K.A.H. (A Child) [2011] ScotSC 3 (20 January 2011)

SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON

COURT REFERENCE: PO6/10

JUDGMENT OF SHERIFF PETER GILLAM

In the Petition of

EAST LOTHIAN COUNCIL

Incorporated under the Local Government etc. (Scotland) Act 1994

Having its principal place of business at

John Muir House, Haddington, East Lothian, EH41 3HA

PETITIONER

For a Permanence Order under Section 80 of the Adoption and Children (Scotland) Act 2007

In respect of the child KAH

HADDINGTON JANUARY 2011

The Sheriff, having resumed consideration of the cause, Finds in fact as follows:-

1. The petitioner is as designed in the instance. It is an adoption agency. It has requested authority for adoption in this petition.

2. The child to which this Petition relates (hereinafter referred to "K") was born on 9 April 2009. She is female. Her birth parents (hereinafter referred to as "R" (natural father) and "M" (natural mother)) have parental rights and responsibilities in respect of K. They birth certificate of K contains details of R as birth father of K.

3. This court has jurisdiction. R is 30 years old. M is 31 years old. They have been in a relationship for the past 2 years. They live together in social housing rented accommodation. They are not married.

4. R experienced a very disturbed childhood. He suffered extreme sexual abuse and was received into local authority care. He lived in a variety of foster placements and children's residential units. When he was 17 years old R was placed in a number of supported tenancies, he eventually lost these tenancies due to alcohol misuse. He then obtained his own tenancy in Edinburgh where he lived for the following 8 years. He gave up his tenancy in 2008 to reside with M. This is R's first significant relationship. R has had several periods of employment but has not had any employment for the past 3 years. He has been diagnosed with complex partial epilepsy and with a behaviour disorder and an unspecified anxiety disorder. He attended his General Practitioner for assistance with anger management and has reported to have felt the benefit from counselling to which he was referred. R does not have a disability or learning difficulty.

5. R is reported to have been drinking alcohol at the age of 15 to 16 years old and attributed his convictions up to 1998 to his alcohol misuse. He has a problem with the misuse of alcohol and has been referred for counselling.

6. R has 9 adult criminal convictions. The first 4 were in 1997 and 1998 and were all drink related. He did not come to the attention of the court again until 2008. He was convicted of breach of the peace and vandalism in May 2008. He is presently on 2 Probation Orders which he has recently breached. He is now on a Community Service Order for the breach. He is assessed by the Criminal Justice Social Work Department as being of high risk of re-offending and presenting a high risk of harm... Although he has been making progress towards addressing his difficulties, he would need to demonstrate a much longer period of stability in order to reduce his risk of harm to his partner as well as to the wider community.

7. M is the mother of 5 children including K. She has a learning disability. She has been assessed as having an IQ of 68. She found life difficult at school and left to start a course at Stevenson College in Edinburgh. While she was there she met the brother of R and had 2 children with him and 2 subsequent children where the paternity could either be R's brother (hereinafter referred to as "D") or other men with whom she had relationships. The relationship with D was volatile and abusive, and on and off for years. D was violent towards M.

8. The social work department had been involved with M over the last 12 years in relation to all 4 of her older children. They were all received into care, became the subject of Supervision Requirements, and subsequently adopted. The youngest child was adopted in April 2009.

9. The birth mother's history is of a very vulnerable young woman who seeks attention where she can find it, sometimes at all cost to her physical and emotional welfare. She is easily drawn to males who show her attention and affection. The birth mother, by her own admission, admits to enjoying the attention that pregnancy brings. She becomes pregnant intentionally. She is presently pregnant with her sixth child with the birth due to take place in February 2011. R is the father of this child.

10. M's pregnancy with her fifth child was referred to the social work department on 1 September 2008 by her General Practitioner as she was aware of the parenting history. It was agreed that the child would go home after birth and a full assessment of parenting capacity would be carried out to determine the capacity of M and R as a couple and also as single parents should they decide to separate. M indicated that she was not sure who the child's father was. She admitted to having a sexual relationship with both R and D in a short space of time so that she was not sure of paternity. DNA testing was undertaken by R's solicitor and the results confirmed that R is K's father.

11. M and R were supported by a full team of assistance from health, children services, adult services and Children First. A parenting assessment was carried out between January 2009 and 31 October 2009. The previous history of M was acknowledged, however old reports and assessments were not used. It was over 5 years since M had had care of a child and the whole assessment began on a "clean slate" basis

12. The assessment tool used was one specifically developed by Dr Sue McGaw following 20 years experience with working with parents with a learning difficulty. An assessment is separated into 3 sections. Firstly, there is a diagnostic assessment of the birth mother (clinical psychology, speech and language therapy assessments). Secondly, child profile - e.g. skills relevant to child care tasks. Thirdly, adult profile - e.g. skills in managing at home, finances, personal relationships reports. This assessment forms number 2/5/328(a) to 2/5/372 of process.

13. The assessment concluded that as a couple M and R were not safe parents. It also concluded that M, in a structured environment, which is highly controlled, could meet K's needs. However, there were concerns about the change in M's parenting when she has a child's needs to prioritise. M habitually chooses dominant men who are not without their own emotional difficulties. Her personal vulnerability prevents her from making safe choices e.g. her need for a personal relationship at all costs is a risk to K. M has consistently communicated her need for a relationship and any kind of attention is acceptable. This puts M had direct risk of physical injury. It also concluded that M would not have a capacity to care for a child unless she:-

(a) chooses partners who are not at risk to her or her child;

(b) addresses her previous sexual abuse and gains insight into her vulnerability;

(d) addresses her reaction to conflict and learns to manage her stress;

(e) accepts support to manage her finances;

(f) accepts support to sort out housing emergencies;

(g) accepts support to meet the nutritional needs of a child;

(h) accepts support to integrate into her local community;

(i) understands the concept of risk to herself and to her child;

(j) understands how to deal with risky situations and give evidence to put theory into practice.

14. An initial child protection case conference was held on 18 February 2009. It recommended registration of the unborn child on the Child Protection Register. The week before K was born the relationship between M and R was showing difficulties. M shouted in the street for R to leave her and locked herself in the bathroom. Workers offered advice to R as to how to cope with M's distress and mood swings offering them practical financial and emotional support. M and R had arranged to assume the tenancy of new and better accommodation. They were due to move in on the day the baby was due to be born but the move occurred shortly afterwards. The removal was not well timed .Assistance was provided by social work personnel.

15. K was born on 9 April 2009, normal delivery, good weight with no complications. A visiting rota of twice daily visits was set up to help monitor how M and R were doing and to provide assistance. K was discharged home on 14 April 2009. Neither M nor R had sufficient money to heat their house and assistance was provided. For the first 4 weeks progress was good with the child thriving and both M and R responding to the support offered. In May 2009 arguments between M and R became frequent with violent outbursts from R. Bruising on the upper arm of M was noted. Arguments about the child's paternity and money took place. R became resistant to support and demonstrated poor insight into the child's needs. He shouted at the child at night time to "shut the fuck up" and shook her Moses basket and pushed a dummy into her mouth. He also complained loudly about her soiled nappies being "disgusting". He felt her poor head control was "a problem". M became stressed by R's behaviour. M began to take seizures and faints. The hospital assessed these as vaso-vagal attacks induced by stress.

16. By the time K was 6 weeks old M and R were arguing regularly on a daily basis. The arguments were about money and M having had children removed from her care. R was also intolerant with regard to K's sleeping routine. Both parents were given advice as to how to cope with the difficulties of caring for a young child but this did not appear to be taken on board and acted upon by the parents. R was offered support from an organisation called "Dad's work" which specializes in working with men who are adapting to their new roles and responsibilities. He was offered one to one support. R refused this stating it was "a load of crap".

17. Because of the concerns regarding the difficulties in the relationship between M and R and the risk this caused for K, K's social worker, Alexander Christiansen arranged and transported M and K to M's mother's house to stay overnight. The maternal grandmother accommodated M and K for 4 nights and then withdrew the support. On 11 June 2009 the social work department arranged for M and K to stay overnight with a foster carer. There was no plan to accommodate K away from M. R was offered support to find his own accommodation which he refused saying that he would stay with his mother in Penicuik.

18. A core group meeting on 15 June 2009 discussed the difficulties and arrangements. R became angry and refused to speak at the meeting and M passed out several times in the social work office. M was taken to hospital and a carer arranged to look after K. M was taken home at 8.30pm and R was waiting for her. He began an argument with M and the social worker accompanying her. He did not enquire about K's welfare. He was very angry. As a result the social worker returned M to the carer's house so that she could be with K.

19. On the following day 16 June 2009 M returned to her home. R was waiting and social workers expressed their concerns about R's temper and the impact on M and K. R verbally abused M and the workers and threw K's changing bag across the room, knocking a Moses basket off its stand. He shouted "you are a fucking joke" at M and kicked in the kitchen door made of reinforced glass. Shards of glass fell near K. One of the social workers picked up K to protect her. He threatened to snap the neck of Alexandra Christiansen and threatened to kill himself if M left him. It was a harrowing experience for all present. R then calmed down and indicated that he would attend the Dad's group. Later that day M agreed to K being accommodated. Supervised contact for K with M was arranged for four hours every day at the carer's home.

20. M returned to the family home where R was waiting. M was offered accommodation in a woman's aid hostel but declined and said she would remain with R. R has not had any contact with K since the 16 June 2009.He agreed he was a risk to K because of his temper.

21. On 7 July 2009 there was a meeting at the Social Work Department at East Lothian Council Children's and Families Office at Randall House in Macmerry. He shouted "all women are fucking bitches". He threatened to kill staff. He upturned a large table and refused to let staff leave the room. The police were called and R was arrested. He subsequently pled guilty to criminal charges arising out of this incident. He was bailed with conditions not to approach the Social Work Department Area Office and not to communicate with the child's social worker, a Children First worker and a learning disability nurse. R has threatened to kill social workers on several occasions.

22. On 7 July M failed to react to the behaviour of R and placed herself next to R. He then pushed her and told her to shut up and swore at her. Following K's accommodation M and R continued to argue, with M being seen with a series of facial and upper body bruising. On 8 July contact for K with M was reduced to two hours per day. M and R arranged to be married on 20 July 2009 and when M booked the wedding it was noted by the staff at the Registrar Office that she had bruising on her face. The wedding was subsequently cancelled.

23. On 15 July 2009 a meeting was arranged with M, Alexandra Christiansen, Social Work Manager Diane French and M's solicitor. M said that she and R were going to separate to enable R to be "fixed" by going to anger management classes and returning to bring up the child in 6 months time. On 17 July a vulnerable adults case conference took place. M told the meeting she was not at risk of harm. from R.

24. On 18 August 2009 there was an incident at M's house when neighbours believed that M was being assaulted by R and the police were called. Both M and R denied they were fighting and that an assault had taken place. However, it was clear that M and R were still associating together despite M's stated intention to separate from R.

25. On 26 September 2009 M and R were drinking in the Wemyss Hotel in Port Seton. R was drunk and aimed a kick at M but missed. R also assaulted 2 other witnesses in the same incident.

26. On 1 January 2010 the police were called out to an incident in Gorebridge at D's house. There had been a fight between R and D. M had been present at the time.

27. M became pregnant again to R but suffered a miscarriage in March 2010. R had accompanied M to the hospital when she suffered a miscarriage. M informed the social work department that she had had no other contact with R, apart from this occasion. This was a lie.

28. On 10 March 2010, the day after M suffered a miscarriage M and R went out for a meal and drank alcohol. On this occasion R tried to drag M off a bus by pulling her by the hair.

29. On 10 May 2010 R and D fought. They were drinking and R headbutted D. M was caught in the middle of the fight and was punched accidentally in the face by R.

30. On 14 May 2010 R disclosed to his Probation Social Worker that he had been with M for the whole time and that the only time that they had not been together was when R had been kept in police custody. R admitted lying to his Probation Social Worker.

31. On 2 July 2010 M and R had been out celebrating. They had both been drinking. R became agitated and kicked the panel in the back of the taxi. When the taxi driver asked R to stop, R threatened the taxi driver, and then, whilst the taxi was in motion, he grabbed the taxi driver by the neck. He kicked in the glass partition of the taxi breaking it. M passed out in the back of the taxi. R was arrested and was unruly at the police station. He was detained overnight and charged with a assault, breach of the peace and criminal damage. He subsequently pled guilty to these charges.

32. R has acknowledged on several occasions, the most recent, being on 20 October 2010 that he was a risk to K. He now believes that he is not a risk any more. He is the of the view that he has now understood his lack of control and can manage his temper by breathing exercises and walking away from situations when he can feel he is in danger of losing of his temper and acting in a violent way. He is of the view that K should be able to return to the care of himself and M in one or 2 years time once he completes his anger management course. He accepts that he has behaved in an appalling way in the past and failed to co-operate with all the assistance which was offered to him. He accepts that he has failed to fulfill satisfactorily his parental rights and duties. In the event of K not being returned to his care, he would wish letterbox contact.

33. R has been working with his criminal justice social worker and is attending an anger management course and has attended a dad's work class. It is too early to tell whether these attendances have improved R's anger management and parenting capacity.

34. K has been with her present carers since she was accommodated. It is in K's best interests to be moved from their care in the near future as she has grown attached to them and they are not able to provide permanent care for her. K requires a stable permanent family unit as soon as possible. R and M are unable to provide this now. They may never be able to provide this. Prospective adopters have been identified. K is too young to express a view on the matter.

35. K has had supervised contact with M on a regular basis since she was accommodated. K enjoys the contact which is well attended by M who behaves appropriately. There is a bond between K and M albeit limited by the amount of contact they have had with each other.

36. K is presently on a supervision requirement . She is in need of compulsory measures of care.

Findings in Fact in Law:-

1. Having regard to the need to safeguard and promote the health, development and welfare of K and provide direction and guidance to, and control of K, appropriate to her development, and legally represent K, and regulate residence of K throughout childhood, a Permanency Order should be made.

2. It is better for K that the Order be made than it should not be.

3. That the consent of M and R to the authority to adopt should be dispensed with as they have been unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and are likely to continue to be unable to do so and the need to safeguard and promote the welfare of the child throughout life requires this.

4. M and R do have a right to have K reside with them but at the present time that right is not exercisable because K is subject to a Supervision Requirement requiring her to live with foster carers. Should that situation not have existed it is likely to be seriously detrimental to the welfare of K for her to reside with M and R because they are unable satisfactorily to (i) discharge their parental rights and responsibilities or (ii) exercise those rights and are likely to continue to be unable to do so.

5. That M and R should have the right to be provided by the Petitioner with written information about the welfare and development of K along with an up-to-date photograph of her on each birthday.

6. The parental rights and responsibilities of M and R should be extinguished apart from the right to contact as above.

7. There being no need for compulsory measures of care the Supervision Order to which K is subject should be terminated.

Interlocutor

HADDINGTON JANUARY 2011

The Sheriff, therefore Grants the prayer of the Petition as amended and Makes a Permanence Order in favour of the Petitioner under Section 80 of the Adoption and Children (Scotland) Act 2007, in relation to the child K born on 9 April 2009 with the following provisions:-

1. Vests the Petitioner

(a) with the parental responsibility to provide guidance to K in a manner appropriate to the stage of her development until she reaches the age of 18 and;

(b) with the parental right to regulate the K's residence until she reaches the age of 16, all in terms of Section 81 of the Adoption and Children (Scotland) Act 2007;

2. Vests the Petitioner

(a) with the parental responsibility to safeguard and promote K's health, development and welfare, and to provide direction in a manner appropriate to the stage and development of K and to act as her legal representative until she reaches the age of 16; and

(b) with the parental right to control direct or guide K's upbringing in a manner appropriate to the stage of development of K and to act as her legal representative until she reaches the age of 16;

3. Extinguishes the parental rights and parental responsibilities held by R and M apart from as below.

4. Allows contact on an annual basis on K's birthday by the Petitioner providing to R and M up-to-date written information about the development of K together with an updated photograph of her all in terms of Section 82 of the Adoption and Children (Scotland) Act 2007;

5. Dispenses with the consent of R and M, on the ground that they are unable to satisfactorily(i)discharge their parental responsibilities, or(ii) exercise those rights and is likely to continue to do so Grants authority for K to be adopted all in terms of Section 83 of the Adoption and Children (Scotland) Act 2007; and

6. Revokes the Supervision requirement in respect of K in terms of Section 89(1)(b) of the Adoption and Children (Scotland) Act 2007;

7. Makes no award of expenses due to or by either party.

Sheriff of Lothian and Borders at Haddington

Procedural History

This Petition was lodged on 2 July 2010. A Curator and Reporting Officer was appointed and her reports were lodged on 27 August 2010. At the beginning of November 2010 an application was lodged under Section 95 of the Adoption and Children (Scotland) Act 2007 (hereinafter referred to as "the Act"). This was done with a view to the Supervision Requirement being varied to change the residence of K to reside with prospective adoptive parents. This was opposed by R and M. I took the view that as the proof in this case was due to take place in December it would not be in the interest of K to move her. If the decision were not to make a Permanence Order than K would have been moved unnecessarily. I was aware of the difficulty being caused to K by becoming attached to her present carers with whom she would not have a permanent home. However, in view of the short period of time from then until a decision being made I thought it better for her to remain in her present home until this matter was decided. The case was not therefore referred to the Children's hearing Reporter in terms of Section 96(3) of the Act. After sundry procedure the case proceeded to proof beginning on 8 December 2010. Evidence was led over 8 days and submissions were made by the parties'solicitors on 21 December 2010. Thereafter I took the case to Avizandum. A Joint Minute was entered into by the parties agreeing uncontroversial facts. In addition Affidavits were lodged from various witnesses. This considerably shortened the duration of the proof. Voluminous social work records were lodged as productions. Evidence was led from 12 witnesses by the Petitioner. M did not give evidence. R did give evidence.

Statutory Provisions

This is an application by the local authority for a Permanence Order under Section 80 of the Adoption and Children (Scotland) Act 2007. Permanence Orders were created by this piece of legislation. The purpose was to create a statutory measure to provide for children for whom there was no reasonable prospect of a return home, and who were going to spend the rest of their childhood accommodated by the local authority, or be candidates for adoption. In this case the Petitioner asked the Court to grant the Permanence Order consisting of the mandatory provision vesting the responsibility and right for guidance and residence in the local authority. In addition, ancillary provisions extinguishing the parental rights and responsibilities of the parents, and specifying any arrangement for contact, are also sought. Other ancillary provisions sought are the responsibility to provide direction and legal representation, together with a right to control and direct the child's upbringing and representation. In considering whether to make a permanence order with the above ancillary provisions, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. Before making the Order, the Court must be satisfied that where there is a person with a right to have the child residing with them, the child's residence is, or is likely to be, detrimental to the welfare of the child. (S.84 of the Act).

Finally, the petitioner seeks an ancillary provision to include authority for the child to be adopted.

Section 83(1) of the Act sets out the conditions which require to be me met for a Permanence Order to include authority for the child to be adopted. The first condition is that the local authority has requested the Permanence Order include provision granting authority for the child to be adopted. (Section 83(1)(a)). The second condition is that the child has been, or is likely to be placed for adoption. (Section 83(1)(b)). The third condition is that each parent or guardian either consents to the adoption or consent is dispensed with on one of the grounds mentioned in the Act. (Section 83(1)(c)). Finally the fourth condition is 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. (Section 83(1)(d)).

When coming to a decision relating to the adoption of the child the Court has to have regard to Section 14(2) (3) and (4). These are as follows:-

Section 14(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.

In addition the Adoption Agency has obligations under Sub-Sections 5,6 and 7 to obtain the views of the parents and guardians and other relatives of the child, to consider, before making arrangement for the adoption of a child whether adopting is likely bet to meet the needs of the child or whether there is some better practical alternative. If the Agency conclude there is an alternative it must not make arrangements for the adoption of the child.

The grounds for dispensation of consent of the parents are contained in Section 83(2) of the Act. In this particular case the ground that is relied upon is contained in Sub-Section 3. This states that to dispense with the consent of the parent the Court must be of the opinion that the parents are unable satisfactorily to (i) discharge their parental responsibilities or (ii) exercise their parental rights and are likely to continue to be unable to do so. It does not state for how long this state of affairs is likely to be continued.

If that ground of dispensation is not made out then the Court can dispense with the agreement of the parents if the welfare of the child otherwise requires the consent to be dispensed with.

Finally, Section 89 of the Act provides for the revocation of any supervision requirement (1) Sub-Section (2) applies where -

(a) a child in respect of whom a Permanence Order is to be made is subject to a supervision requirement and (b) the appropriate Court is satisfied that were it to make a Permanence Order in respect of a child, compulsory measures of supervision in respect of the child would no longer be necessary;

(2) the Court must make an Order providing that on the marking of a Permanence Order the supervision requirement ceases to have effect.

It will be seen therefore that essentially the court has three main decisions to make. The first is whether a permanence order with mandatory provisions should be made. In so doing the court must have regard to the need to promote and safeguard the welfare of K throughout her childhood.(s.84(4)). The same test applies in deciding any other ancillary provision, apart from authority to adopt.

The second decision is whether there are grounds to dispense with the agreement of M and R (s. 83(2)). This is a question of fact as to whether these grounds exist.

The third decision only arises if the Court has decided that grounds to dispense do exist. In that event S.14 comes into play. In that case the Court must have regard to all the circumstances, in particular the circumstances mentioned in S.14, and must have regard to the need to safeguard and promote the welfare of K throughout her life before making the decision to grant the ancillary provision relating to adoption.

Although the paramount consideration in decisions one and three are different, it follows that if a Court makes a decision in number three (throughout life) it will necessarily include a decision in number one (throughout childhood) as childhood is part of life, and cannot be separated from it.

It also follows that if a Court makes a decision that an ancillary provision leading to adoption is required to safeguard and promote the welfare of K throughout her life, then it is, or is likely to be, seriously detrimental to the welfare of K if a Permanency Order was not made.

The Petitioner's Submission

Mr. Campbell submitted that both R and M were unable satisfactorily to discharge their parental responsibilities or parental rights or exercise those rights and are likely to continue to be unable to do so. He submitted that if that ground of dispensation with consent was not established by the evidence, then the welfare of the child required their consent to be dispensed with in terms of Section 83(2)(3). He also submitted that K's residence with R and M was likely to be seriously detrimental to her welfare.

Submission on behalf of R

Mr. Low, on behalf of R, submitted that the parenting capacity assessment is fatally flawed. There were 2 parts to his submission.

The first part of his submission was that the team which was assembled to carry out the assessment did not include anyone with any expertise in dealing with men with R's particular problems. He submitted that a forensic risk assessment of R should have been done. The second part of his argument was that Miss Christiansen, who was the social worker who led the assessment team, should not have continued in that capacity after the incidents on the 16 June and 7 July when she was threatened by M and witnessed 2 very traumatic incidents. The thrust of this part of the argument was that she was unable to be objective after her personal safety had been compromised. In support of his argument Mr. Low made reference to various parts of Miss Christiansen's affidavit which he stated were different from her contemporaneous notes. He submitted that this illustrated a lack of objectivity on her part and painted a bleaker picture of R then was accurate.

Finally, Mr. Low submitted that R and M had never been properly assessed as a couple, and that R had never had any individual psychological assessment regarding his suitability as a parent for K.

Submission on behalf of M

Mrs. Corsar, on behalf of M, invited the Court to refuse the application. She submitted that M had demonstrated that she could satisfactorily parent K. She submitted that it would not be seriously detrimental to K's welfare for her to reside with M. She submitted that, despite her learning disability, she had remained in contact with K. She submitted that she does not abuse alcohol or drugs. She submitted that she had benefited from her experience with her other children and although she is vulnerable, she does have other strengths which would equip her in looking after K. She submitted that the statutory test for a Permanence Order had not been made out by the evidence.

Decision

The witnesses led by the Petitioner were believed by me. It was accepted by R, and by me, that the social work department personnel and other professionals were genuine in their efforts to try and find a way which would enable K to live with her parents. The social work department obviously had concerns because of the previous history of children being born to M. They had every right to be concerned and this was accepted by R. However, they did make genuine efforts to start with "a clean slate". They assembled a wide variety of personnel putting in an enormous amount of support to both parents. They were sensitive to the difficulties presented by M's learning difficulties and R's anger problems and behaviour. They tried to respect their independence but at the same time provide sufficient assistance to enable them to bring up K safely and successfully on their own. From the date of birth until towards the middle or end of May 2009, everything seemed to be going well. However, social pressures and their own personal difficulties began to take control of the parents. The move to better accommodation, although laudable, was not well timed. M had already given birth to 4 children previously. She was experienced with babies and could cope on her own without any pressure. However, once she was subjected to outside pressures she was unable to prioritise K's needs.

She had to cope with the moving of home. She had to cope with R's lack of experience with caring for a baby. She had to cope with financial pressures. She had to cope with R's lack of control of his anger and consequent appalling behaviour.

When this happened, she was unable to cope. Her health suffered. She began fainting. She was faced with a choice between K and R. She chose R.

The difficulties and appalling behaviour of R are highlighted in the findings in fact and in the documentary evidence which was produced and accepted by the parties as being accurate. R had never experienced being a father before. He was unable to control his temper. He was controlling of M and upset by the dubiety regarding K's paternity. He responded with violence. He acted in a way which caused a risk of harm to K. His use of alcohol exacerbated his difficulties.

Despite the early promising start and the enormous support offered by the social work department and other agencies, the risk to K became too great. R himself admitted that he thought the social work department did not take K into care early enough. They obviously considered matters and tried to keep K with her parents for as long as possible until the risk to her safety by R's violence and M's inability to cope with pressures and minimise the risk to K, became too much. The parental assessment was carried out. It was a lengthy and thorough piece of work. R, in his evidence, accepted the findings of the assessment. In the face of conclusions of the assessment, the decision by the social work department permanency panel to proceed with an application for a permanency order with an ancillary provision of adoption, was an understandable one.

The assessment was completed by the end of December 2009. The outcome of the assessment was communicated to M at that time. However, the final version of the report was not signed off until March 2010 due to the number of people involved and the necessity to have everyone agree it and sign it. Nothing changed between December 2009 and the time of the signature in March 2010. In fact not a lot has changed very much since then. There have been incidents when R has been unable to control his temper and, after taking alcohol, has committed further acts of violence. As recently as October 2010 R admitted to the children's panel that he felt K was still at risk in his care. He explained this in evidence by saying that he required to be consistent, having acknowledged the same situation on several occasions previously.

With regard to the criticism of the assessment made on behalf of R by Mr Low and supported by Mrs Corsar on behalf of M, I do not accept that the assessment is fatally flawed. Although there was no forensic assessment carried by the assessment team, R was subject to supervision by the Criminal Justice Team of the Social Work Department. They have continually worked with him and assessed him. Indeed, there was evidence from M's criminal justice worker about the work and progress being made by him with R. As far as the lack of objectivity alleged of Miss Christiansen, I did not detect the presence of a lack of objectivity either in her contribution to the assessment or in the way she gave her evidence. She impressed me as having made a genuine attempt to try and assist M and R to care for K in what turned out to be very difficult circumstances. It was understandable that she withdrew from involvement with R after he displayed violence in her presence and made threats to her. It would have been difficult for any social worker to work with R. It is a credit to his present criminal justice worker that he has been able to work with R in a constructive and safe way. Miss Christiansen was K's social worker and her priority lay with her. She needed to continue with the assessment to fulfil that responsibility and she did that. Although she did not continue to work directly with R, she did have information on him from other sources and was able to use this information in completing the assessment, which, as will be seen, had contributions from many people from different backgrounds.

R has attended a course on anger management and alcohol counselling. He has also attended a Dad's work class. . He has shown a willingness to understand his situation with a view to controlling his temper and reducing the risk to K. I believed what he said in his evidence. He was frank and straightforward in what he said. He accepted his behaviour was appalling. He managed to control himself in Court throughout the lengthy proceedings. He obviously found this difficult at times. His relationship with M has endured despite their problems.

However, K will be 2 years old at the beginning of April. R accepts that it will be a year or two before he can hope to be in a position to control his temper to such an extent that it would be safe for K to return to him. Having regard to the past history of R, it is too long to wait for K. She has spent most of her life with her present carers. She requires to move to a permanent family as soon as possible.. It is not in K's best interest to remain where she is. It will be seriously detrimental to her welfare for that situation to continue. She cannot be returned to M and R at present. In my view, M and R have been unable satisfactorily to discharge their parental responsibilities and exercise those rights. This is likely to continue to be the situation for some time to come. For how long it will continue it is impossible to predict. It might never end. M on her own, might have been able to discharge her parental responsibilities and exercise her parental rights. However, her situation is very much intertwined with R. Her past history of associations and dependency upon males such as R cannot be ignored. She has made her choice. It may be the right choice for her, but it is not the right choice for K. She cannot protect K from possible harm and a choice has to be made between K and R. M chooses R. The added complication here is of course that M is expecting another child due to be born in February. That only adds further pressure to R and M.

In these circumstances, I have decided to grant the Permanence Order as craved in the amended Petition. In so doing, I am aware that this will mean a break in K's relationship with R and M, her birth parents. This is a great loss to any child. It is difficult for R and M, especially M who has retained contact with K. However for the reasons outlined above, I believe a Permanence Order should be made to safeguard and promote the welfare of K throughout her childhood. I have taken into account the conditions and considerations contained in S.84 of the Act. I shall grant the mandatory provision extinguishing the parental responsibilities and rights of R and M . I shall make no order for contact apart from letterbox contact. I believe a clean break should occur. There are no special circumstances which would make further contact for K with R and M to be appropriate. Contact at present is supervised with M and prohibited with R. In view of R's difficulties and M's relationship with R, I do not consider contact would be beneficial to K and might well be detrimental to her stability in any adoptive family. No doubt if K wishes to contact her birth family in the fullness of time the letterbox contact will enable her to do so. I have also decided to grant the ancillary provisions relating to adoption. In order to do so, I have dispensed with the agreement of both R and M in terms of S83(3) of the Act. I have taken into account the need to promote and safeguard the welfare of K throughout life. I have also taken into account the other provisions of S14 of the Act. In particular, I have had regard to the value of a stable family unit in K's development, and the likely effect on K throughout her life.

If I were to be mistaken in my view that R and M have been unable to satisfactorily discharge their parental responsibilities or exercise their parental rights and are likely to continue to do so then I would be of the view that the welfare of K required the consent of R and M to be dispensed with for the reasons outlined above.

It was agreed between the parties that there would be a finding of no expenses due to or by.

Sheriff of Lothian and Borders at Haddington

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> K.A.H. (A Child) [2011] ScotSC 3 (20 January 2011) URL: http://www.bailii.org/scot/cases/ScotSC/2011/3.html Cite as: [2011] ScotSC 3

Scottish Sheriff Court Decisions