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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 101

 

AD30/15, AD31/15, AD32/15, AD33/15

OPINION OF LORD BRAILSFORD

In the petitions

PERTH AND KINROSS COUNCIL

Petitioner

for

(1) A Permanence Order in terms of the Adoption and Children (Scotland) Act 2007, section 80 in respect of a child RSH and (2) Permanence Orders with authority to adopt in terms of the Adoption and Children (Scotland) Act 2007, in respect of children, CMH, MRH and AJH

 

Petitioner:  Loudon;  Digby Brown LLP

First Respondent:  Sharpe; Balfour & Manson LLP

Second Respondent:  Cartwright;  Drummond Miller LLP

14 July 2017

[1]        These are four petitions in which applications are made in respect of sibling children under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).  The four children are RSH who was born on 14 June 2005, CMH who was born on 26 May 2009, MRH who was born on 21 May 2011 and AJH who was born on 7 January 2013.  In relation to RSH in addition to the mandatory provisions set forth in the Act ancillary provisions are sought as follows:  (a) vesting in the petitioners in respect of the said child the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the Children (Scotland) Act 1995 (“the 1995 Act”) and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act;  (b) extinguishing in relation to the said child the parental responsibilities mentioned in section 1(1)(a), and (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a), (b) and (d) of the 2007 Act in respect of both the mother and the father of the child;  (c) granting an order that there shall be no direct or indirect contact between the said child and the parents of the child;  and to terminate the child’s Compulsory Supervision Order.  In respect of the children CMH, MRH and AJH in addition to the mandatory provisions ancillary provisions were sought as follows:  (a) vesting in the petitioners in relation to the children the parental responsibilities mentioned in section 1(1)(a), and (b)(i) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act, all in terms of section 82(1)(a) of the 2007 Act;  (b) extinguishing in relation to the children, the parental responsibilities mentioned in section 1(1)(a), in (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a), in (b) and (d) of the 1995 Act all in terms of section 82(1)(c) and (d) of the 2007 Act in respect of both the mother and the father of the children;  specifying that there should be no direct or indirect contact between the children and the mother and the father and granting authority for the children to be adopted.  The mother of each of the four children is LWAH.  The father of each of the four children is RRH.  These persons were served with the petitions and compeered as the first and second respondents.  For convenience and clarity they will be referred to throughout this Opinion as the “first respondent” or “second respondent”.

 

Procedural History
[2]        The petitions were each presented to the court in November 2015 and were the subject of case management.  On 7 January 2016 an eight day diet of Proof was allowed and for the purposes of such Proof the court permitted evidence in the petition relative to RSH to be held as evidence in the other three applications.  The Proof was subsequently fixed for 30 March 2016 and seven ensuing days.  By interlocutor dated 24 March 2016 the court, on the joint motion of the first and second respondents, discharged the said diet of Proof.  The reason for the discharge was delay in preparation by the respondents occasioned by issues in relation to obtaining legal aid.  A further eight day diet of Proof was allocated to 24 May 2016.  This Proof could not proceed by reasons of lack of judicial availability on that date.  A fresh diet of Proof was subsequently arranged.  For the convenience of parties, the Proof was split into two four day diets, the first commencing on 20 September, the second on 11 October 2016.  During the course of the second part of the diet of Proof, it became apparent that additional time would be required, primarily to enable the respondents to investigate a medical issue which had arisen in relation to RSH.  The issue required the respondents to obtain the advice of a geneticist and to allow both an application for legal aid for that purpose to be processed and subsequently to allow the geneticist time to prepare a report, the continued diet of Proof was set for 16 May 2017 and five ensuing days.  The diet of Proof was completed within that time period.

[3]        The compeering parties reached agreement on many of the background facts relative to these applications.  The result was a Joint Minute of Admissions.  The Joint Minute was formally part of the process in relation to the application concerning RSH.  It did however contain the extent of the agreement between the parties in relation to all four children.  For clarity, the Joint Minute is reproduced:

1.       The Petitioner is Perth & Kinross Council, a local authority with an office at Pullar House, 35 Kinnoull Street, Perth PH1 5GD.

 

2.         The child is RSH.  He is male.  He was born on 14 June 2005 at Dundee.  He presently resides with foster carers and is designed c/o Perth & Kinross Council.  He is not and has never been married or had a civil partner.  He has no guardians.

 

3.         The First Respondent is LWAH.  She is RSH’s mother.  She resides at [     ] She resides there with the Second Respondent, RRH, who is RSH's father.  The Respondents were married on 21 May 2010.  Both Respondents have parental responsibilities and rights in respect of the child.

 

4.         RSH has three full siblings.  They are:  CMH who was born on 26 May 2009 at Dundee;  MRH who was born on 21 May 2011 at Dundee and AJH who was born on 7 January 2013 at Dundee.  Both Respondents have parental responsibilities and rights in respect of the three siblings.  CMH and MRH are female and AJH is male.  None of the three siblings is or has ever been married or had a civil partner.  None has any guardians.  CMH and MRH are living with foster carers, who are prospective adoptive parents.  AJH is living with foster carers.  The three children are designed c/o Perth & Kinross Council.

 

5.         On 8 November 2012 RSH was referred to the Reporter by Dr Catriona Morrison, Locum Consultant Paediatrician, NHS Tayside, Perth Royal Infirmary, Perth.  Production 6/4 is an accurate copy of the letter of referral.

 

6.         On 28 February 2013 an Initial Assessment Report for the Reporter regarding RSH was prepared by Emma Brooksbank, Senior Social Care Officer of the Social Work Department of the Petitioner.  Production 6/5 is an accurate copy of the Report.

 

7.         On 28 March 2013 a Social Background Report for the Reporter regarding RSH was prepared by Janice Contreras, Social Worker.  Production 6/6 is an accurate copy of the Report.

 

8.         On 13 September 2013 CMH, MRH and AJH were referred to the Reporter by the Social Work Department of the Petitioner.  Reports relating to the children dated 15 October 2013 were prepared by Janice Contreras, Social Worker.  Production numbers 6/7, 6/8 and 6/9 are accurate copies of the Reports relating to CMH, MRH and AJH respectively.

 

9.         On 29 October 2013 Children's Hearings in respect of all four children were unable to make any substantive decisions.  The Hearings directed the Reporter to arrange further Hearings to consider Grounds of Referral.

 

10.       On 21 November 2013 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/10 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.  Similar Orders were made in respect of CMH, MRH and AJH.  The Hearings remitted the Grounds of Referral to the Sheriff for Proof.

 

11.       On 12 December 2013 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/11 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached.  Similar Orders were made in respect of CMH, MRH and AJH.

 

12.       On 30 December 2013, at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/12 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached.  Similar Orders were made in respect of CMH, MRH and AJH.

 

13.       On 14 January 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/13 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached.  Similar Orders were made in respect of CMH, MRH and AJH.

 

14.       On 7 March 2014, all four children were made subject to Child Protection Orders and were removed from the care of the Respondents.  Since that date, the children have been continuously in foster care.  On 11 March 2014 at Children's Hearings, the Child Protection Orders were continued.

 

15.       On 18 March 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/15 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.  The Hearings sent Grounds of Referral to the Sheriff for Proof.

 

16.       On 8 April 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/16 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.

 

17.       On 24 April 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/17 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.

 

18.       On 28 April 2014, Grounds of Referral were established at Perth Sheriff Court.

 

19.       On 8 May 2014 and on 30 June 2014 at Children's Hearings, Interim Compulsory Supervision Orders were made in respect of all four children.

 

20.       On 11 June 2014, amended Grounds of Referral were established at Perth Sheriff Court without evidence being led.  Production 6/18 is an accurate copy of the amended Grounds and those established on 28 April 2014, relating to RSH.  Productions 6/19, 6/20 and 6/21 are accurate copies of the amended Grounds and those established on 28 April 2014 relating to CMH, MRH and AJH respectively.

 

21.       On 30 June 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders.  Production 6/22 is an accurate copy of the Order relating to CMH and the Reasons for the Decisions reached by the Hearing.

 

22.       On 18 July 2014 a Looked After Children Review took place for RSH.  Production 6/26 is an accurate summary of matters discussed at the Review and its recommendations.  On the same date Reviews took place for CMH, MRH and AJH.

 

23.       On 21 July 2014 at Children's Hearings, all four children were made subject to Compulsory Supervision Orders.  Production 6/27 is an accurate copy of the Order relating to RSH and the Decisions and Reasons for the Decisions reached at the Hearing.

 

24.       On 24 March 2015 Perth & Kinross Fostering & Permanence Panel considered the children's cases.  The Panel recommended that all four children were in need of permanent alternative care, and in RSH's case that would best be achieved by a Permanence Order and in the other siblings' cases by Permanence Orders with Authority to Adopt.  The Panel's recommendations were accepted by the local authority's Decision Maker on 2 April 2015.  Production 6/31 is an accurate copy of the Panel's recommendations and acceptance by the Decision Maker in respect of all four children.

 

25.       Production 6/32 is an accurate copy of a Social Background Report prepared by Lorraine Fyffe, Social Worker for RSH dated 19 May 2015.  Production 6/33 is an accurate copy of a Social Background Report prepared by Jim Buchanan, Social Worker for CMH dated 15 May 2015.  Production 6/34 is an accurate copy of a Social Background Report by Jim Buchanan, Social Worker for MRH dated 18 May 2015.  Production 6/35 is an accurate copy of a Social Background Report by Jim Buchanan, Social Worker for AJH dated 18 May 2015.

 

26.       On 11 June 2015 Looked After Child Reviews took place for all four children.  Productions 6/36, 6/37, 6/38 and 6/39 are summaries of the Review Meetings and their recommendations for the future with respect to RSH, CMH, MRH and AJH respectively.

 

27.       On 29 June 2015 at a Children's Hearing RSH's Compulsory Supervision Order was continued, with a measure that RSH should reside with named foster carers and a variation that he should have no direct contact with the Respondents.  Production 6/40 is an accurate copy of the Order and the Decisions and Reasons for the Decisions reached at the Hearing.  An Advice Hearing for RSH was held on the same date.  The Hearing gave advice that a Permanence Order should be pursued for RSH.

 

28.       Barbara Knight accepted appointment as Safeguarder on 31 August 2015.

 

29.       On 3 September 2015 at Children's Hearings for CMH, MRH and AJH, the Panel deferred making a decision and extended the Safeguarder's remit to include the monitoring of contact.  In addition decisions were reached inter alia that CMH, MRH and AJH should have a minimum of one contact with the Respondents within the following three weeks, which contact should be supervised.  Production 6/44 copy of the Interim Variation of the Compulsory Supervision Order and the Decisions reached and Reasons for the Decisions relating to CMH.

 

30.       The Safeguarder Barbara Knight produced a Report dated 4 October 2015.  Production 6/45 is an accurate copy of her Report.

 

31.       On 12 October 2015 Children's Hearings took place for CMH, MRH and AJH.  The children's Compulsory Supervision Orders were continued, with a variation that they should have no contact with the Respondents.  Production 6/46 is an accurate copy of the Order relating to CMH and the Decisions and Reasons for the Decisions reached at the Hearing.  Similar Orders were made in respect of MRH and AJH.  Advice Hearings for the children were held on the same date.  The Hearings gave advice that Permanence should be pursued for CMH, MRH and AJH.  That advice was not unanimous.  The minority decision was that any decision about permanence should be taken by the court as soon as possible in order that all parties could have their say.

 

32.       On 5 November 2015 Children's Hearings took place for CMH and MRH at the request of the local authority.  The children's Compulsory Supervision Orders were varied to provide that they could move to live with new foster carers who are also prospective adoptive parents.  Productions 6/47 and 6/48 are accurate copies of the Orders as varied relating to CMH and MRH respectively.

 

33.       Production 6/23 is an accurate copy of the Curriculum Vitae of Paul Jones, Consultant Clinical Psychologist.  Production 6/24 is an accurate copy of a Preliminary Psychological Report by Paul Jones dated 22 January 2013 (which should be dated 22 January 2014).  Production 6/25 is an accurate copy of a letter from Paul Jones, Consultant Clinical Psychologist dated 14 July 2014.  Production 6/28 is an accurate copy of a Psychological Report by Paul Jones dated 19 August 2014.

 

34.       Production 6/14 is a true and accurate copy of an Assessment by Dr Donna Redford, Clinical Psychologist, NHS Tayside relating to the First Respondent dated 29 January 2014.

 

35.       Production 6/29 is a copy of a Sibling Assessment dated 1 December 2014.  Production 6/30 is a copy of a Sibling Assessment dated 9 March 2015.

 

Legislative Background
[4]        The legislative framework against which these petitions require to be considered was not contentious.  There was, further, broad agreement as to the judicial approach to the interpretation of the legislative provisions which require to be considered.

[5]        So far as that legislative framework is concerned, sections 1 and 2 of the 1995 Act define the terms “parental responsibilities” (section 1) and “parental rights” (section 2).  Section 80 of the 2007 Act defines a “Permanence Order”.  The mandatory provision which must be made if a permanence order is granted is defined in section 81 of the 2007 Act.  Section 82 of the 2007 Act sets forth ancillary provisions which may be granted in appropriate cases.  Conditions which must be satisfied before authority may be granted for a child to be adopted are set forth in section 83 of the 2007 Act.  Section 84 stipulates the statutory considerations which must be satisfied before a Permanence Order can be made.  Section 84 provides:

“(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 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 and the paramount consideration.

 

(5)        Before making a Permanence Order, the court must –

 

(a)        After taking account of the child’s age and maturity, so far as is reasonably practicable –

 

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

 

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

                        (b)        have regard to –

 

(i)         any such views the child may express,

 

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

 

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

 

(c)        be satisfied that –

 

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

 

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

 

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

 

[6]        In relation to the construction of these provisions, and in particular the construction of section 84 of the 2007 Act, there is recent authoritative guidance to be found in the speech of Lord Reed in the UK Supreme Court decision in West Lothian Council v B 2017 SLT 319.  In delivering the decision of the court, Lord Reed stated:

“[13]    Section 84(4) applies where the court is “considering whether to make a Permanence Order and, if so, what provision the Order should make.

 

It has no bearing on the test imposed by section 84(5)(c), since (1) that is a factual test which cannot be affected by treating the child’s welfare as the paramount consideration, and (2) the test must be satisfied before the court reaches the stage of considering whether to make a Permanence Order.  Once that stage is reached, however, section 84(4) is plainly important.”

 

[7]        Lord Reed proceeded in paragraph [15]:

“The statement that section 84(5)(c) raises factors which have to be addressed does not make clear its true significance:  it lays down factual tests which must be satisfied before a Permanence Order can be made.  The passage is also mistaken in stating that subsection (4) has to be borne in mind when addressing subsection (5):  I have explained why subsection (4) does not affect the test imposed by subsection (5)(c), and it is equally incapable of affecting the duty to have regard to the matters mentioned in subsection 5(a) and (b).  Nevertheless, the passage provides clear guidance as to the need to address the issue arising under subsection (5)(c) before considering subsections (3) and (4).”

 

[8]        It is plain from the foregoing Opinion of Lord Reed that section 84 imposes two critical conditions if a Permanence Order is to be made, first, in terms of subsection (3) that it must be better for the child that the Order should be made than that it should not be made and second, in terms of subsection (5)(c)(ii) the court must be satisfied that the child’s residence with the parent is, or is likely to be, seriously detrimental to his or her welfare before an Order can be made.  The second provision has been described by Lord Drummond Young as a “threshold test” (KR v Stirling Council [2016] CSIH 36).

[9]        In relation to authority to adopt, which is relevant in relation to the applications concerning CMH, MRH and AJH, the statutory provisions which are most relevant are sections 83(2)(d) and (3).  As is made clear in the speech of Lord Reed in the UK Supreme Court in S v L 2013 SC (UKSC) 20 at paragraphs 30 to 37 that the tests are desiderated in these provisions are mutually exclusive, the test in section 83 being a “parental capacity” test and the test in section 83(2)(d) being a “welfare” test.  It is to be noted that, on the authority previously mentioned, the word used in relation to the welfare test in section 83(2)(d) is “require”.  This is a high test and as a matter of ordinary English, something which requires not merely to be desirable or reasonable but “necessary”.

 

Evidence
(1)        The Petitioners
[10]      Evidence in chief at Proof was adduced by way of affidavit from witnesses of fact and report in the case of expert witnesses.  The petitioners adduced evidence from the following persons:

1.         Gill Bruce, Social Worker[1]

2.         Paul Jones, Consultant Clinical Psychologist[2]

3.         James Buchanan, Social Worker[3]

4.         Janice Contreras, Social Worker[4]

5.         Lorraine Fyffe, Social Worker[5]

6.         Leona Purdie, Senior Social Care Officer[6]

7.         Avril Maak, Senior Social Care Officer[7]

[11]      In addition to the foregoing persons, counsel for the petitioners tendered an affidavit of Christine Cattanach, a Family Support Worker[8].  Ms Cattanach was unable to attend at Proof.  I was informed that she had been absent from work suffering from ill-health.  A soul and conscience medical certificate confirming Ms Cattanach’s inability to attend court was provided from her GP, produced and relied upon.[9]  Counsel for both respondents indicated that they would have wished to cross-examine Ms Cattanach had she appeared as a witness.  It was agreed by all parties that I should read Ms Cattanach’s affidavit but that it would be a matter for me to determine what weight, if any, I should give to the deponent’s views.

[12]      The first respondent gave evidence on her own behalf.[10]  The second respondent gave evidence on his own behalf.[11]  In addition the second respondent adduced evidence from Professor David J Cooke, Professor of Psychology, University of Bergen.[12]  Barbara Knight, Safeguarder[13] and Dr Kirsty Dalrymple, Consultant Clinical Psychologist.[14]  In addition to those witnesses, the second respondent tendered an affidavit from Barbara Bodle.[15]  Mrs Bodle was not made available for cross-examination.  Counsel for the petitioners indicated that, had she been available, she would have wished to cross-examine Mrs Bodle.  As with the witness in this category from whom an affidavit was tendered by the petitioners, it was agreed between the parties that I could read Mrs Bodle’s affidavit and the question of what weight, if any, to be attached to any material therein would be a matter for me.

[13]      Ms Bruce is a Senior Social Worker with the petitioners.  In June 2012 she became the Team Leader of a Child Care Fieldwork Team.  In this capacity, her duties involved the management of social work staff in all aspects of child protection, child care, looked after children, kinship care and permanent care through to making recommendations at the Fostering and Adoption Panel.[16]  In this capacity, Ms Bruce first became professionally involved with the respondents and their children in 2012.  She was aware that the family had received support from a number of agencies prior to her direct involvement[17].  Direct involvement with the petitioners’ Social Work Department arose when a consultant paediatrician, Dr Morrison at Perth Royal Infirmary, referred RSH to the Children’s Reporter following that child’s attendance at the hospital in relation to toileting issues.[18]  Ms Bruce’s evidence was that during  RSH’s time in hospital health official had witnessed the child having been “… subjected to insensitive and punitive parenting” and that Dr Morrison had ruled out an organic cause for RSH’s toileting issues and had formed the opinion that the problem was due to an unwillingness on the part of the respondents to act on advice given to them by medical staff in relation to RSH’s toileting issues.  Dr Morrison’s referral to the Reporter to the Children’s Panel was dated 8 November 2012.[19]

[14]      Following this, Ms Bruce familiarised herself with her department’s records regarding the family and having received a request for a report into the circumstances of the family, allocated the case to a social worker in her team, Emma Brooksbank.  That person provided an “Initial Assessment/Report” recommending further assessment for all four children.  In March 2013, direct responsibility for the case was transferred from Emma Brooksbank to Janice Contreras.  Ms Brooksbank’s “Initial Assessment/Report” was dated 12 March 2013.[20]  This report was prepared by its author between either 6 or 8 and 28 February 2013.[21]  It is stated to be based “On the basis of my involvement with …” the respondents and RSH since she was allocated the case.  She also met the subject children’s maternal grandmother and RSH’s siblings and spoke to a number of professionals who are identified.  Reference was had to “departmental records and Medical Records” without further specification.  Unfortunately there was no detail of the number of meetings the author had with family members.  In her conclusions Ms Brooksbank expressed concerns about the respondents’ “parenting style” and the expressed the view that “[C]urrent accommodation is inappropriate for the family”.

[15]      In March 2013, Ms Bruce also received a letter from the health visitor responsible for the family outlining ongoing concerns that person had relative to the child RSH and the parenting he was receiving.[22]  On 16 July 2013 Ms Bruce received a telephone call from a neighbour of the family alleging that RSH was “being subjected to abusive parenting”.[23]  As a result of this telephone call, Ms Bruce arranged to make an unannounced visit to the family in the company of a social worker in her team, Janice Contreras, which took place on 17 July 2013.  At this time only the second respondent was at home.  Ms Bruce stated that she and Ms Contreras observed the home and sleeping arrangements.  Her evidence was that:

“[T]he home was extremely cluttered and there was little room to move and nowhere to sit down.  There was certainly not enough space for children to play.  Few toys were in evidence.  There was no space for a young baby to crawl around the floor or a toddler to explore or learn to walk.  There was no table space for the family to eat at, or the older children to play at or for [RSH] to do his homework at.  The house was untidy and appeared to be dirty.  My concerns were that the physical environment was not conducive to children being brought up in a safe environment where they could crawl, play, explore and, in so doing so, advance their motor development.  I observed [RSH] and [CMH] bedroom.  I noted it had a set of bunkbeds and a single bed.  The room was cluttered with no space for the children to move about.  However, I did note the bedding looked clean.  The bedroom at the front of the flat, which we were advised was shared by [first and second respondent] and [AJH and MRH] was extremely cluttered, unclean and had no bedding on the double bed.  Additionally, the bed had a mattress which was badly stained.  This gave me concern that the children’s physical needs were not being met”[24]

 

[16]      Following this visit to the family home, a referral was made by the petitioners to the Reporter under the ground “Lack of Parental Care” and “Close Connections”.  The reason for the second ground was stated in her evidence by Ms Bruce as being “… because a Schedule 1 offender was living or was, at least, having a lot of contact and involvement with the children.”[25]  A recommendation was made to the Children’s Panel that a detailed assessment would be required in the form of a Parenting Capacity Assessment.  Grounds of referral, which were not accepted by the respondents, were denied and the matter was referred to the sheriff for Proof.  On 21 November 2013 the Children’s Panel granted Interim Compulsory Supervision Orders for all four children.[26]  The order required that there should be a medical assessment of the child AJH.  The Order also provided that AJH and MSH should attend a child and family centre on a daily basis to allow support to be given and that the petitioners’ social work department should be allowed access in the evenings to support the implementation of night time routines on a daily basis.  Ms Bruce determined that a Parenting Capacity Assessment was required and should be prepared by a third party.  To this end a consultant psychologist, Paul Jones, was instructed to undertake the assessment.  Ms Bruce stated that she met with both respondents on 22 November 2013 to advise them of social work concerns and to explain the measures put in place to assist their parenting.  One of these measures was the involvement of “”Perthshire Families” whose remit was to support “… the family around mealtimes and in the evenings, overseeing the bath time route, observing and providing feedback …”[27]  Ms Bruce’s evidence was that “[F]airly quickly, in my view, it became clear that Perthshire Families were not working to the remit …”[28]  Ms Bruce did not consider that feedback from this body was accurate, citing an instance when feedback sheets from Perthshire Families recorded conditions in the respondents’ house as acceptable but a visit by herself and Ms Contreras the following day found home conditions to be unacceptable.  No date was provided for this incident nor were any records produced.  The services of Perthshire Families were terminated.

[17]      The evidence of Ms Bruce was that the first and second respondent had not initially engaged appropriately with Mr Jones in his preparation of the Parenting Capacity Assessment.  It was accepted that eventually the respondents did co-operate and agree to meet with Mr Jones. 

[18]      Ms Bruce and Ms Contreras again attended at the family home on 21 February 2014.  On this occasion both the first and second respondent as well RSH and CMH were present.  Ms Bruce’s evidence was again that conditions in the house are unsatisfactory:

“[A]gain, I noted the children’s bedroom was untidy with a lot of clutter.  There did not appear to be anywhere to sit down in the livingroom.  The fold down sofa bed had not been folded away and the bedding looked dirty.  There was a smell of urine in the room.  The floor was dirty with what looked like foodstuff on the floor.”[29]

 

Ms Bruce said that her efforts to discuss parenting issues with the respondents were unsuccessful.  She said that both respondents were hostile towards her and Ms Contreras.  The respondents’ view was “... that their parenting was fine and there was no need for social work to be involved.”[30]  Ms Bruce said that the first respondent “became extremely verbally aggressive to us” and that she became concerned that it might have an adverse effect on the children and so she and Ms Contreras left.  Ms Bruce’s stated view was that the first respondent “was very close to assaulting us.”

[19]      There was a further home visit by Ms Contreras and Ms Davidson, a health visitor, on 7 March 2014.  A third ostensibly independent person was present at this meeting, Mhairi Simpson from an organisation called “Parent to Parent”.  On Ms Bruce’s evidence this was a voluntary organisation which supported families with children awaiting assessment.  It was Ms Bruce’s understanding that the respondents of their own volition had approached this organisation in February 2014.  Ms Simpson was not a witness at Proof.  Following that meeting it was reported to Ms Bruce that the respondents were again verbally aggressive towards the social worker and health visitor.  Ms Bruce’s evidence was that Ms Contreras, on reporting this matter to her later that day, was sufficiently upset and concerned to cause a decision to be made to seek a Child Protection Order in relation to the children on the grounds of a perceived significant immediate risk of physical and emotional harm.  That Order was granted and at approximately 9.50pm on 7 March 2014 Ms Bruce, accompanied by social workers from her team and police officers, attended at the respondent’s family home and implemented the Order by removing all four children from the care of the respondents and placing them in foster care.  Ms Bruce’s evidence was that the child RSH was wakened from his bed, appeared to be, in her words, “relieved” and left without problem.  She indicated that the child CMH was the only one who appeared to be upset at these events and that because, in her opinion, she had to be woken from a deep sleep.

[20]      Ms Bruce gave evidence about a debrief meeting amongst social workers on 10 March 2014 when a social worker present on the evening of 7 March had brought to the attention a label said to be on a chest of drawers in the girls’ bedroom which, on Ms Bruce’s interpretation, might have carried a sexual innuendo.  She linked this with “… previous allegations relative to sexual abuse” [31] made against the second respondent and an apparent reluctance by CMH to have her photograph taken which she regarded as “out of context for a child of her age”.[32]

[21]      Following the granting of the Child Protection Orders and the placing of the children in foster care, arrangements were made with the respondents for contact.  A contact agreement was signed by the petitioners and respondents on 14 March 2014.  In addition to stipulating times and places where contact could be exercised the agreement permitted an assessment of the respondents’ interaction with the children during contact.

[22]      Ms Bruce appeared to have had limited personal involvement in contact between any of the children and the respondents.  She stated that “on occasions” she would be present “at the start and end times” without specifying the number or dates of such occasions or who were present.[33]  She did state a number of concerns about contact and the respondents’ attitude based upon these observations.

[23]      Ms Contreras is a social worker formerly employed by the petitioners.  In late March 2013, the care of the respondents and their family were allocated to her.  In order to familiarise herself with the case after she became responsible, Ms Contreras reviewed all Social Work Department notes and also Emma Brooksbank’s initial Assessment Report.  On the basis of her considerations of the material available to her Ms Contreras gave evidence of a general nature about both respondents and their four children’s involvement with the petitioners’ Social Work Department and various other agencies in the period prior to March 2013.[34]  In relation to the period from her involvement in March 2013 until early 2014, Ms Contreras’ evidence broadly corroborated the procedural steps taken by the petitioners in relation to the family and as spoken to by Gill Bruce.

[24]      Ms Contreras’ first personal involvement with the family was the preparation of a social background report relative to RSH.  Concerns in this report were expressed in relation to the home environment, lack of care shown to the children, the way in which the first respondent addressed the children, the respondents’ negative attitude to RSH and the distrust of the respondents towards social workers and health professionals.[35] Ms Contreras attended at the family home with Ms Bruce on 17 July 2013.  Her comments on its condition broadly corroborate the evidence of Ms Bruce.[36]  Ms Contreras prepared the reports for the Children’s Panel which resulted in the making of Compulsory Supervision Orders in late 2013.

[25]      Ms Contreras stated that on 21 January 2014, the school attended by RSH informed her that the child had “... threatened to run away and didn’t want to be part of the family.”[37]  Ms Contreras and another social worker visited the family home on 23 January 2014.  She described this as “... another difficult meeting.”[38]  As a consequence of these developments, a Professionals Workers Meeting was convened on 27 January 2014, the result of which was a referral of RSH to Child and Adolescent Mental Age Health Services for an assessment.  At or about the same time, the respondents were referred to an organisation “Parent to Parent” for support.  This organisation provides parenting support for families caring for a child with additional needs.  Ms Contreras did not say whether this was a referral by the respondents themselves or by some other agency.

[26]      Ms Contreras spoke to the visit to the respondents’ house on 21 February 2014 with Gill Bruce.  It was Ms Contreras’ evidence that at the meeting both respondents were “very hostile”.[39]  She also said that she considered the rooms seen in the house to be “unhygienic and untidy”.[40]  Her view was that the first respondent presented as “hostile and oppositional”.  She said that at the end of the meeting the first respondent “ordered us out of the home when attempts were made to discuss parenting issues.[41]

[27]      Ms Contreras’ evidence about the visit of 7 March 2014 was that, on that day she attended the respondents’ house with a health visitor, Fiona Davidson.  On arrival there appeared to be no problems.  The child RSH was present and Ms Contreras asked him about his day at school and the child responded that “... he was not allowed to speak to social  work.”[42]  Ms Contreras continued that the second respondent challenged the child about this statement, the child continued to be “quite vocal” and stated that “... his father had told him not to say anything.”[43]  The child then went further and stated that “... there were five rules to which [CMH] was also familiar”[44]  At this point it was stated that both respondents shouted at the child in an aggressive manner.  The child was “quite upset” and Ms Contreras asked the child if he would mind if she came to speak to him at school and he replied in the affirmative.  At this point the first respondent started to shout about the consequences of the child seeing Ms Contreras at school.  The witness then stated that she attempted to comfort the child and in so doing placed a hand on his shoulder then his head.  At this point she said that the first respondent:

“... lunged towards me and started shouting and screaming and point a comb in my face.  She said she was going to have me arrested for touching [RSH].  Thereafter, [RSH] started shouting at his mother saying he wanted her to be arrested and for the police to take her away.”[45]

 

The evidence of the witness was that the child was “extremely distressed” and stated that he wanted to speak to her.  At this point Mhairi Simpson from “Parent to Parent” arrived and persuaded the respondents to allow the social workers to speak to the child in a bedroom and attempt to try and calm him down.  On the social worker’s return to the livingroom after this, the first respondent became angry again demanding to know what had been discussed in the bedroom.  At this point Ms Contreras and the health visitor decided to leave.  Ms Contreras returned to her office and discussed the matter with her team leader, Gill Bruce.  Her stated view was that RSH and his siblings “were in an abusive unpredictable environment with little or no protective factors and were at risk of significant emotional harm and neglect.”  She further considered “… the various allegations made by a range of professionals and members of the public over a significant period …” to be highly concerning.[46]  As a result of the discussion with Ms Bruce, a decision was taken to apply for a Child Protection Order, which was done and was granted by the sheriff later that day.  Ms Contreras was part of the group of people who attended on the evening of 7 March 2014 to implement the Child Protection Order.  Her evidence was that RSH was quite happy to be leaving the home.

[28]      Ms Contreras confirmed the arrangements in relation to contact that were established after the children had been accommodated.  She had prepared a sibling assessment on 9 March 2015 which concluded that RSH and ASH should be placed separately in individual permanent placements and that CMH and MRH should be placed together.[47]  This arrangement has in fact operated throughout the period in which the children have been accommodated.  She spoke to the circumstances of the children after they had been accommodated.  She stated that RSH had made significant progress during the time that she remained the social worker responsible for his case.  It was her view that “[H]e presented as a much happier child and appeared less anxious.”[48]  She also stated that after they were accommodated the children CMH and MRH did not appear to show any distress at being separated from their parents.  It was her view that this was an indication of poor attachment due to a lack of adequate parental care.  She also stated that the carers of these children reported difficulties around bath times immediately following being accommodated.  She again believed this was indicative of past experiences around bath times.  Her view was that these children “seemed very happy and had quickly established a trusting relationship with their carers.”[49] 

[29]      Ms Contreras was replaced as the social worker responsible for the family in April 2015.  At this stage the social work responsibility for the family was split.  A social worker, Lorraine Fyffe, became responsible for the child RSH.  Another social worker, James Buchanan, assumed responsibility for CMH, MRH and AJH.  All four children were accommodated at the time these persons assumed responsibility for their cases.  They have remained accommodated throughout the period of the responsibility of these workers.  Ms Fyffe and Mr Buchanan’s evidence is accordingly confined to the children’s position whilst accommodated and to contact which they observed between the children and the respondents.

[30]      In relation to RSH, Miss Fyffe discussed the case with both Ms Bruce and Ms Contreras  prior to taking over, she prepared reports for meetings relative to the child and for LAC reviews.  She submitted a report to the Hearing Panel in May 2015 advising on RSH’s “challenging behaviour” and refusal to attend contact in the early months of 2015.[50]  She prepared a case assessment for a Children’s Hearing meeting on 29 June 2015.  The report advised that RSH had made “significant progress in his development” in his foster placement and “...on the background of evidence his parents would clearly have not been able to provide this care.”  The view was that if RSH returned to his parents “...his behaviour would be likely to deteriorate.”  She asked that the hearing consider stopping the respondents’ contact with RSH.[51]  The respondents’ contact with RSH was stopped by the Children’s Hearing on this recommendation.  Ms Fyffe’s further evidence was that during the period of her responsibility for him RSH displayed what she described as “challenging behaviours” including shouting, swearing, hitting adults and children and refusing to listen to instructions.[52]  His behaviour was directed not only at carers but on occasion at school where he had hit out at other children.  As a result of the child’s challenging behaviour, he required to be placed with alternative carers after approximately 22 months as a looked after child.  Ms Fyffe’s evidence was that initially RSH settled with new carers but by about March 2016 he had again become unsettled.  As a consequence he required to be removed from that placement and on 8 June 2016 he was placed at a residential school.  Ms Fyffe’s evidence was that by the summer of 2016 RSH required “constant support and security”.[53]  He had had two failed foster placements and it was considered at this stage that he would require long term placement in residential school to adequately to provide for his difficult needs.  The position as at September 2016 in Ms Fyffe’s most recent interviews before swearing her affidavit, was that it had been established that RSH functions at the level of a four year old.  He was being assessed in the residential school.  He has the services of a therapeutic coordinator to assist and ensure he receives the many different types of care he requires.  He was functioning well within the school environment.

[31]      Mr Buchanan was allocated the cases of CMH, MRH and AJH in April 2015.  In the preparation for the responsibility for these cases he familiarised himself with the relative case notes and read other relevant papers including the report which was by then available from the clinical psychologist, Mr Paul Jones.  He also met with Ms Contreras and discussed her involvement in the case up to the time of transfer. 

[32]      Mr Buchanan’s evidence was after the children became accommodated “… attempts for rehabilitation were hampered by the respondents’ refusal to countenance any suggestion there was a deficit in their parenting, or that this had been to the children’s detriments.[54]  On his own evidence Mr Buchanan’s views in this regard appear to have been heavily influenced by what he read and the opinion of Mr Jones, the independent child psychologist.[55]  Mr Buchanan indicated that permanence was first recommended by a LAC review on 18 July 2014.  He indicated that he had prepared numerous reports for Children’s Hearings in relation to the children and had attended hearings to speak to these reports.  On 24 March 2015 Perth & Kinross Fostering and Permanence Panel recommended that the three children for whom Mr Buchanan was the designated social worker be considered as in need of permanent substitute care.[56]  Mr Buchanan further indicated that on 11 June 2015 a LAC review “… stated contact had been assessed as not beneficial to the children and reiterated the recommendation to the upcoming Hearing that contact ought to be terminated.”[57]  On 2 July 2015 Mr Buchanan sent Core Assessments to the children’s hearing.  These assessments were designed to inform the hearing in relation to issues around contact and to request advice and the support of Permanence Orders with Authority to Adopt.[58]  In this assessment Mr Buchanan expressed the view that [AJH] was thriving in his foster placement.”  He stated further in relation to the child “… that he was slowly engaging more in the world and becoming more confident his needs would be met”  He said that the child’s carer “was clear that [AJH] attached no particular significance to parental contact.”[59]  In relation to the child MRH Mr Buchanan expressed the view in the Core Assessment that her development was delayed “but she was making good progress since she had been placed with her foster carers.”[60]  In relation to the child CMH Mr Buchanan noted that she had a good relationship with her carers.  He thought the child felt safe in her environment and that the carer had established good routines for her.  He considered that the child “was being properly nurtured and was receiving appropriate reparative care from the carer.”[61]  His overall recommendation was that all three children for whom he was responsible should remain with their foster carers with a view to permanent adoptive care.  He further requested that the Children’s Hearing terminate contact in respect of the three children.[62]  The recommendations in Mr Buchanan’s Core Assessment were due to be determined by a children’s hearing on 2 July 2015.  In the event it would appear that that reporter to the children’s panel did not complete a formal record of the decision at that meeting and there required to be a further hearing which was held on 3 September 2015.  Prior to that meeting a Pre‑Hearing Panel was convened on 27 August 2015 which decided to appoint a Safeguarder to ensure the children’s placements were meeting their needs.[63]

[33]      Mr Buchanan then spoke to his impression of distress on the part of child MRH at the conclusion of a contact session prior to the panel hearing on 3 September 2015.  He noted that at a continued children’s hearing on 12 October 2015 the Safeguarder’s report was available, that the report recommended termination of contact and that contact between the respondents and the children was terminated. 

[34]      Following termination of contact Mr Buchanan continued to be responsible for the three children allocated to him.  His evidence was primarily in relation to the efforts made by the petitioners to obtain a permanent placement for the children with a view to adoption.  In that regard in respect of the children CMH and MRH he stated that prospective adopters were recruited and trained by Scottish Adoption.  Mr Buchanan spoke to attending a Perth & Kinross Fostering and Adoption Panel on 11 August 2015.  A decision of that panel was to recommend CMH and MRH be matched on an adoptive basis with the proposed adopters and on a temporary fostering basis to allow the children to move to this family prior to adoption being finalised.[64] Mr Buchanan had monitored the children in this placement and spoke positively of it.  He considered that MRH “has really flourished and has emerged much more confidently as an individual …” in this placement.[65]  He was also positive in relation to the placement as regards CMH.

[35]      Mr Buchanan explained that AJH had been placed with separate foster carers.  He indicated that prospective adoptive parents had been identified for AJH.  In September 2016 AJH was diagnosed as having type 1 diabetes.  This matter had been discussed between the prospective adopters and doctors.  It was explained the effects the disease would have on AJH’s childhood and beyond.  The prospective adopters indicated their intention to be fully trained in how to care for the child notwithstanding this illness.  They remain committed to the interests of the child and caring for him either as adopters or carers.

[36]      Leonna Purdie is employed by the petitioners as a Senior Social Care Officer within the Family and Early Years Resource Team.  She had involvement with the respondents and their children initially following a referral to the team she was engaged with by a health visitor in March 2011.  Between that time and January 2012 she made a number of visits to the respondents’ house.  She thereafter had professional involvement with the respondents supervising contact in the period after the removal of the children from home in March 2014.

[37]      In relation to the early period Miss Purdie first met the respondents at a home visit on 26 April 2011.  Both respondents were present and Miss Purdie discussed their parenting with them.  She stated that both respondents indicated that RSH’s “… behaviour at home and in school is very challenging and he will not do as he is told.”[66]  Miss Purdie’s impression at this time was that “… both parents were very negative towards [RSH] and lacked an understanding of why he is doing this.”[67]  Miss Purdie discussed this matter with the parents but considered that they were hostile in their attitude towards her as a social worker.  Miss Purdie made a further visit to the respondents’ home on 2 May 2011 this time in the company of another social worker, the team leader of the Early Years Resource Team.  She thought on this occasion that the respondents were more accepting in attempting to engage with the social workers.  She said that both parents continued to find RSH’s behaviour difficult at times.  The second respondent also stated parenting issues that were being experienced with RSH.  Miss Purdie indicated that she continued to have regular contact with the family over a period of months following this visit.  Notwithstanding this generally positive view held by Miss Purdie on 9 January 2012 both respondents sent a letter to the petitioners requesting that the support being offered by Miss Purdie be terminated as they did not feel it was of any benefit to RSH.  Miss Purdie’s dealing with the family then ceased until the period after March 2014.

[38]      Miss Purdie indicated that following the children’s removal from their parents contact was, by agreement, initially weekly but that was reduced to monthly in July 2014.  On 12 October 2015 the children’s hearing reduced contact to nil.[68]  In total Miss Purdie supervised 17 contact sessions between the parents and the children when “... general observations from the contact sessions were that both parents struggled to pend quality time with each child...”[69]  She considered that the second respondent favoured the boys, the first respondent favoured CMH and that MRH was a “lost soul who was often left to her own devices...”[70]  She thought that the respondents were not as well prepared for contact as they should have been.  Her position was that whilst some positives could be found the general nature of contact was not positive. 

[39]      Avril Maak is a Senior Social Care Officer employed by the petitioners.  Since November 2015 she has worked with the Gowans Early Years Team.  On 21 November 2013 the Children’s Hearing made all four of the respondents’ children subject to Interim Compulsory Supervision Orders.[71]  One of the conditions of these orders in relation to MRH and AJH was that they would attend Gowans Children and Family Centre on a daily basis to ensure and promote their healthy development.  Ms Maak’s evidence, based on her examination of the records was that MRH and AJH attended at Gowans on a daily basis until they were accommodated in March 2014.  Thereafter AJH attended initially two days a week and latterly one day a week until his placement ended.  MRH attended daily until she left to start pre-school placement in August 2014.  Whilst attending at Gowans Ms Maak was assigned as AJH’s key worker.

[40]      In relation to AJH during his time at Gowans Ms Maak’s evidence was that “[H]e was not well presented.”[72]  She thought that his clothes were often too small for him.  His behaviour at the centre suggested to her a lack of stimulation whilst he was at home.  She thought his behaviour was unusual for a child of his age in that he was not very mobile.  She raised these concerns with the respondents but they were annoyed with this.  She said that after AJH was accommodated improvements were noted in his emotional and social presentation.  She noted an increase in confidence and that he appeared to be “… a much happier and healthier child.”[73]

[41]      In relation to MRH Ms Maak’s evidence was that during the time she lived with the parents and attended at Gowans she “...often presented as very tired...and unkempt and heavy eyed.”  She was noticed to wear the same clothes for a number of days.  She seemed “withdrawn and was quite solitary....”  Her attendance record at the centre in this period was poor.[74]

[42]      Ms Maak supervised one contact session between the respondents and the children.  Her view was that during this session, which took place on 27 June 2014, the respondents “… struggled to keep all the children occupied.  They seemed stressed by the situation and the session was quite chaotic as a result.”[75]

[43]      I should also deal with Christine Cattanach, another social worker, from whom an affidavit was tendered by the petitioners but who was not able to attend at the Proof and whom both respondents wished to cross‑examine.  I have outlined the position in relation to this witness in paragraph 11.  Having considered the position I have concluded that in circumstances where a party to an action expresses a desire to cross‑examine a potential witness the court should be slow to have regard to that person’s affidavit evidence when the deponent is unavailable for cross‑examination.  There may be occasions, the death of the deponent before Proof is probably the most compelling, when there is a very strong argument for giving some weight to the affidavit.  Here the reasons are, as I understand it and on my interpretation of the facts, less compelling.  Ms Cattanach was, I was informed, long term absent from work.  That fact had been known for some time before Proof.  It does not appear that any detailed thought had been given to alternative means of making the deponent available for cross‑examination.  My understanding was that the petitioners hoped that, having considered Ms Cattanach’s affidavit, the respondents would forego the right of cross‑examination.  That did not transpire.  In these circumstances I have reached the view that as a matter of fairness and justice I should have no regard to the affidavit of Ms Cattanach.    

[44]      Paul Jones is a consultant clinical psychologist who was instructed by the petitioners in early 2014 to undertake an independent psychological assessment of the respondents and the four children.  Mr Jones had an initial meeting with Children & Families Services of the petitioners on 14 January 2014 at which time he was informed that the respondents would not comply with his work at that time.  He accordingly prepared a document entitled “Preliminary Psychological Report” dated 22 January 2014[76] which in terms was a report based upon a review of case papers.  The respondents subsequently agreed to cooperate with Mr Jones.  The outcome was a Psychological Report dated 19 August 2014.[77]  

[45]      Mr Jones’ psychological report was intended to identify any deficits in respect of parenting of the children and, in the event that deficits were identified, to consider the respondents’ capacity to change and their ability to meet the children’s needs if they were returned home.  In addition the report was intended:

“[T] to offer a view on the impact on the children of their parenting to date and, in the event the assessment indicated the parents could not meet the children’s needs, the impact upon the children of their returning home in those circumstances.”[78]

 

Documents considered by Mr Jones in preparation of this report were identified.[79]  In addition Mr Jones attended one contact session of 60 minutes duration between the respondents and the four children;   he interviewed RSH on two occasions and interviewed the foster carers then in place on one occasion;  he observed CMH and MRH with their carers on one occasion and on the same date, interviewed each child;  he conducted two joint interviews with the respondents and interviewed the second respondent on two occasions and the first respondent on a single occasion.[80] 

[46]      One aspect of Mr Jones’ report was that he carried out a psychometric assessment of the second respondent.  The methodology adopted for this exercise and the results are set forth in the report.[81]

[47]      Mr Jones’ conclusions in relation to the respondents was that “… at no stage did either parent demonstrate any understanding or acceptance of the concerns…”[82] of social workers.  In relation to the second respondent Mr Jones considered that his rejection of concerns expressed by social workers reflected:

“… profound concerns about his personality functioning, the psychometric assessment as reported at section 6.10, paragraphs 6.10.2c ‑ 6.10.2p, particularly the final paragraph, confirming the major difficulties in attempting to work with him.”[83]

 

In his conclusion about the respondents Mr Jones also stated:

“... I am aware of serious concerns raised by the Local Authority of sexual abuse or, more precisely, concerns about likely risks arising from conversations between family members and those who were, or were suspected to have been involved in sexual abuse, all of such concerns were dismissed or minimised.  The history is significant and whilst such concerns cannot be dismissed I find that even without considering such risks any further the concerns about the privation suffered by the children through the neglected and emotionally abusive care provided by their parents to be extensive.”[84]

 

Mr Jones considered that:

“… there are no indicators that [the respondents] are capable of meeting the needs of any of the children, all of whom would be at high risk of abuse and of their healthy development being derailed were they to be returned to their care.”[85]

 

[48]      In relation to the children it should first be noted that Mr Jones did not meet with AJH and therefore his personal observation of that child was confined to the one contact he observed.  His conclusions in relation to all the children was that there had been improvement since they were removed from the care of the respondents.  He considered that:

“[T] there is evidence of all the children having suffered significant harm.  The evidence strongly suggests that were any of the children to return home their healthy development would be impaired and they would be placed at unacceptably high risks of abuse and neglect.”

 

(ii) First Respondent
[49]      The first respondent gave evidence on her own behalf.  She spoke to her affidavit dated 11 May 2016[86] and was cross‑examined on that document.

[50]      Her evidence was that the material in the applications for permanence was overstated and that she opposed orders being granted for permanence and adoption.  She acknowledged that she had learning problems.  She indicated that whilst in her care she was the person who took primary responsibility for looking after the children.  She said that she had no favourites as between the children and that she had never hit her children.  She and her husband, the second respondent, took the children on day trips and provided them with plenty of toys and other forms of stimulation.

[51]      The first respondent explained in detail difficulties she and her husband had experienced in bringing up the eldest child, RSH.  These difficulties she attributed primarily to problems that emerged from an early stage in the toileting of that child.  She confirmed that after being seen by the family general practitioner the child was referred to a consultant paediatrician, Dr Morrison at Perth Royal Infirmary.  Her position was that she and her husband were dutiful in taking RSH to all of his appointments in the hospital.  She co‑operated in ensuring the child took all medicines prescribed by the doctors at the hospital.  She accepted that there was what she described as “… upset between my husband and Dr Morrison”[87] but attributed this to a disagreement between her husband and Dr Morrison as to the reasons given for RSH soiling himself whilst at the doctor’s clinic.  The first respondent also stated that she had been told by Dr Morrison that RSH’s upbringing was the cause of his toileting problems.  The first respondent challenged Dr Morrison’s view on this.  Notwithstanding all of the foregoing her evidence was that RSH continued to experience toileting problems continued throughout the period the child was in her and her husband’s care until removal in March 2014.

[52]      In relation to the other three children the first respondent’s evidence was that there were no particular difficulties in looking after them.  She stated that she complied with all advice given to them by both social workers and school teachers in relation to the care of these children.

[53]      In relation to contact the tenor of the first respondent’s evidence was that this always worked well.  She said that the children were always happy to see her and her husband.  She and her husband interacted well with the children.  She brought them water and snacks as requested by supervisors of contact.  When she was told that the type of food she was bringing was inappropriate she changed what she bought and complied with requests made by supervisors in this regard.

 

(iii) Second Respondent
[54]      The second respondent gave evidence on his own behalf.  He also adduced evidence from Professor David Cooke, Professor of Psychology at the University of Bergen, Barbara Knight, SafeGuarder and Dr Kirsty Dalrymple, consultant clinical psychologist.

[54]      The second respondent’s evidence was given in an affidavit dated 11 May 2016[88] and he was cross‑examined on this document.  The tenor of this evidence broadly corroborated that given by the first respondent.  He confirmed that RSH was the most problematic of his three children to raise, and this because of the difficulties experienced in relation to his toileting.  He indicated no particular difficulties in relation to the parenting of the other children.  He accepted that he had disagreements with Dr Morrison in relation to the cause of RSH’s toileting problems.  His evidence was that he followed advice given to him by social workers and teachers.  He accepted that his relationship with Ms Contreras was difficult.

[55]      Professor Cooke was instructed to comment on the psychological reports prepared by Mr Jones and in particular to consider the methodology and conclusions reached in those reports.  His focus on the basis of his instructions was “… to consider issues relating to the psychometric evidence on which Mr Jones based his opinion of [the second respondent].”  He gave his views on these matters in a report dated 5 September 2016 which he spoke to in evidence.[89]  Professor Cooke’s evidence was that the methodology adopted by Mr Jones in conducting his psychometric assessment of the second respondent was inadequate and flawed.  He stated that in terms Mr Jones’ report purported to be a risk assessment of the second respondent based on intelligence and personality testing.  Professor Cooke explained in detail why the correct methodology was not followed and what would be required before a psychometric assessment with conclusions could be accepted as legitimate.  I need not dwell on the details of Professor Cooke’s criticisms of Mr Jones’ psychometric assessment of the second respondent because counsel for the petitioners accepted before submissions that having heard Professor Cooke’s evidence and considered his report she could not properly rely upon Mr Jones’ evidence on this aspect of matters.

[56]      Barbara Knight was the children’s Safeguarder.  She prepared a report which she spoke to in evidence.  She had observed a contact session between the respondents and the children.  Her brief evidence was that on the basis of this observation there were some positive aspects so far as all of the children were concerned in contact with the respondents.

[57]      The last witness for the second respondent was Dr Kirsty Dalrymple, consultant clinical psychologist.  Dr Dalrymple produced two reports, the first dated 25 May 2016[90] the second dated 11 May 2017.[91] 

[58]      Dr Dalrymple’s instructions prior to the preparation of the first report was to provide a psychological opinion as to whether the evidence of the petitioners, if determined to be correct, suggested it would be harmful to the children to return to the full time care of the respondents.  There were a number of ancillary questions which Dr Dalrymple required to consider directed at eliciting her opinion on questions as to whether permanence orders with authority to adopt would promote the welfare of the children and whether direct or indirect contact with the parents in the event of the granting of Permanence Orders would be in the best interests of the children.  In order to inform her opinion Dr Dalrymple was provided with a number of documents, all of which are listed in her report.  She also conducted interviews with both respondents and with the child RSH who was accompanied at the interview with a familiar adult, namely his head teacher. 

[59]      All the opinions expressed in the report by Dr Dalrymple were predicated on the hypothesis that the petitioners’ evidence on parental care, or lack thereof, were proven to be true.  On that hypothesis Dr Dalrymple concluded that the most appropriate way to promote stability and welfare for RSH would be the granting of a permanence order without the authority to adopt.  In relation to the other three children Dr Dalrymple’s view, on the same hypothesis, was that the granting of a permanence order with authority to adopt would be the most appropriate and likely option to promote the stability and welfare of the children.  In relation to contact Dr Dalrymple expressed the view, again on the same hypothetical basis, that there should only be indirect contact for all the children. 

[60]      Dr Dalrymple’s second report addressed a different issue and was directed at assessing the current functioning of the child RSH.  This report was commissioned by the second respondent’s agents at a late stage in these proceedings and in the following circumstances.  In late 2016 in response to concerns about the child RSH’s development medical testing was conducted on the child to determine whether he suffered from a chromosomal disorder.  As a result of this testing the child was diagnosed as having a genetic disorder, specifically of 15q13.3 duplication syndrome.  On being informed of this diagnosis both respondents sought advice as to whether the genetic disorder could provide a causative explanation for the child’s behavioural problems.  A report, with subsequent addendum letter, from a consultant clinical geneticist, Dr Ian Ellis was obtained.[92]  The conclusions of the report were that on the balance of probabilities RSH’s behavioural difficulties were either caused or contributed to by the aforesaid condition from which he suffered.  The report and addendum were the subject of a second Joint Minute between the parties which agreed that the documents should be taken and admitted into evidence as Dr Ellis’s evidence in chief.[93]  Dr Ellis’s views on these documents are unchallenged. 

[61]      The purpose of Dr Dalrymple’s second report was to provide a psychological assessment of the child’s current functioning having regard to the knowledge of the genetic disorder from which he suffered and the consequences of that as reported by Dr Ellis.  Dr Dalrymple’s conclusion on this issue was that RSH had “…significant pre-disposing vulnerabilities and slower development”, his deficits could “… challenge the most resourceful parent” and that his care and upbringing would involve “significant multiagency service input.”[94]  Dr Dalrymple’s overall conclusion was that the child’s “… presentation is likely to be in part a consequence of his genetic condition.”  She considered that he displayed “acute sensitivity to his environment” and that this consideration would require to form part of any analysis of his needs.[95]

 

Submissions
[62]      As already recorded there was no material dispute between the competing parties in relation to the law applicable to the evidence in this case.  In dealing with the submissions of parties I therefore need not reiterate what I have already said in relation to the applicable law. 

 

(i)         Petitioner
[63]      In relation to the petitioners’ submissions on the evidence the background is the Grounds of Referral made in March 2014 in relation to all four children.  The Grounds of Referral are identical for each of the children.[96]  Ground 1 was that the children had, or are likely to have, a close connection with a person who has committed a Schedule 1 offence.  The second Ground of Referral was that the children were likely to suffer unnecessarily, their health or development were likely to be seriously impaired, due to lack of parental care.  The supporting facts of Ground 1 are reliance on a Schedule 1 conviction against the maternal grandmother of the children who it was said continued to have contact with them.  In support of the second Ground the supporting facts stated that all four children were exposed to poor levels of parenting by the respondents, that the respondents’ parenting style could be harsh, particularly towards RSH, that on occasions there was a lack of adequate control or boundaries, that the respondents struggled to take advice from professionals regarding parenting strategies or healthcare advice, that the respondents were suspicious and at times openly hostile towards social work personnel, that on occasions the family home was cluttered, cramped and unclean and that the first respondent had a learning disability which impacted upon her parenting capacity and required assessment. 

[64]      In developing these matters on the basis of the evidence heard in the Proof, counsel for the petitioners firstly accepted that the section 1 conviction of the children’s maternal grandmother was of considerable antiquity and, further, acknowledged that there was a lack of evidence of continuing contact by that person with the children.  Further evidence heard by the court in relation to various matters which might raise concerns about sexual abuse were accepted by counsel as no more than innuendo.  The submission of counsel in relation to these matters was at the end of the day that this court was “not being asked to make any finding in relation to these charges which are unproved and are referred to simply on the basis that the Social Work Department were aware of them.” 

[65]      In relation to the second Ground of Referral and the supporting facts counsel developed seven separate arguments said to be based on the evidence.  These were that the respondents did not take medical advice, particularly from the consultant paediatrician in relation to the toileting problems experienced by RSH.  There was, secondly, criticism of the home conditions found by Ms Bruce and Ms Contreras.  The third argument was that the respondents were very negative to advice given to them and refused to accept the same.  In this regard reliance was again made on the advice tendered by the consultant paediatrician, Dr Morrison.  There was also reliance on the fact that at least initially the respondents blamed the children’s nursery for problems they were experiencing.  The fourth argument concerned behavioural problems with RSH and his toileting issues.  Fifthly, reliance was made on what was said to be harsh or hostile and neglectful parenting by the respondents.  Reliance here was made on the evidence of Ms Bruce and Ms Contreras.  The sixth argument was of alleged difficulties in the relationship between the two respondents as parents.  Reliance was made in this regard on the evidence of Ms Bruce who spoke to the second respondent speaking inappropriately to the first respondent in front of the children.  The seventh argument was that the respondents did not engage with the Social Work Department and were, further aggressive towards them.  Reliance was made on the evidence of Ms Bruce and Ms Contreras and Ms Purdie. 

[66]      Beyond these matters counsel for the petitioners relied on the report of Mr Jones.  It was expressly accepted that those parts of Mr Jones’ report in which he reported to diagnose the second respondent as suffering from a personality disorder and that he constituted a risk to the children could not be relied upon.  The remainder of the report however was relied upon.  It was further submitted that the reports of Dr Dalrymple were of assistance to the petitioners as demonstrating the unsuitability of returning the children to the care of the respondents. 

[67]      The last line of argument was that in relation to all four children their presentation had improved since they had been accommodated.  In relation to RSH it was submitted that the evidence showed that he had made significant developmental gains since being accommodated.  Whilst he continued to have toilet accidents and challenging behaviour neither of those features was of the extent that had been exhibited before he was accommodated.  In relation to the other three children there had been progress in their development since being accommodated. 

[68]      Having regard to all the foregoing the submission of the petitioners was that permanence orders should be granted in respect of all four children.  The primary position in relation to contact is that from the evidence it was not beneficial to the children and it should be stopped.  In the event that that submission was not accepted the submission was that contact should be restricted to indirect contact. 

 

(ii)        Respondents
[69]      In relation to the respondents whilst I was favoured with separate submissions from each there was, perhaps not surprisingly, a very considerable overlap in the submissions.  I consider that having regard to that feature it is appropriate to deal with the submissions essentially as one, highlighting any differences where necessary and appropriate. 

[70]      It was submitted that both respondents were credible and reliable witnesses.  Neither respondent accepted that the parenting provided by them was not “good enough”.  They both maintained that they had warm and loving relationships with their children.  They both accepted that as a result of impecuniosity there were constraints in relation to the accommodation, clothing and material possessions they could provide for the children.  This was most acutely seen in an acceptance by both respondents that the house they occupied, which they owned, was small and, not the witnesses’ words, sub-optimal for the accommodation of two adults and four children.  Their evidence was however that they had made efforts to obtain alternative accommodation by speaking to the local authority about obtaining a council let.  The unchallenged evidence was that they had been told there was a waiting list of many years before it would be likely they could be accommodated.  In relation to material possessions there was an acceptance that the children used clothing which had previously been worn by their elder siblings.  It was accepted that, on occasion, the children’s clothing might be tight fitting but it was stated that when this was drawn to their attention they took steps to rectify and remedy the position.  Neither respondent accepted that there were any difficulties in their relationship or that they argued in front of the children.  Both respondents accepted that their relationship with some social workers was difficult.  In that regard the second respondent accepted that he did not get on with Ms Contreras.  Both respondents also accepted that there was advice tendered to them that they did not agree with.  The second respondent in particular made it clear that he did not comply with advice with which he did not agree.  The position of both respondents was that this attitude did not display wilful disregard to advice but was based upon legitimate and objectively justified concerns with certain advice tendered to them.  In this regard criticism was made in evidence about the way Dr Morrison tendered advice to the respondents about RSH’s toileting problem. 

[71]      Beyond this there was criticism of the way that the petitioners’ Social Work Department had approached this case.  In particular there was a challenge to the credibility of Ms Gill and Ms Contreras in some of their evidence.  Counsel for the first respondent submitted that the petitioners, and in particular the witnesses already referred to, grossly overstated and exaggerated the respondents’, particularly the first respondent’s, alleged inability to care for the children. 

[72]      Some reliance was placed upon RSH’s chromosomal disorder.  It was submitted that on the evidence of Dr Ellis the  disorder, on the balance of probabilities, caused or at least contributed to RSH’s behavioural difficulties.  Whilst it was accepted that this diagnosis was only made at a late stage, between the first and adjourned diets of Proof, it was said that, first, the potential for RSH to have a chromosomal disorder should have been appreciated by the petitioners at an earlier stage.  Had this happened and an earlier diagnosis been obtained then the management of the case might have proceeded on a different basis.  Second, even if there was no reason why the petitioners should have been alerted to and sought a diagnosis of a potential genetic disorder at an earlier stage that factor was now significant and had to be considered.  In this regard reliance was placed upon the evidence of Dr Dalrymple, particularly the views she expressed in her second report.[97] 

[73]      Both respondents challenged the evidence of Mr Jones.  The court was invited to disregard his evidence.  This was on the basis that Mr Jones’ diagnosis of a personality disorder in respect of the second respondent did not comply with best practice.  Similar criticisms were levied in relation to what Mr Jones characterised as a risk assessment.  These criticisms were ultimately accepted by the petitioners who did not found upon those aspects of Mr Jones’ evidence.  The respondents contended that the accepted errors in methodology by Mr Jones in those parts of his report should cause the court to doubt the reliability of other aspects of his report.  It was further submitted that in any event Mr Jones’ report was not independent and his methods were questionable.  For all these reasons I was invited to place no reliance on the views expressed by Mr Jones. 

[74]      In relation to the issue of contact both respondents founded on concessions made by various social workers responsible for the case who had observed contact that, at least on some instances, there were positive signs in contact.  It was also noted that Ms Knight, the Safeguarder, had observed a number of positive signs in the contact session she had witnessed between the respondents and the children. 

[75]      Having regard to these arguments the primary position of the respondents was that the petitions should be refused.  Failing that the respondents’ position was that there should be direct contact.  In the event that the court did not agree with that conclusion the submission was that indirect contact should be permitted. 

 

Reliability and Credibility
[76]      I require to deal with issues of reliability and credibility.  Both respondents challenged the reliability and credibility of the petitioners’ witnesses Gill Bruce, Janice Contreras and Paul Jones.  The petitioners challenged the reliability and credibility evidence of both respondents. 

[77]      So far as the reliability and credibility of the petitioners’ two social worker witnesses Gill Bruce and Janice Contreras are concerned, I would observe that these persons both spoke to various reports they had prepared throughout the period they had professional involvement in the cases involving the respondents’ four children.  In addition they each spoke to the, relatively few, occasions where they had personal contact either with the respondents or any of the four children.  The evidence they gave, both by way of affidavit and supplemented by oral evidence, was either supported by documents they had previously prepared or a recount of what they state they had observed during face to face meetings.  The challenge to these witnesses’ credibility did not disclose any objective reason to entitle me to doubt the credibility of anything they said.  The issue of reliability is, in my view, slightly more difficult as that no doubt depends at least in part in what I judged of these witnesses demeanour when giving evidence and whether it was supported by other evidence in the case.  Insofar as demeanour is concerned there was nothing in the way the witnesses gave evidence which would cause me to have any concerns in relation to their candour.  Put shortly I considered they were attempting to the best of their ability to either recount events they had observed accurately or, in relation to matters of impression, to give a true and accurate account of what they considered to be the situation.  In relation to contrasting and comparing their evidence with other evidence in the case the situation is slightly different.  By and large the evidence of both Ms Bruce and Ms Contreras was supported by the other social work witnesses, albeit there were relatively few occasions when there was direct overlap in these witnesses’ evidence and the evidence of other witnesses.  Their evidence did not however correspond with that given by the respondents in relation to certain important matters pertaining to the welfare of the children.  In relation to that aspect of matters it is quite clear that, put bluntly, these witnesses had different views of certain events, most importantly the occasion in March 2014 when social workers visited the respondents’ house and, on the same day, when they returned in the evening to remove the children under and in terms of a Child Protection Order.  The account given by Ms Bruce and Ms Contreras of that event simply do not match in certain important aspects the evidence given by the respondents.  My view in relation to this matter is that the events of that day were highly charged.  Ms Bruce and Ms Contreras were concerned about the welfare of the children.  As a result of what Ms Contreras observed at the first visit in the afternoon of the day in question she had felt compelled to consult with her superior, Ms Bruce, and ultimately a decision was taken to seek a Child Protection Order from the sheriff.  When that Order was exercised in the course of the evening it is, again in my view, tolerably clear that the atmosphere in the house from which the children were to be removed would be likely to be tense.  Having regard to that factor, I am satisfied that there is scope for varying interpretations of events depending on the viewpoint of the witness.  I consider it entirely possible that Ms Bruce and Ms Contreras might have had one impression of the events, and recounted that in their evidence, whilst at the same time a different interpretation could have been put on events by the respondents.  Having regard to all these considerations I am not satisfied that the respondents’ challenge to the reliability and credibility of Ms Bruce and Ms Contreras is justified.  I consider these witnesses were reliable and credible and, further, I am satisfied that they were trying to assist the court to the best of their ability when giving evidence.  That conclusion does not however preclude me from rejecting any piece of their evidence which I do not consider justified in the overall context of the case.  I consider there is scope for me, if I consider it justified on the totality of the evidence, to conclude that they may have been in error in some aspects of their evidence. 

[78]      Having regard to what I have just stated in relation to the petitioners’ witnesses, Ms Bruce and Ms Contreras, I can be relatively brief in relation to the issue of the reliability and credibility of the respondents.  Both these persons gave evidence by way of affidavit supplemented by an examination-in-chief and cross-examination.  There was nothing in the way they gave their evidence or their demeanour while giving evidence which suggested to me they were doing other than attempting to be truthful.  It is plain, and entirely understandable, that they were extremely emotional about the subject matter of their evidence.  It is equally plain, and again understandable, that their views in relation to their involvement with the petitioners since 2012 were influenced by what they perceived, rightly or wrongly, as an unwarranted interference with their domestic and private family affairs.  I accept that, as was advanced by the petitioners, both respondents may have had incomplete insight into difficulties they were experiencing in the upbringing of their children.  This is particularly focused in relation to the undoubted toileting issues which they experienced with the child RSH.  In that regard it is tolerably clear that, particularly in relation to the second respondent, he was unwilling to accept views apparently expressed to him about the cause of this issue from Dr Morrison, a consultant paediatrician.  It is to be noted that no evidence was adduced from Dr Morrison.  The extent of the court’s knowledge of Dr Morrison’s views were to be found in a letter which was spoken to in evidence by a number of witnesses.[98]  Whilst this provides some insight into the difficulties arising from RSH’s toileting problems it is not the full picture, is only the view of its author and is less satisfactory than if the court had had the benefit of the doctor’s direct evidence which could have been the subject of cross examination.  Further, there was some evidence that, again particularly the second respondent, on occasion expressed views to school staff which did not correspond with advice they were seeking to tender to him.  In relation to both these matters my conclusion on the evidence is that there is nothing to enable me, to justify, a finding that the respondents were being wilfully obstructive in adopting attitudes they did towards professional persons.  Both respondents were prepared to accept that on occasions they expressed views contrary to those being expressed to them by professionals.  There is no reason why persons in the position of the respondents require to automatically accept advice tendered to them, providing objection to or resistance to advice is done reasonably and with some objective basis.  In this case the respondents both accepted that there were difficulties in their parenting.  Their position was that it was caused by the difficulties in RSH’s toileting and the impact that had on the other children and, beyond that, on their impecuniosity and the constraints that put upon them in providing optimum housing, optimum clothing and other material benefits for their children.  Having regard to all those considerations I have concluded that the petitioners’ criticisms of the reliability and credibility of the respondents are unjustified.  I am satisfied that they are reliable and credible witnesses who were attempting to tell the truth.  As with the petitioners’ witnesses that does not however preclude me from rejecting any part of their evidence which I do not consider was, having regard to the totality of the evidence, properly established. 

[79]      The position of Mr Jones, the consultant clinical psychologist who gave evidence on behalf of the petitioners, is somewhat different.  As already noted two parts of his report, those dealing with the diagnosis of a personality disorder of the second respondent and a risk assessment of that person, were not relied upon by the petitioners.  In respect to those parts of his evidence counsel for the petitioners expressly accepted that the criticisms levied by Professor Cooke were justified and Mr Jones’ report could not be relied upon in regard to those aspects of his evidence.  The submission on behalf of the respondents was that these admitted errors in the evidence of Mr Jones tainted the rest of his evidence and I should therefore not regard him as a reliable and credible witness. 

[80]      In my opinion there is considerable force in the submission, even in the relatively general way it was presented.  If reliance on part of an expert’s report is departed from by counsel by reason of an accepted flaw in the methodology adopted by the expert in preparation of the report I consider that the court would be bound to consider the rest of the report with care lest any part thereof defended and placed reliance on the flawed part and could therefore be influenced in an unfair or improper way.  When that exercise is carried out in the present case I consider it becomes clear that Mr Jones’ psychometric assessment of the second respondent which resulted in him reaching the conclusion that the second respondent suffered from a personality disorder and that he represented a risk to others has influenced the conclusions he reaches on that person’s willingness to accept advice, the risk he may present to his children and flowing therefrom his ability to care for his children.  Mr Jones’ view on this matter also influences his view of the ability of the first respondent to care for the children.  Beyond that I note that in his conclusions Mr Jones also raises the issue of allegations of sexual abuse by members of the respondent’s family which he thinks “cannot be dismissed”, but that in a situation where counsel for the petitioners accepts there is no evidence which would entitle him to found upon such allegations.  All these issues, in my view, have influenced the opinion that Mr Jones came to.  In these circumstances I do not consider that I can have confidence in the report.  I am not prepared to accept this report as reliable testimony.

 

Conclusions
[81]      In respect of each of the four children who are the subject of these petitions it is said that the parents, the respondents, are each unable to satisfactorily and properly care for the child and that this situation is likely to continue throughout childhood.  It is further submitted that it would be better for the child to be “claimed” by a new family and to live in a stable and supportive family unit for the rest of their life to develop their potential.  These propositions are founded, in each petition, on a relatively narrow factual basis.  The basis for the proposition has its foundation in the second ground of referral in relation to each child, that is that the children would be likely to suffer unnecessarily, and that their health and development would be likely to be seriously impaired, due to lack of parental care.  I should, for clarity, make it clear at this stage that the first ground of referral, the allegation of risk occasioned by alleged contact with a section 1 offender was departed from by counsel in the course of her submissions.

[82]      On the basis of the petitioners’ submission there were seven areas identified in the evidence where the concerns expressed in the second ground of referral could be seen.  On analysis there is a degree of overlap in the seven areas of concern.  Three of them related to alleged failures by the respondents to have regard to medical advice tendered to them in relation to the toileting problems experienced by the child RSH.  Unrelated to this is an alleged failure by the respondents to engage with the Social Work Department in relation to advice tendered in relation to parenting.  A third area of concern related to alleged difficulties between the respondents.  The final areas of concern were in relation to what was characterised as harsh, hostile or neglectful parenting and alleged difficulties in parenting on the part of the first respondent caused by her learning difficulties.  With the exception of the alleged failure to take heed of medical advice all these grounds were spoken to primarily by the petitioners’ witnesses Ms Bruce and Ms Contreras albeit augmented to some extent by the other social work witnesses who spoke to the circumstances of the children after they were taken into care and became looked after children.  The issues in relation to alleged failure to take heed of medical advice primarily rested upon information emanating from Dr Morrison, who as already noted did not give evidence.  

[83]      It is plain from the foregoing analysis of the nature of the submissions based on the evidence that with the exception of the medical advice issue the petitioners’ case is largely dependent upon the evidence of the social workers Ms Bruce and Ms Contreras. 

[84]      On examination of Ms Bruce’s evidence her direct contact with the respondents and the children was limited to an unannounced visit to the family home on 17 July 2013, a visit to the family home on 21 February 2014 and attendance at the family home on the 7 March 2014 when a Child Protection Order was exercised and the children taken into care.  Beyond this Ms Bruce derived information relative to the respondents and the children from a health visitor, from considering views in a letter by Dr Morrison and from social workers in the team for whom she was responsible.   

[85]      In addition to the visits to the respondent’s house when she accompanied Ms Bruce, Ms Contreras was present on a visit with another social worker on 23 January 2014 and at the first meeting in the respondent’s house on 7 March 2014.  On 7 March 2014 she was accompanied by a health visitor, Fiona Davidson from whom evidence was not adduced.  She was also present on the second occasion on that date when the children were removed from the house in implementation of the Child Protection Order. 

[86]      On the basis of the foregoing, it would accordingly appear that the direct knowledge of both Ms Bruce and Ms Contreras as to the matters which underlie four of the grounds of concern relied upon by the petitioners was derived from a very limited number of visits to the respondent’s house, the last of these on the evening of 7 March 2014 being for the sole purpose of exercising a Child Protection Order.  On the basis of these visits these witnesses were able to speak to home conditions which might fairly be characterised as untidy, cramped and in some areas unclean.  Whilst I acknowledge that care requires to be exercised when making what is inevitably a subjective assessment of another person’s evaluation of domestic conditions it does appear to me that a reasonable categorisation of the conditions in the respondents’ house on the occasion of their visits by these witnesses would be that they were not perfect, and could no doubt have been improved, but that they could not be regarded as being at the more extreme end of circumstances of deprivation.  The respondents’ evidence that home conditions were less than perfect as a result of impecuniosity rather than wilful neglect on their part may quite possibly be regarded as an objective assessment of the situation in relation to the home.

Beyond this I would also point out that there was very little evidence to link any deficiencies in home conditions with actual harm occasioned to any of the children.  RSH clearly had and has developmental delay but, on the balance of probabilities, on the basis of Dr Ellis’s uncontested evidence that could be explained by his now diagnosed chromosomal abnormality.  There was no evidence of any particular difficulty in relation to CMH and MRH.  There may be some evidence of developmental delay with AJH and the petitioners did seek to link this to lack of stimulation when in the respondents’ care but, in my opinion such evidence as there was on this subject was insufficient to prove a causal connection between deficiencies in the care provided by the respondents and developmental delay.

[87]      In relation to the other matters relied upon by the petitioners the evidence may, in my view, fairly be categorised as very thin.  There was limited evidence of harsh, hostile or neglectful parenting.  Such evidence as there was in this regard derived from what Ms Bruce and Ms Contreras observed on their, as already noted, limited visits to the respondents’ house.  In relation to this evidence I firstly observe that the respondents viewed what they said and did on those occasions differently.  Second, I would observe that, as I have already stated, these occasions were likely to have been highly charged and emotional for the respondents.  I consider some allowance must be made for this factor.  Third, and probably most significantly, as objective an interpretation as possible must be made of the evidence of these occasions.  In that regard I fully accept that social workers require to be watchful for inappropriate behaviour on the part of the parents or distress in the children when observing interaction between parents and children for whom they have concerns.  In the instances with which I am concerned in this case there was no suggestion of inappropriate physicality by parent to child.  The complaint, the cause of concern, to the social worker witnesses was what was said by the parents and, in my view even more difficult to evaluate, the way in which things may have been said by the parent.  When judged in that way the observations of the social workers may well have merited intervention, but again in my view, probably intervention at a lesser level than permanent deprivation of the respondents’ parental rights.  It seems to me that the difficulties that the respondents were experiencing in parenting these children may have been appropriately addressed by more intensive efforts to assist the respondents. 

[88]      So far as concern arising from the first respondent’s ability to adequately parent the children is concerned there was in my view essentially no evidence.  It was agreed by all parties that the first respondent did have a learning disability, she accepted that herself when giving evidence.  The petitioners’ submission was that this disability impacted upon her parenting ability and required assessment.  I am also bound to observe that I had the opportunity to observe the first respondent give evidence.  Subject to the caveat that I am not qualified to express an opinion of the extent of the first respondent’s disability and any impact it may have on her ability as a parent, I can state that she performed perfectly satisfactorily as a witness.  I have already held her credible and reliable.  Her demeanour was appropriate and she answered questions appropriately.  In short, absent having being told she had a learning disability, I would not have detected that from the way she gave evidence.  Having regard to these considerations I do not consider this submission to have merit.

[89]      The evidence of any difficulties that may have existed between the respondents was both indirect and, on any view, might be regarded as relatively insubstantial. 

[90]      So far as the medical issues and alleged failure to take advice in relation to RSH’s toileting is concerned there was no direct evidence from an appropriately qualified medical practitioner.  In the absence of direct evidence from a medical practitioner who had been involved in the case of RSH at the relevant period, the court was left in a situation where the only direct evidence available was from the respondents.  Their evidence contradicted the information emanating from Dr Morrison.  The respondents both maintained that whilst they did not necessarily agree with views expressed to them by Dr Morrison they followed advice given by her.  To this situation there must be added consideration of the evidence which became available late in the day, between the initial diet of Proof and the adjourned diet of Proof, which established that RSH suffered from a chromosomal disorder which, on the balance of probabilities, predisposed him to behavioural difficulties.  Whilst this was not appreciated at the time when Dr Morrison was treating the child and tendering advice to the respondents it does provide an explanation for RSH’s difficulties, may explain their persistence and, further, may explain why advice given by Dr Morrison designed to alleviate the child’s toileting issues was not effective.   With the benefit of this evidence I do not consider that it can be said that the petitioners have proved that in relation to the persistence of RSH’s toileting problems there was a wilful disregard of medical advice by the respondents.

[91]      The statutory test which must be surmounted before a Permanence Order can be made is clear.  The court must be satisfied that as a matter of fact the child’s residence with, in this case the respondents, “… is, or is likely to be, seriously detrimental to the welfare …” of the child.[99]  If that test is satisfied then it must be established that “… it would be better for the child that the order be made than that it should not be made.”[100]  On the basis of all the foregoing I am not satisfied that the petitioners have satisfied the tests in section 84(3) and (4) of the 2007 Act.  The petitioners plainly had concerns regarding these children.  These concerns were however based to a significant extent on material about which they had no direct knowledge, for example neighbours’ complaints, the substance of which were not investigated, placed reliance on other professionals ‘advice, for example Dr Morrison’s letter, and on matters about which the evidence was, bluntly, insufficient, unsubstantiated and ultimately not relied upon, the “innuendo” about sexual abuse concerning the second respondent and reliance on the Schedule 1 conviction of the first respondent’s mother falling into this category.  Where there was direct evidence, for example in relation to the housing conditions, it was in my view limited.  It does not appear that much consideration was given by the petitioners as to steps which might have been taken to assist the respondents in addressing and solving these issues.  The decision appears to have been made simply to move towards permanence.  In my view this was precipitate and unjustified.  In these circumstances I am not prepared to grant any of the orders sought in these petitions. 

[92]      I will therefore refuse each of the petitions, and given that I am not prepared to grant Permanence Orders in respect of these four children I need not, go any further.  The children will remain under the supervision of the Children’s Reporter and that body will be responsible for determining the issue of contact.  I will reserve all questions of expenses.

 



[1] Affidavit dated 2 May 2016 No 6/49 of process

[2] Preliminary Psychological Report dated 22 January 2014 No 6/24 of process, Psychological Report dated 19 August 2014 no 6/28 of process

[3] Affidavit dated 4 May 2016 No 6/52 of process and Affidavit dated 10 March 2017 No 6/70 of process

[4] Affidavit dated 9 May 2016 No 6/55 of process

[5] Affidavit dated 2 May 2016 No 6/50 of process

[6] Affidavit dated 6 May 2016 No 6/56 of process

[7] Affidavit dated 9 May 2016 No 6/53 of process

[8] Affidavit dated 9 May 2016 No 6/54 of process

[9] No 41 of process

[10] Affidavit dated 11 May 2016 No 28 of process

[11] Affidavit dated 11 May 2016 No 25 of process

[12] Psychological Commentary dated 5 September 2016 No 23/60 of process and Psychological Commentary dated 5 October 2016 no 23/66 of process

[13] Report No 6/45 of process

[14] Report dated 11 May 2017 No 23/71 of process

[15] Affidavit dated 10 May 2016 No 26 of process

[16] No 6/49 of process at paragraph 3

[17] No 6/49 of process at paragraph 4

[18] No 6/49 of process at paragraph 6

[19] No 6/4 of process

[20] No 6/5 of process

[21] On page 1 it states 06/02/13 as “Date Assessment Commenced” on page 2 Miss Brooksbank recorded that she was allocated the case on 8 February 2013

[22] No 6/49 of process paragraph 10

[23] No 6/49 of process paragraph 11

[24] No 6/49 of process at paragraph 12

[25] No 6/49 of process at paragraph b

[26] No 6/10 of process

[27] No 6/49 of process at paragraph 15

[28] No 6/49 of process at paragraph 15

[29] No 6/49 of process at paragraph 18

[30] No 6/49 of process at paragraph 18

[31] No 6/49 of process at paragraph 22

[32] No 6/49 of process at paragraph 22

[33] No 6/55 of process at paragraphs 3-7

[34] No 6/55 of process at paragraphs 3-7

[35] No 6/55 of process at paragraph  7

[36] No 6/55 of process at paragraph  8

[37] No 6/55 of process at paragraph 13

[38] No 6/55 of process at paragraph 13

[39] No 6/55 of process at paragraph 14

[40] No 6/55 of process at paragraph 14

[41] No 6/55 of process at paragraph 14

[42] No 6/55 of process at page 11

[43] No 6/55 of process at paragraph 15

[44] No 6/55 of process at paragraph 15

[45] No 6/55 of process at paragraph 15

[46] No 6/55 of process at paragraph 16

[47] Affidavit of James Buchanan No 6/52 of process at paragraph 4

[48] No 6/55 of process at paragraph 17

[49] No 6/55 of process at paragraph 17

[50] No 6/50 of process at paragraph 5

[51] No 6/50 of process at paragraph 6

[52] No 6/50 of process at paragraph 10

[53] No 6/37 of process at paragraph 4

[54] No 6/52 of process at paragraph 5

[55] No 6/52 of process at paragraph 5

[56] Paragraph 24 of Joint Minute No 36 of process

[57] No 6/52 of process at paragraph 9

[58] No 6/52 of process at paragraph 10

[59] No 6/52 of process at paragraph 10

[60] No 6/52 of process at paragraph 10

[61] No 6/52 of process at paragraph 10

[62] No 6/53 of process at paragraph 11

[63] No 6/52 of process at paragraph 11

[64] No 6/52 of process at paragraph 21

[65] No 6/52 of process at paragraph 22

[66] No 6/56 of process at paragraph 4

[67] No 6/56 of process at paragraph 4

[68] Joint Minute No 36 of process at paragraph 31

[69] No 6/56 of process at paragraph 18

[70] No 6/56 of process at paragraph 18

[71] Joint Minute No 36 of process at paragraph 10

[72] No 6/53 of process at paragraph 4

[73] No 6/53 of process at paragraph 4

[74] No 6/53 of process at paragraph 5

[75] No 6/53 of process at paragraph 11

[76] No 6/24 of process

[77] No 6/28 of process

[78] No 6/28 of process at paragraph 3.2

[79] No 6/28 of process at paragraph 4

[80] No 6/28 of process at paragraph 4

[81] No 6/28 of process at section 6.10 at pages 30 ‑ 36

[82] No 6/28 of process at paragraph 7.14

[83] No 6/28 of process at paragraph 7.17

[84] No 6/28 of process at paragraph 7.18

[85] No 6/28 of process at paragraph 7.19

[86] No 6/28 of process

[87] No 6/28 of process at page 6

[88] No 6/25 of process

[89] No 23/60 of process

[90] No 7/8 of process

[91] No 23/71 of process

[92] Report dated 6 March 2017 No 7/2 of process, Addendum No 7/8 of process

[93] No 43 of process

[94] No 23/71 of process at page 10

[95] No 23/71 of process at page 11

[96] A Grounds of Referral for RSH are No 6/18 of process, for CMH they are 6/19 of process, for MRH they are 6/20 of process and for AJH they are 6/21 of process. 

[97] No 23/71 of process.

[98] No 6/4 of process

[99] Section 84(5)(C)(ii) of the 2007 Act

[100] Section 84(3) of the 2007 Act