having been hit with a stick or object. It was clear from his evidence that it was the failure of BM to provide what he regarded as a satisfactory explanation which was the principal source of his concern. In respect of each of the children Dr. Mitra was of the opinion that each was suffering from neglect of their physical care but also concern about emotional neglect and a failure to meet the children's emotional needs. At one point of his evidence, in cross examination, he categorised the physical neglect as a 10 on a scale of 1 to 10.

[48] As with several of the witnesses for the petitioners, it was suggested in cross examination that Dr. Mitra's views, expressed particularly in Nos. 5/14 to 5/18 of Process were not balanced. He was asked about the validity of the SOGS assessment. He rejected the suggestion that it was unreliable and explained how it had been tested and validated locally. He accepted that the results of these assessments might be differently interpreted. He did not depart from his view that those carried out on the children showed impaired development. He accepted that any conclusions he had based on what he had been told by the health visitors rested on the accuracy of what he had been told. Although it was suggested to him that some of the adverse information which they had reported might not be as bad as it appeared, he did not withdraw or substantially modify his opinion that the children had been neglected.

[49] In both cross examination and re-examination Dr. Mitra was asked about the attachment of the children, particularly to BM. He was really unable to comment on that from first hand observation but, generally, he concluded from the fact they had settled quickly when removed from the care of BM and CR that the quality of attachment was not great. He accepted, however, that the observations of Dr. Woolfson in relation to L indicated some attachment by L to BM.

[50] Amanda Stevenson was involved with the family between October and December 2009. She was asked to visit the family following a referral (No. 1/21 of Process) from Cameron House Alcohol and Drugs Support Services. CR had been referred to them because he was drinking too much. They learned that he stored alcohol beside his bed where his children might have access to it. Concern about that had prompted the referral. She visited the home on 28 October when CR was very hostile to her; as he had been when she phoned to arrange the visit. She said that she had previously been involved with him as the allocated Social Worker to his son M. She explained that she wished to carry out a "Comprehensive Assessment". CR refused to cooperate. She noted several concerns. Wires were hanging from the television; the children looked dirty with unwashed faces and grubby bodies; they were only wearing nappies; they were throwing toys at each other; the kitchen worktops were cluttered with dirty dishes, medicines and uneaten leftover food. On looking round the house she observed that carpets were dirty and covered with stains, beds were unmade and the bedding was dirty, clothes were scattered in the bedrooms and hallway and the stairs were cluttered with toys. She said that she attempted an unplanned visit on 4 October but no one was at home and that when she phoned twice on 10 October when the phone was answered and put down by both BM and CR when she said who she was. (Although she was not challenged about these dates in cross-examination I wonder if she did not mean November.) This happened again on 23 November. On 8 December she visited with Carol Rammell, a Family Support Worker, but both were refused entry by BM after she had spoken to CR.

[51] Henry Race was one of the out of hours social workers on duty on Saturday 12 March 2011. With his colleague Margaret Biggar he visited the home of BM and CR about 8.30 p.m. that day. The house had a sour, stale and acrid smell to the extent that his wife commented on the smell on his clothes when he returned home. The living room was untidy with discarded food and other items on the floor. L was wearing a grubby top and a nappy with no trousers. He was behaving aggressively. BM told Mr. Race that this was his normal behaviour and he was often up until 1 a.m. K's face was filthy with the remnants of food and snot. R was asleep upright in a car seat on the kitchen floor. He appeared relatively clean. L and K were stuffing their mouths with Pringles crisps. A was in bed asleep under one small thin grubby blanket. There were what looked like food and urine stains on the sheet. Her face and vest were absolutely filthy and encrusted with snot and dried chocolate shake. The beds for L and K were bed frames and bare mattresses. Mr. Race had significant concerns about the physical presentation of the children, their behaviour and their emotional development. He mentioned particularly the mess and state of the house and the children, L's very aggressive behaviour and the fact that K seemed not to be playing and was in a world of her own. His opinion, based on his experience of 20 years, was that there were long term issues about the development of the children and that the state of the house was not the result of things getting out of hand over a few days. Mr. Race and Mrs. Biggar advised BM and CR that the state of the house and the children was unsatisfactory. They supervised the making up of the beds and the cleaning and appropriate dressing of the children. They returned the following day when the house had been significantly cleaned and tidied. L was still behaving aggressively. K and A did not interact with anyone. Discussion with BM led to acceptance by her that things had got away from her. To some extent CR also accepted that.

[52] Jill Cummings' role as educational visitor was to liaise with families where there were pre-school children with learning difficulties. L was referred to her in October 2010 by Ms. Weir because she was concerned about his speech and language development, his low concentration and his poor interaction with other children. She worked with L until May 2011. She was aware of the SOGS completed by Emma Visca. She first visited the family home on 17 November 2010 and, as with her other visits and observations, was able to refer to her contact record (Production 5/13) when giving evidence. On this visit, L's behaviour concerned her. He lacked concentration. He was aggressive, growling at his siblings and taking a threatening stance with them. While there, she also noticed that the house was not clean and that toys were not stored properly. During her visits, CR was rarely in the living room and she observed no interaction between him and the children. She could hear his voice in the kitchen. In December 2010 she observed L refusing to share toys. She observed similar behaviour in January 2011 when she visited jointly with Anne Marie Connor. L ignored his mother's instructions; he refused to share toys; he was growling and roaring and swore at her and at K. BM did not intervene. She witnessed similar behaviour by L while he was at nursery. Mrs. Cumming formed the view that L was the angriest little boy she had come across in 20 years. She had never seen a child so angry so consistently. She advised BM about how to address L's aggressive behaviour. Although she witnessed some better days for L and his behaviour would fluctuate, in March 2011 she advised Mrs. Connor that there were no signs of improvement in L's behaviour. She observed little play interaction between BM and the children. She did not see CR assist with the children or attempt to discipline L. She formed the view that he was more concerned with his own disabilities. He did not discuss the children with her or acknowledge that she was there to assist L. Her direct involvement ended when the children were taken into care but, on one occasion after that, by chance, she saw L at his nursery where he appeared a different child; not growling, no concerns on the part of the nursery staff about his behaviour and, for the first time, smiling and happy.

[53] Christine Weir was involved with L between August 2010 and May 2011 when he attended the pre-school nursery which she managed. When BM and CR came to register L, discussion with CR turned to K and whether a "Sure Start" place might be available for her. It was explained these were not available and CR responded in a demanding and authoritative manner, dwelling on his own difficulties in obtaining benefits for his own disability. L's attendance at nursery was good and BM and CR shared dropping off and collecting L. From the start L's behaviour was aggressive and inappropriate. He threw toys when he could not get his own way, hit, pushed and kicked other children and swore. At times he was a danger to other children and himself. Much of his language was incomprehensible and he merely grunted. Mrs. Weir was of the view that he was copying what he had seen at home and there were no clear routines for him at home. Often, his hands, ears and neck were dirty and his clothes had an unwashed dirty smell. (In cross examination she was clear that it was not the smell of stale cigarette smoke but she accepted that his dirty hands could have been because he had been playing outside.) On more than one occasion he had bad nappy rash. When this was drawn to the attention of BM or CR there would be an improvement for a short time. On occasions CR brought L without a coat regardless of weather conditions. CR said that L could not stand being overheated. Mrs. Weir felt this view was mistaken and that L needed to be warm to play outside.

[54] In September 2010 Mrs. Weir was shown the SOGS assessment carried out by Emma Visca (5/4 of Process). Her observations of L's language and development skills were consistent with its results. Mrs. Visca's description of L's behaviour at home (similar to that in the nursery) gave her further cause for concern to the extent that she started to record a chronology of L's behaviour (No. 5/6 of Process). She expressed her concerns to Daniel McKeever, a Senior Social Worker. In early 2011, various strategies were employed to improve L's behaviour. These were unsuccessful. This included one to one supervision, but for longer periods than normal for other children with similar problems. Because of L's concerning and disruptive behaviour, she referred L to Support for Learning which led to the involvement of Jill Cummings. CR consented to the referral but expressed the view that L's behaviour was similar to his step brother M who had been diagnosed with Attention Deficit Hyperactivity Syndrome (ADHD). The involvement of Mrs. Cummings led to an improvement in L's behaviour. He engaged more in play; he began to group words in short sentences; his behaviour improved; and his outbursts were reduced. Mrs. Weir still had concerns, and there would be dips, but both his communication and appearance had improved by March 2011. By May 2011 his behaviour had not reached a level normal for other children and, with the one to one attention, that was a concern in itself.

[55] In cross examination she spoke of an incident involving play with dolls where, on naming two of the dolls as "mum" and "dad" he became very aggressive and threw the dolls out of the doll's house and kicked it over. She also accepted that if L were upset he would ask for BM, that BM would require a level of assistance to ensure the proper development of her children and that she was aware that BM cooperated with Mrs. Cummings in a system of stars to reward L for good behaviour. Mrs. Weir confirmed, both in cross examination and re-examination, that L's behaviour was very unusual and not something which she had often seen at all in 26 years; and that any improvement in his appearance or behaviour, as a result of discussion with BM and CR was not maintained and was not consistent.

[56] There were three aspects to the evidence of Eileen Donnan. Between January and March 2010 she carried out an assessment of the family following the referral because of concerns about CR's drinking. Her visits revealed a different picture from those of Amanda Stevenson. The home was tidy. The assessments (e.g. Production No. 1/25) concluded that there was not a concern about CR's drinking. The case was closed and it was recommended that no further social work involvement was required. It would be possible to quote extensively from the assessment that the children were "developing well", that there was "positive attachment", that BM and CR were "following practical advice given to them". Its conclusions are very difficult to reconcile with the extensive adverse observations recorded by other health and social work professionals both before and after the assessment period. Equally striking was the failure, at this stage, to take into account the disclosure to Emma Visca by S of the past alleged sexual abuse. Mrs Visca referred that on 17 December 2009 (Production Nos. 1/23a and 1/23b) and it is noted in the social work response "on-going comprehensive assessment being completed. Historical concerns are known to the dept & have been explored at length & will continue to be so by newly allocated social worker". There is no evidence that this was done. Production No. 1/25 is silent on the issue.

[57] As a result of further concern expressed, primarily by Emma Visca (her referral Production No. 5/5, but also in a referral (Production No. 1/30) when BM was expecting R), a meeting of professionals took place in early September 2010. The concerns recorded in the minute of that meeting (Production No. 1/28) centred around BM's pregnancy, L's behaviour and the fluctuating level of care of the children, the allegations of sexual abuse by S and also CR's extensive number of children by a series of mothers. Eileen Donnan visited East Sussex social work department and compiled a family tree and chronology of CR's involvement with them. That was incorporated in Production No. 3/1 and, taking into account the evidence of CR, I have drawn on it to make the relevant findings in fact.

[58] Following that, Eileen Donnan again became involved with the family. She prepared further assessments (e.g. production No. 1/50 dated 20 April 2011). This painted an entirely different picture. It concluded that the Social Work Department could not recommend that the children remained in the care of their parents, that compulsory measures of care were necessary and that the children should be made the subject of place of safety warrants while grounds of referral were established. Ms Donnan's evidence about what she saw in the family home, how often and when, really only became clear when, at the very end of her re-examination and after some questions of my own, she was referred to the case notes of visits (Production No. 1 in the Third Joint Inventory of productions for BM and CR). Can I say, in parenthesis, that records such as these should always be the primary source of reference for witnesses who are describing observations of home conditions, parental or child behaviour etc. which are often at the heart of cases such as this, rather than reports or assessments or Forms E which are completed at a later date and which tend to be derivative and, inevitably, because of the transfer of information, to some extent contradictory or different. The case notes showed that she visited five times between 16 and 25 March 2011. These visits presented a mixed picture. She observed and recorded concerns about untidiness and clutter, undisciplined behaviour by the children and the children dirty on occasions. CR was usually in the kitchen and not wishing to engage. There were instances of soiled nappies being worn. Sometimes some of the children were quiet. There could be a smell of bleach as if used for cleaning. There tended to be a difference between visits which were planned and those unplanned. Ms Donnan's direct involvement ended towards the end of March when she was due to go off work on maternity leave. It was at this point that Peter Shankland took over her role as social worker for the children.

[59] Peter Shankland was, I regret to say, a less than satisfactory witness. I have already recorded Ms Coutts' submission that he was "particularly unimpressive". My own feeling was that it went further than that. My notes are littered with the observation that he seemed "reluctant" to concede or consider what was often entirely reasonable. An example of that related to the bump to K's head, arguably the incident which led to the application for the child protection orders. He seemed quite unable to accept the proposition that BM saying that she did not know how the bump had happened but that it must have happened when K was with the child minder was, in fact, an explanation of how the bump might have occurred. Certainly, he chose to believe the account of the child minder that K had not bumped her head when with her. I did not hear evidence from the child minder and so can make no assessment of whether or not that was reasonable. But, even when it was pointed out to him that other evidence suggested that K did not cry when hurt and that she had sustained other injuries when with other carers, he seemed unable to entertain the possibility that the bump might not have occurred when K was with BM and CR. I make no factual finding about how this bump occurred. On two occasions I had to warn him to answer the questions he was asked rather than volunteer information which he clearly thought might be otherwise supportive of the petitioners' position. He had great difficulty in accepting that BM's belated acceptance that the permanence order should be granted was a shift in her position. His view of indirect contact seemed to be that letters written to children after adoption would be kept by the Social Work Department and simply handed over when the child concerned was 16.

[60] I will not relate at any length his evidence about his visits to the family home and what he observed. It was generally supportive of what was spoken to by others and, to that extent, I take account of it. But his evidence is unnecessary for me to make the findings in fact which I do about the neglect of the children by BM and CR or the findings in fact and law about the likely serious detriment to their welfare if they resided with BM or CR or the ability of BM or CR satisfactorily to discharge their parental rights and responsibilities. It was quite clear that he had formed an early view that there were no circumstances in which the children might be returned to live with BM or CR. I do not believe that he considered the issue of rehabilitation at all at any stage.

[61] The most potentially significant part of Mr Shankland's evidence related to his involvement in the contact which BM and CR had with the children and his opinion on the issue of future contact (including the attitude of the prospective adoptive parents to any such contact). That was significant in two ways. His evidence of what had happened at contact was, to some extent, at variance with that of Yvonne Douglas and Stephanie Cassidy and with that of BM and CR. For example, his assertion, in the Form E (Production No. 3/1) "Contact meetings were frequently fraught and chaotic", and some of the statements which follow that passage, are impossible to reconcile with the generality of the notes taken by Yvonne Douglas and Stephanie Cassidy and the evidence which they gave. It was contradicted by the observations of Dr Woolfson at the contact session he observed. It did not seem to have occurred to Mr Shankland that direct contact, after adoption, was even a possibility. I thought that his evidence was less than frank about any discussions which might have taken place with the prospective adoptive parents, about the possibility of contact after adoption. Although it can only ever be inference, I feel that there is probably force in Miss Coutts' submission that these parents "had been sold a package" which excluded that possibility. That would be consistent with Mr Shankland's own attitude, his ambivalence about what exactly was said to these parents, their very strong opposition to contact, coupled with what both Drs Robson and Woolfson described, at one stage of their evidence at least, as their anger at BM and CR (whom they had never met) before, and his promotion to the Children's Hearing of the cessation of contact immediately the children were placed for adoption and days before the present petitions were lodged. He was also instrumental in the decision that the contact observed by Dr Woolfson took place with the children individually rather than together. This is not what I had intended when I made the order. It clearly baffled those appearing in the case. It surprised Dr Woolfson and had not been requested by him. It was in contrast to what had happened previously. All this led me to approach Mr Shankland's evidence about contact with considerable caution. And his account, contained in his affidavit and the Form E which he completed, was clearly an important source of, and a significant influence on, the opinions formed by Dr Robson. This led me to consider that I should exercise care in relation to any conclusions she had reached on the basis of that information.

[62] Yvonne Douglas adopted her affidavit (No.12) and was not examined. She was cross-examined by Miss Coutts but only to a very limited extent by Ms Hughes and she was re-examined briefly by Mr Sharpe. In his re-examination Mr Sharpe did not raise the issue of what interaction there was between BM and the children. Yvonne Douglas visited the family about four times between 22 February and 5 May 2011. Her observations were in line with those of the Social Workers and Health Visitors. There was a mixed picture. On some occasions there was little of note. On others there were matters of concern. She saw K with a wet nappy hanging down to her knees. The children were in bare feet and their feet were dirty. They looked unkempt and unclean. A and R were unresponsive. L used bad language and grunted when it was suggested he should not. There were often broken toys but, on occasions, the children were seen playing happily on a bouncy castle in the garden. When she saw the children's bedrooms there was a smell of stale urine. L's door had a lock. Some sheets were clean; others had stains. On one occasion L was crying but neither CR nor BM intervened. She expressed the view that none of this would have required the removal of the children from their parents.

[63] On 5 May she visited with Peter Shankland when she noticed the bump on K's forehead. She spoke in very similar terms to what Peter Shankland had said about BM's response to being asked how that had happened. She had spoken to the child minder. She was able to say that the outing with the child minder had only lasted an hour and that K had returned shortly before she and Mr Shankland had arrived. It was what she regarded as a lack of a satisfactory explanation which caused her concern. She accepted that BM had taken K to the doctor as requested. She had no input in the decision to seek the Child Protection Orders. She attended on 6 May with Mr Shankland to execute the orders and collect the children. She took R from BM who handed him over. His baby grow was dirty and smelled of urine.

[64] Mrs Douglas's involvement with the children continued when she assisted with the contact which BM and CR had until February 2012. She visited R's foster home on 7 May. He was smiling. She had never seen him smile before. She supervised thirty five contact sessions with the children and BM and CR. Her evidence indicated that little thought appears to have gone in to making contact easy, comfortable or meaningful. For example, the initial contact sessions were in a room in full view of passers-by with little in the room save a couch and some toys. Contact was moved from Dumfries to Kelloholm (where some of the children were accommodated but thirty miles from Dumfries). BM attended by bus but the bus times did not coincide with the contact times. Contact was moved back to Dumfries and to a better facility.

[65] Mrs Douglas's observations of contact were recorded in Production Nos. 4/1 to 4/41. In her evidence she did not really expand greatly on what she observed and noted about the quality of contact with BM. Some of the contact visits were with BM alone. A reading of her notes indicates that, given the constraints and artificiality which goes with contact in a community centre and lasts for one hour at a time, there was nothing unusual, harmful or concerning about the contact. There are references to the children recognising BM and running to her and, though less frequently, to their approaching CR. They recognised and interacted with BM's father PM and with CR's daughter S and her own daughter KR. At some of the earlier contacts the children were distressed when leaving. BM sometimes found it difficult to play simultaneously with the four children. Sometimes the children were distracted or more interested in each other, someone else who was there or a particular toy or situation. On several occasions BM's attention seemed to be focussed on R. As late as December 2011 Mrs Douglas expressed the view that there should be an extra half hour of contact (Production No. 4/31). She was surprised when contact was stopped. In respect of L and R she said that there was no sign of confusion at the final contact on 20 March 2011 which was after both had been placed with the prospective adopters. Nor was there any sign of either BM or CR attempting on any occasion to undermine any of the children's placements. A and K stopped going for contact in about November/December 2011. Her evidence was that A had been asked if she wanted to go and her refusal was accepted.

[66] In respect of CR, her evidence was that he did little to interact with the children. She was conscious of his disability but did not feel that should have prevented him playing with or reading to the children. She accepted, however, that the children would sometimes go up to his scooter and sometimes climb on his knee. Sometimes he brought presents for them. Sometimes he was distressed when contact ended.

[67] Mrs Douglas also spoke to several bruises noted on K and A when they attended for contact and which both BM and CR noticed and commented on. For example, on 26 July 2011 (Production No. 4/11) such a bruise was noted on A's forehead. The carer was contacted and it was explained that A had tripped. The carer apologised for not having explained this when A was collected. A similar example in relation to K can be found on 6 September (Production No. 4/18).

[68] Stephanie Cassidy's evidence added little to that of Yvonne Douglas. Again, her evidence in chief was the adoption of her affidavit and the records of the contact visits which she had compiled jointly with Yvonne Douglas. She was present when the children were removed and spoke to the grubby appearance of L and R. She said that, during contact sessions, BM generally interacted well with the four children and made attempts to engage with them and play with them. At the beginning, her attention was more concentrated on R but as he grew older and more independent her attention was shared more evenly. Her evidence about why the two girls ceased to go for contact confirmed what Yvonne Douglas had said about A being asked although she said that she tried to persuade them. It did not seem to have occurred to her that they might simply have been put in the car. The same distinction was drawn between the interaction of BM and that of CR. She did not think that contact should have ceased. There was nothing in her evidence, apart from the reluctance of A particularly to go for contact, which indicated that contact was distressing or upsetting to the children; or that the level of interaction of BM, given the constraints of the situation, was unsatisfactory or unusual.

[69] Of the witnesses whose evidence consisted solely of their affidavits there was little of value in those of Daniel McKeever or Elizabeth Dickie. They appear to have had little, if any, direct contact with the children or with BM or CR. They were managing the work of the other members of the Social Work Department and making decisions about the steps to be taken. They based these decisions on very much the same primary information about the children and their welfare as was available to me from the evidence of the staff members and others directly involved. They had the same reports. They had the disadvantage of not having heard the evidence directly, on oath and subject to cross examination. The affidavits of MM and LB confirmed the evidence of the physical condition of L and R when taken into care and the improvement in their physical appearance and behaviour after having been with them as carers for a relatively short time. Both had some involvement in contact. There was nothing in their evidence which suggested that contact was upsetting for either child or that either BM or CR behaved inappropriately during contact.

[70] The most helpful evidence about future contact came from Dr Robson and Dr Woolfson which I will examine together. Both are psychologists. Mr Sharpe urged me to prefer the professional background and qualifications of Dr Robson. She is well known as having prepared reports and given evidence in very many similar cases over the past twenty six years. Dr Woolfson's career, on the other hand, has been as an educational psychologist working, in the later stages of that career, at a senior level in Renfrewshire. His experience of direct involvement in the legal arena is more recent. I do not accede to Mr Sharpe's suggested preference. Dr Woolfson's experience of parenting issues, developmental problems, behavioural difficulties and learning difficulties seemed to me to be directly and practically relevant to the issues in the present case. He was as well suited as Dr Robson to comment on and discuss the research literature which formed part of the evidence. Both these witnesses were well qualified to give opinion and expert evidence on the issue of post adoption contact and contact in the context of a permanence order. In approaching their evidence, however, I had in mind what Lord Nimmo Smith said in McTear v Imperial Tobacco Ltd 2005 2SC 1. And I was conscious that in this area, as Lord McCluskey has observed on several occasions, expert evidence should not always be necessary in relation to matters which are, to some extent, common sense or ordinary human experience. For example, Dr Woolfson described some of what was in his report as common sense; Dr Robson conceded that, during contact, normal experience indicates that children will sometimes play on their own or with other children rather than interacting constantly with the adults present as seemed to be the expectation of some of the social work witnesses. In ordinary experience of life that is not what happens.

[71] Dr Woolfson, it seemed to me, had one advantage over Dr Robson. He had observed contact between BM, CR and L, K and R. This was only for about forty five minutes each. Dr Robson seemed sceptical that there was value in this. And, of course, my decision to allow the observed contact had been fiercely and persistently opposed by the petitioners. But, particularly in respect of L, I believed Dr Woolfson that the contact had gone well, that it showed that L recognised BM and CR and was pleased to see them. As with the other children there was no indication of the predicted distress and confusion which had been the centrepiece of the petitioners' submissions in opposing the observed contact. Nor was any evidence led to indicate that the observed contact had had any subsequent adverse effect on any of the three children. The contact had taken place on 27 July. Given the extensive efforts which the petitioners, quite correctly, devoted to leading evidence of a range of factors and events which had impacted adversely on the welfare of the children while in the care of BM and CR, I think I can fairly infer that no such evidence was available and that the observed contact had not been in any way adverse to the children's welfare

[72] Both Dr Robson and Dr Woolfson had produced reports (respectively Production No. 5/23 and Production 2/1). In the course of these reports and their evidence they discussed and commented on several relevant publications:

Neil, E (2010), The benefits and challenges of direct post-adoption contact: perspectives from adoptive parents. Aloma, 27, 89-115.

Loxtercamp, L (2009) Contact and Truth: The Unfolding Predicament in Adoption and Fostering. Clinical Child Psychology and Psychiatry Vol 14(3) 423-435

Triseliotis, J (2011) The current status of post adoption contact. Educational and Child Psychology Vol 28 No 3

Logan, J (2010) Preparation and Planning for Face-to face Contact after Adoption: the Experience of Adoptive Parents in a UK Study Child and Family Social Work 15

[73] For the most part, both Dr Robson and Dr Woolfson adhered to the conclusions which these reports contained. In fact, there was much in common between them. The difference was one of emphasis; whether, generally, direct contact after adoption was likely to benefit children; and whether, in the present case that was so. Both agreed that there were four potential benefits of such contact (and also indirect contact): allowing the child and birth relatives to maintain an existing relationship, providing reassurance to the child and birth parents about each other's welfare, helping the child to deal with issues of identity and loss and helping the child deal with his or her dual connection to both the adoptive family and the birth family. Both also agreed that for direct contact to succeed and be beneficial for the child there must be evidence, firstly, of attachment between the birth parents and the child, secondly, that the birth parents must accept that their care of the children has led to the need for adoption, that the future of the children lay with the adoptive family and that they would do nothing to disrupt that and, thirdly, that the adoptive parents entered into contact arrangements willingly. Dr Robson interpreted the literature, and drew on her own extensive experience of the rarity of direct contact orders, to conclude that face to face contact was very unusual and only likely to benefit children in a few exceptional cases. Dr Woolfson placed more emphasis on the views of Elspeth Neil, particularly in the article cited, that such contact could be beneficial.

[74] Dr Robson was of the view that there was no emotional attachment between the children and BM and CR. She conceded, however, that what Dr Woolfson had observed indicated some attachment between L and BM. Dr Woolfson, reviewing the same material as Dr Robson, but also taking into account his discussions with BM and CR and the observed contact, was of the view that such attachment did exist, certainly between L, K, R and BM and, to a weaker extent, between L, K, R and CR. A had not attended for contact. Despite that, Dr Woolfson was prepared to infer that attachment existed. Dr Robson did not think that BM and CR accepted the extent of the neglect which the health and social work professionals had observed. The refusal to consent to authority to adopt (or, in the case of CR, to the grant of the permanence order) was indicative of that. BM's acceptance of the need for the permanence order had come very late in the day. Dr Woolfson was really in agreement on this. He doubted if BM understood the seriousness of the concerns which had led to the children being taken into care. CR told him that he could identify no area for improving his parenting skills, that he did not agree with the concerns expressed by the professionals and that the petitioners had acted unfairly without any reasonable justification for taking the children into care. Dr Robson said that even in a supervised scenario it was impossible to prevent remarks or behaviour which might destabilise the adoptive placement or suggest to the children that their adoptive placement was not truly their home. Both Dr Robson and Dr Woolfson had interviewed the adoptive parents. Both sets had told them that they felt there should be no further contact between the children and BM and CR save for infrequent episodic letters which would be given to the children when they were much older.

[75] Dr Robson's conclusion was that there should be no face to face contact but there should be indirect letterbox contact twice a year in March and September so as not to coincide with the children's birthdays. Such contact should be two ways - the birth parents to write to the adoptive parents and the latter to respond with information about the children's general wellbeing and progress but no photographs. Dr Woolfson felt he could reasonably recommend one direct face to face supervised contact session every three months. The psychological impact of such contact would require to be closely monitored. BM and CR should be supported and advised regarding how to respond to the children during contact. Work would require to be done with the adoptive parents to help them to be more supportive of contact before contact commenced.

[76] BM said in evidence that she accepted that the children would not be returning to live with her. She accepted that their lives would be better with their prospective adopters. That is not what she would have preferred but she accepted it. She could not bring herself to consent to authority to adopt being granted but she seemed to accept that this is what would inevitably happen. She said that she loved her children. She wanted to see them "more as a friend". She said that, when exercising contact with the children, she had never done anything to disrupt any of their placements. She would not do so. Her attitude towards her care and treatment of the children before they were taken into care was more ambivalent. She accepted that they had not been looked after properly. But she insisted that the neglectful care had not been "all the time". An attempt was made by Mr Sharpe in cross examination to suggest this insistence was at variance with her acceptance of the grounds of referral in July 2011. She became quite distressed at this point and an adjournment was necessary. I did not find the inconsistency which Mr Sharpe pressed. Indeed the petitioners led evidence that there were periods when the children were not neglected. That was the conclusion of the assessment carried out by Eileen Donnan (whatever its deficiencies). So I am not prepared to conclude that BM does not fully accept that the children's future home is with the prospective adopters or that she does not now accept that this is because of her inability to care properly for them. Faced with the loss of her four children, her acceptance of the need for the permanence order, her acceptance that the children will not return to her and her lack of active opposition to the grant of authority to adopt, it is not necessary to force her willingly to embrace that drastic step to conclude that she does recognise where the best interests of her children lie. I also believed her when she said that she would do nothing to disrupt or destabilise the children in their new adoptive families or during any proposed contact. There was no evidence whatsoever that she had attempted to do so since their removal. She had offered no difficulty on the night they were removed. Her previous decision, though taken when she was much younger and in different circumstances, to agree, and in the case of the younger child to promote, the adoption of her two earlier children was also supportive of that. As was the lack of any evidence that she had done anything to disrupt these previous adoptions despite having indirect contact and being aware of the identity of the adopters. Her evidence was to the contrary and I accepted it.

[77] CR's evidence was in sharp contrast to that of BM. He did not accept the evidence of the health and social work professionals about the neglect of the children. He accepted that things had got difficult for BM after he became unwell and less mobile in the latter part of 2010. His response to many of the observations of neglect in the home was that he had not seen what was said to have been observed. In effect, I was being asked to conclude that much of this evidence was either exaggerated or wrong. I have no doubt that from time to time he cooked, cleaned the house, arranged medical appointments and took the children to nursery but the evidence pointed clearly to serious neglect of the children over a considerable period and his unconvincing answer was that he had not seen it. That in itself simply confirmed his lack of awareness and involvement and supported the extensive body of evidence that he rarely reacted with the children. He indicated that his disability had prevented him from assisting as he had done before and that this had led to things "getting out of hand". Significantly absent from his evidence was any explanation of how the children would be cared for if they were returned to live with him and BM or what changes he would make. There was really no exploration of how BM's acceptance that the children's residence with them would be seriously detrimental to their welfare could be reconciled with his position. On the other hand, I accept that, at times, he did act in the best interests of the children. His work on the house in Dumfries where the family lived was one example. And he seems to have provided a bouncy castle and other toys for their play. But he had no answer to the considerable volume of evidence that his interaction with the children, or his involvement with the professionals visiting the house in relation to their welfare, was extremely limited if not hostile. That he was detached from them was confirmed by the evidence of what happened during the contact sessions and the children's more tentative involvement with him. He repeated what he had said to others; that the removal of the children had been unfair and unnecessary.

[78] There were two aspects of his previous history which certainly occupied much time both in court and in the deliberations of the social workers. The first related to the historical allegations of sexual abuse awakened by the disclosure of S to Emma Visca. CR denied any involvement in these. I have to say I believe him. It is always very difficult for someone in the position of CR to disprove such allegations but his involvement was denied by S when she gave evidence, the allegations were never established or proved in any English proceedings, the assessment undertaken in 1998 concluded that he did not pose a sexual risk to children and, for some periods at least after that, some of his children lived with him with the knowledge and apparent approval of Sussex Council. And, of course, such allegations did not form part of the grounds of referral which led to the removal of the four children in the present cases.

[79] The second aspect was CR's previous family background. It was submitted by the petitioners that CR was a predator of very young women by whom he had fathered a multitude of children; and that his relationship with BM (he was 46 and she was 18 when L was born) was another example of that. This was the position of Mr Shankland and the social work professionals. CR denied that this was the case. He pointed out that the mother of six of his children (CW) was three years younger than him and they had known each other at school. An examination of the family tree in Production No. 3/1 shows that the eldest of their children was born when he was 27 and she was 24. Another of the mothers of three of his children (KS) was older than CR as was SP (one child when he was 18 and she was 19). VP (one child) was the same age - 27. The age differences when the first child was born for RH (23 and 18) and JA (43 and 34 when the first of two children was born) did not seem unusual and did not support the position adopted. That left Karen B (one child when he was 30 and she was 17) and Kate B (one child when he was 37 and she was 18). The age of a further woman (one child when he was 44) is not noted. I have to say that, in my opinion, the emphasis of the social workers in this area on the predatory nature of CR's relationships is misplaced. But that does not mean the pattern of the relationships is unimportant; quite the reverse. The significant feature is that, for most of his other children, CR has played only a limited part in their lives. He seems to have fathered them without any thought to the responsibilities which section 1 of the 1995 Act (and, no doubt, the analogous English legislation) imposes. For the children where he took an active part in their care there was persistent social work concern and involvement between 1988 and 2006. That pattern, together with the observations of the health and social work professionals between 2009 and 2010, makes incredible and unreliable his evidence that he played a meaningful role in the lives of the four children in the present cases. That lack of involvement contributed significantly to the neglect the children suffered and its level.

[80] Perhaps the only credible part of CR's evidence related to his relationship with his daughter S. That was supported by S when she gave evidence. I had no reason to think that she was being untruthful when she said that CR had kept contact with her when she had been in care and the fact that she had remained in care, rather than been adopted, had led directly to the relationship which they had today - they saw each other regularly. And the same seems to be true in relation to his sons M and H. This was the basis on which he felt that the children should remain subject to supervision rather than be adopted.

[81] On the issue of contact he maintained that there was a bond between him and the four children but did not really provide evidence of why that was beyond what very limited attachment which might be inferred from what Dr Woolfson had observed.

[82] The remaining witness was PM, the father of BM. He had visited BM's home most days. Significantly, he accepted that the home was dirty, cluttered and chaotic most of the time but it would be cleaned up as well. He seemed to accept that things had gone downhill particularly after CR became incapacitated. He spoke to BM's love for the children and to the numerous photographs which he had taken of the family together. Although he indicated he was surprised that the children had been taken into care he did not indicate that the children should come back to live with BM. He felt that she had not got the necessary support from the social work department. He had attended several contact sessions. He described these as good. He enjoyed them. He felt that the children had enjoyed them. He was asked about BM's position and said that she "wanted the kids back". He seemed unaware that she was no longer opposing the permanence order.

Discussion

(a) Permanence Order

[83] I have set out in considerable detail the evidence which I heard about how BM and CR neglected to care for their children and failed to discharge their parental responsibilities. In light of that I have cast the Findings in Fact about that neglect in general terms. I was satisfied that this evidence, particularly from Emma Visca, Anne Marie Connor, Amanda Stevenson, Henry Race, Jill Cummings and Christine Weir was credible and reliable. One caveat I would enter relates to the SOGS assessments. At least one of these had been inaccurately completed. So I was cautious in drawing any conclusion about the children's development solely from them. Where they were useful was in tending to confirm the direct observations about the development and language skills of the children made by some of these witnesses. The evidence of these witnesses found support in the evidence of other witnesses including some of what PM had to say. Although a decision on the mixed issues of fact and law of whether residence of the children with BM and CR would be seriously detrimental to their health or whether BM and CR are and are likely to be unable to continue to discharge their parental responsibilities, is for the court alone, I am entitled to take into account the views formed by other professionals with experience of child care. All, including Dr Mitra, Drs Robson and Woolfson and June Holland, the safeguarder appointed by the children's hearing, concluded that the children had suffered significant physical and emotional neglect and that they should not be returned to live with BM and CR. The evidence established clearly that BM was the principal carer of the children. She has accepted that the permanence order should be made and that she is unable to offer the children a sufficient standard of consistent care. There was no evidence at all that CR was in a position to care for the children on a day to day basis or that he had ever been able to do so, certainly after he became more unwell in the latter part of 2010. The evidence about his previous relationships and children, in the way I have discussed above, adds to that. All these strands of evidence lead clearly to the conclusion that if the children were to return to live with BM and CR the neglect which occurred before would be likely to occur again. That neglect was seriously detrimental to their welfare and would be likely to be so again. So I have little difficulty in finding that the test set out in section 84(5)(c)(ii) is satisfied. The children are too young to express a view and I have had regard to that. No issue arises in relation the children's religious persuasion, racial origin or linguistic background. There is no other evidence or factor which would lead to the conclusion that it would be better not to make the permanence order or not to extinguish the parental responsibilities and rights of BM and CR. There is no extended family, for example, which could look after the children. Even if the children were not to be adopted, they would remain in care. In fact, all are likely to be adopted in the relatively near future. It is better for them that the order is made and that the petitioners have the responsibility of making decisions about their welfare in the period until adoption.

[84] The question of which arrangements for contact should be specified in a permanence order might seem logically to precede the issue of whether authority to adopt should be granted. But, in this case particularly, it seems to me that the issue of contact is better considered in the context of whether such adoption has been authorised and is likely to take place. So I look at that issue next.

(b) Authority to Adopt

[85] I am satisfied that each of the children has been placed for adoption and is likely to be adopted. On the basis of the evidence, and for the reasons, which I have just examined, I am of the opinion that both BM and CR are unable satisfactorily to discharge their parental responsibilities to the child and are likely to continue to be unable to do so. The condition in sections 83(1)(ii), (2)(c) and (3) is accordingly satisfied. It is not necessary to consider the alternative condition in sections 83(1)(ii), (2)(c) and (4) but, if I had required to do so, I would have been so satisfied for the additional reasons I now examine in relation to the need to promote and safeguard the welfare of each of the children throughout life and whether it is better to grant authority for each of the children to be adopted rather than not. In relation to that, there is the additional evidence about the change in the behaviour and development of all the children since they were taken into care. They are in settled adoptive placements where they are well cared for. The evidence was that all their physical and emotional needs are being met. Their carers are committed to adopting them and continuing to provide for their physical and emotional needs throughout their childhood. Although that was not accepted by CR, it was accepted by BM, even if she could not bring herself to consent to adoption. I did not, of course, have the opportunity of hearing directly from the prospective adopters, but the reports from Mrs Guthrie, the curator and reporting officer, were entirely supportive of the other evidence of the witnesses who continued to have contact with the children. And it was also supportive of the benefits of adoption for the children. It showed that they are in stable family units. That was not the case before and, given CR's history of a lack of commitment to many of his children and the transient nature of some of his previous relationships, would not necessarily be the case in the future had they remained with BM and CR. The likely effect of the making of an adoption order on each of the children will be that they will grow up in a much better environment, both physically and emotionally than would otherwise have been the case. The alternative to adoption would be for the children to remain in care. I heard little evidence about what that would mean in practical terms. I suppose it is possible that they might remain with the prospective adopters but they would not be truly part of the family unit. They might return to foster placements. That is unlikely to be better for them than a settled family home. And they would remain subject to decisions taken by the local authority or the children's hearing. Part of the right of a child to respect for his or her family life in terms of Article 8 is that decisions about that life are not made by the state. It is true that S was subject to a similar regime and has retained direct contact with CR which she said was valuable. It is really not possible to draw an analogy from that. I do not have sufficient information about the circumstance in which it happened or whether, if it had been possible, adoption might have been better for her.

[86] This is the most difficult of the issues in the case. Leaving to one side Mr Shankland's very narrow understanding of what indirect contact might mean, there was agreement among all the professional witnesses that it was important that the children had an awareness of their origins and that contact helped to promote that and the four benefits which I mention above. That was clearly demonstrated in the literature which was reviewed in the course of the evidence of Drs Robson and Woolfson. That review was both interesting and instructive but I am not sure that it is necessary for me to embark on a detailed analysis of it. Suffice to say that the Loxtercamp article seemed to me to be of limited value. Dr Woolfson correctly identified it as pejorative. Dr Robson accepted that it was challenging the existing consensus that contact, direct or indirect, was likely to be beneficial. It was based, primarily, on only three cases. What it did identify, and this was accepted by both Drs Robson and Woolfson, was the importance of honesty in what was said to children about neglect by birth parents and why they had come into care and been adopted. That was of relevance in the present case. CR did not accept the children had been neglected at all; or, at least, to the extent that intervention by the petitioners was justified or necessary. BM did accept that there had been neglect and accepted the consequence that the children would not be returning to live with her and would thrive better in other care.

[87] The Logan piece dealt more with the preparation of adoptive parents for the challenge which face to face contact brings. The background to the study was directly relevant to the circumstances of the present case because it very largely concentrated on children adopted from a background of care and parental neglect or abuse. The sample (96 cases), though, covered a wide range of situations and only 42% related to contact with parents rather than siblings or other relatives. The study concluded that agencies "were getting the message across to prospective adopters about the importance of contact for the child's wellbeing. However, insufficient attention was directed at helping adopters to anticipate their feelings towards birth relatives and their responses to the kinds of management issues which might arise after adoption." The study identified the importance of that if contact arrangements were to be successful. In the present case, as I have found in fact, there has been little, if any, preparation of the prospective adoptive parents. Indeed, on the balance of probabilities, they have been given the expectation that there would not be direct face to face contact. Whether that was a significant factor in their decision to proceed with the adoptive placements is, without evidence from them, impossible to say. But the inevitable consequence is that any decision about direct contact has to be taken in light of an apparently entrenched opposition to it happening at all. So, even Dr Woolfson, in his evidence, and Ms Hughes, in her submission, accepted that the preparation referred to in the Logan study would be a prerequisite of successful and beneficial direct contact in the present cases.

[88] Much time was taken up in examining differences of emphasis in the conclusions reached in the Neil and Triseliotis articles. They were, of course, different in character. Neil was based on a study and sought to draw conclusions from that. As a preliminary to discussing the methodology and results of the study there was a review of previous studies and articles and the generally accepted position which had resulted from these. Triseliotis was effectively a literature review (including the Neil study) and an attempt to describe the current consensus thinking. Neither concluded that direct face to face contact was the norm or that it would always be beneficial. Both agreed that a case by case approach, based on individual facts and circumstances, was required. In the course of her evidence Dr Robson appeared to suggest that the Neil study related to both direct and indirect contact. That is not the case except insofar as, in her review of previous work, she refers to studies of both forms of contact; and, in her conclusions, it is clear that the benefits of contact which Neil identifies and discusses could apply to both direct and indirect contact. My impression was that Dr Robson placed too little emphasis on the benefits of direct contact which the Neil study appears to show but Dr Woolfson, perhaps, accepted these benefits too readily. My other impression, listening to their evidence, was that Dr Robson may have been too readily influenced by what was likely to have happened in previous cases, where direct contact orders are very much the exception, but that Dr Woolfson may not have given sufficient weight to why that was so.

[89] The approach I take is this. The concentration has to be on the individual children and the factors of the individual case. That involves, first of all, examining whether the circumstances which would allow direct face to face contact to succeed are present. If they are, then it is necessary to examine the questions of whether such contact would be beneficial and safeguard and promote the welfare of the child during childhood and, very importantly in light of section 84(3) of the 2007 Act, whether direct contact, and an order to allow it, would be better for the child than some other form of contact. I am not satisfied that the circumstances for probable success are present in these cases. Firstly, the level of attachment between the children and BM and CR is mixed. I prefer the evidence of Dr Woolfson to that of Dr Robson that some level of attachment exists for L and K with BM. I do not accept his extension of that conclusion to R and A. Nor do I accept, for any of the children, that there is, to any significant extent, attachment with CR. R was too young to form any attachment before he was taken into care. There is no evidence that the attachment of A commented on by Dr Mitra is still present. A has not seen BM or CR for almost a year. Viewed objectively, the evidence of those who observed contact is consistent with the attachment which I have found in fact exists. That any attachment still existed at all is remarkable in light of Dr Robson's evidence that the level of contact promoted by the social work department, and sanctioned by the children's hearing, would be insufficient to enable it to be maintained. If her evidence is correct, and it was not suggested that it was not, and the social work department were aware of that, the almost inevitable conclusion which must be drawn is that the level of contact recommended in May 2011, and the withdrawal of contact in February 2012, was deliberate and with that consequence clearly in mind. The level of attachment, even for L, does not point to direct contact being better than indirect contact to safeguard and promote the children's welfare in their new lives with the adoptive family.

[90] Secondly, there is a mixed picture about the acceptance by BM and CR of the children moving on to new homes and acceptance that this was because of neglect. There was no evidence that CR accepted or understood either. My feeling is that BM accepted both. Of course, she would have preferred that her children had remained with her. It is simply unrealistic to expect otherwise but that does not mean that she did not want the adoptive placement to succeed. I think that she does. Similarly, in relation to the neglect, she did not accept everything which was said, but that is hardly surprising because not everything which was said was established. The important thing was that she said she would do nothing to disrupt the placement. She has not done that. She did not do it in relation to her two earlier children when they were adopted. I believed her and the reasonableness of that conclusion finds support in the Triseliotis article where he says (page 12) "It is expected that even those who oppose the adoption will, if awarded direct contact, use it responsibly". But BM remains living with CR and is clearly influenced by him. That cannot be ignored. Whatever he may have said about not seeking to influence BM or interfere, the history of their relationship suggests otherwise. The necessary acceptance by CR is completely lacking. For BM, at best, it is present but does not outweigh the issues of attachment and the attitude of the prospective adopters to the extent that direct contact would be better than indirect contact.

[91] Thirdly, and perhaps most significantly, there is the attitude of the prospective adopters. During the first phase of his evidence Mr Shankland said that both sets were firmly opposed to any direct contact. Both Drs Robson and Woolfson spoke to them. In both their reports that opposition was made clear. When, after an adjournment, Mr Shankland resumed his evidence it became clear that he had spoken to the prospective adoptive parents and discussed with them the possibility of direct contact. He said that they remained opposed but, reluctantly, would cooperate with any order made. Leaving to one side the appropriateness of what he had done (Ms Hughes, perhaps with good reason, was critical of that) it was really impossible for me to assess what that might mean or what their true views might be or what degree of cooperation either set would offer. I think, however, that I can safely conclude that both sets saw the prospect of direct contact as the sort of threat to the placement and "their" children which is discussed in the literature. Both Drs Robson and Woolfson were unaware of this apparent change of mind and expressed surprise that it had happened given the strength of the views which had been expressed to them. The importance of a willingness of adoptive parents to promote direct contact was stressed in the evidence of both Drs Robson and Woolfson and that evidence finds support in the literature. I cannot conclude that such willingness exists in the present case. The strong reluctance displayed points towards indirect contact being likely to be better for the children, their stability, their relationship with the adopters and their welfare than direct face to face contact

[92] In these circumstances it cannot be said that direct contact would be likely to succeed or to promote the welfare of the children or would be better for them. For two of the children (R and A) attachment cannot be said to exist. It is unlikely that A would attend. Any involvement of CR in direct contact would not be with the recognition of the future benefit of adoption or of the past neglect which led to it. He remains a significant influence on BM. The adoptive parents are opposed to direct contact, have not been prepared for it, did not imagine that it was likely to happen when they agreed to the adoptive placements and would, on the basis of the limited evidence of Mr Shankland, be unlikely to cooperate enthusiastically with it.

[93] Nor do I think that the proposal made by Ms Hughes that I should delay a decision for further information or investigation is in the best interests of the children. Firstly, I doubt if it would make a significant difference to the factors which have led to my decision against direct contact. Secondly it would prolong the uncertainty in a case which has already taken long enough.

[94] I should add that I was not asked to make a different decision in respect of any one child; and that was specifically confirmed by both Miss Coutts and Ms Hughes. I would have been reluctant to do so in any event. For one of the two boys or one of the two girls to go for direct contact and the other not would have been confusing. And the same might equally be said if the two boys were to go. The evidence was that the four children will see each other and will be aware of their sibling relationship. That will, no doubt, make them aware of the existence of their birth family and require explanation of their past in a way which might not be so immediately necessary if there were no direct contact at all with that previous life. Separate contact for any of them would be likely to lead to confusion.

[95] As to what order, if any, should be made, parties seemed to be agreed that I should make one. I also think that is better for the children. Any order which I make will only last until any subsequent adoption order is made. Then, the issue would require to be addressed in terms of the lifetime test in section 14(3). I have looked primarily at the childhood of the children but childhood is part of life. What is important, during their childhood and will promote their welfare, it seems to me, is that the birth parents have the opportunity of knowing something about how the children are developing during childhood and what sort of people they are becoming. That knowledge, though at a distance, is for the children's benefit. The paramount purpose of any form of contact is to benefit the child. Although sections 1 and 2 of the 1995 Act talk about parental rights and responsibilities, the rights only exist to enable the responsibilities to be fulfilled and the section 1(1)(c) right of contact reflects the child's right, protected by Article 9(3) of the United Nations Convention on the Rights of the Child, to maintain personal relations and direct contact with his or her parents. As they leave childhood there is every possibility that some of the children will want to explore their previous life and those who formed part of it. Both Drs Robson and Woolfson spoke of the "innate yearning" which drives that. The possibility was well documented in the literature examined. And it is part of normal experience. In the Triseliotis article the new dimension of the internet age and the greater ease which this allows in contacting people from anyone's past is referred to. Again, that is part of ordinary experience. This makes it all the more important, it seems to me, that indirect contact provides the birth parents with information about how the children are developing through childhood which will enable them best to deal with later direct contact if that were to occur. Properly and conscientiously carried out by adoptive parents or carers it will achieve the four benefits of contact agreed by Drs Robson and Woolfson. It looks forward to the lifetimes of the children as well as supporting their childhoods.

[96] The adoptive parents are not parties to these proceedings. I cannot, in my order, compel them to do anything. That will be possible only in the adoption proceedings. So, what I have done is to allow indirect contact by correspondence from BM and CR, addressed to the prospective adoptive parents (through the petitioners' social work department) twice each year in March and September. As the petitioners are parties to the proceedings I will order them to pass such correspondence to the prospective adoptive parents. I do that specifically in light of the evidence of Mr Shankland. It will be a matter for the prospective adoptive parents to decide how and when to impart whatever information the correspondence contains to the children. As the petitioners will now have vested in them the other parental rights and responsibilities I will also order them to provide written information about the welfare and development of the children to each of BM and CR at least twice a year and certainly in March and September. I have added an additional requirement on the petitioners to provide such information immediately after any adoption proceedings are commenced. That will ensure that BM and CR are aware of such proceedings and have an up to date picture of the children's lives at that time. I can only express the hope that very similar arrangements will be repeated in any adoption orders which are made without the need for a further lengthy exploration of the same issues discussed before me. That will require the good sense and cooperation of the birth parents and the prospective adoptive parents acting in the best interests of the children.

(d) Supervision Requirement

In these circumstances, compulsory measures of supervision are no longer necessary and I order that the supervision requirement in respect of each child should cease to have effect.

Postscript

[97] As I have noted above, Miss Coutts questioned whether proper procedures had been followed in relation to the removal of the children, whether rehabilitation had been considered, the level of contact allowed, whether that should have been stopped and the information given to the prospective adoptive parents. She correctly recognised that these were not a basis to refuse to grant the orders sought. I do not think it is appropriate for me to embark on a detailed examination of these issues although Mr Sharpe accepted that judgments such as this do provide an opportunity to examine wider issues. All I will say is this. June Holland, the safeguarder appointed by the children's hearing, clearly had reservations about the approach of the petitioners on some of the issues referred to by Miss Coutts. I agree with her. The care of the children by BM and CR was clearly bad enough to satisfy the threshold tests set out in section 52(2)(c) of the 1995 Act and so to open up consideration of whether compulsory measures of care were necessary. Why it took so long for the petitioners to refer the matter to the Reporter is not clear. The need for compulsory measures of care does not necessarily mean that removal from the family home is required. It is not necessary for a local authority to wait until that stage has been reached. A closer attention to the concerns of Emma Visca and others, and a more thorough approach when the first comprehensive assessment by Eileen Donnan was carried out, should have led to an earlier referral. Whether, in these circumstances, removal from the home would have been necessary, or whether other remedial steps and assistance to the family, might have prevented that will remain an open question. But I am left with the impression that the petitioners did not have in their minds what has been said repeatedly in the case law: cf. (Hale LJ in Re P (Children) (Placement Orders: Parental Consent) "that the aim should be to reunite the family when the circumstances allow that and the effort should be devoted to that end". I agree with June Holland that inadequate effort appears to have been devoted to that end either before or after the children were removed. The minutes of the Permanency Panel on 21 November 2011 (Production No. 3/83) are eloquent evidence of that. The section which is headed "Rehabilitation" records no discussion at all of that issue or any reasoned conclusion about why it had been excluded. It is simply a recital of the care and neglect issues which had caused the removal of the children. It is clear from other productions that the possibility of rehabilitation had been completely excluded before any referral to the Reporter, and perhaps as early as the beginning of 2011.

[98] On the issue of contact it is clear that no consideration was given to any need to have regard to whatever attachment existed between the children and BM and CR. The level of contact fixed after the children were taken into care was (the evidence of Dr Robson) quite insufficient to maintain that. The decision to remove contact in February 2011 (certainly in respect of L and R) is difficult to understand. Contact was not causing any difficulty or confusion for either boy. Those supervising it thought that it should have continued. The subsequent observed contact showed that fears about its continued adverse effect were groundless. It is difficult to avoid the conclusion that the decision was driven by the sort of policy approach, without regard for the individual interests of the children, which was criticised by Sheriff Poole in H v Petrie 2000 SLT (Sh Ct)) to which Miss Coutts referred.

[99] Mr Sharpe attempted to shelter the role of the petitioners in these decisions by the "checks and balances" provided by the children's hearing system. That will not do. In the present case the hearing in February 2011 proceeded on the advice of the petitioners. That was contained in Production Nos. 3/50 to 3/53. It was striking that the initial draft of this, prepared by Mr Shankland, asked the hearing to give "strong consideration to stopping contact". This was supplemented by an addendum prepared by two other social workers where stress was laid on the potential, during contact, for birth parents to disrupt and destabilise permanent placements. There is no mention of the fact that neither BM nor CR had ever done so. Many of the reference works quoted appear to be relevant to post adoption or post permanence order contact rather than contact before such decisions have been made by the court. It is not difficult to see the basis on which a successful appeal against the hearing's decision could have been made.

[100] I will also repeat what I said in Application by LD for the Adoption of the Child CH. If decisions of a local authority or a children's hearing about contact are not felt by parents to be reasonable or justified, or in the best interests of their children, an appeal to the sheriff is available. The sheriff has a wide discretion in such appeals including the power to examine those who have complied or prepared the reports on which the decision of the hearing is based. The time for review of such decisions is not in the context of proceedings such as the present, months or years after the decisions have been taken and, often, in different factual circumstances. It is when the decisions are taken. Otherwise, the effect of these decisions - the disappearance or weakening of attachment, the move towards permanence and away from rehabilitation - is consolidated by the passage of time. Parents, and their advisers, who feel that such decisions are unreasonable or unjustified or not in the best interests of their children, must be vigilant to seek their review immediately - either by appeal to the court or by seeking a review by the children's hearing. In the present cases that was not done.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> APPLICATION FOR A PERMANENCE ORDER WITH AUTHORITY TO ADOPT IN RELATION TO THE CHILD L [2013] ScotSC 65 (22 August 2013) URL: http://www.bailii.org/scot/cases/ScotSC/2013/65.html Cite as: [2013] ScotSC 65

Scottish Sheriff Court Decisions