[2014] SCLIV2
SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
Judgement of
Sheriff Douglas A Kinloch,
Advocate,
In the Petitions of
THE CITY OF EDINBURGH COUNCIL,
A Local Authority in Terms of
Section 2 of the Local Government Etc (Scotland)
Act 1994 and having an office at Waverley Court,
East Market Street, Edinburgh EH8 8BG
Petitioners for Permanence Orders in respect
of the children AB
and CD
against
WX
FIRST RESPONDENT
and
YZ
SECOND RESPONDENT
Livingston 30 December 2013
The Sheriff having resumed consideration of the cause,
FINDS THE FOLLOWING FACTS ADMITTED OR PROVED:
1. The Petitioner is The City of Edinburgh Council, a local authority with an office at Waverly Court, Level 3:1, 4 East Market Street, Edinburgh EH8 8BG.
2. The children are AB and CD. AB is 11 years and 6 months old. CD is 10 years old. Both children reside with Mr and Mrs T in West Lothian, Scotland in terms of a Compulsory Supervision Order made by the Children's Hearing.
3. Neither AB nor CD have ever been married or been a civil partner.
4. Both children are subject to a Compulsory Supervision Order from the Children's Hearing.
5. The First Respondent is WX. She is the children's mother. She resides at an address in England which she wishes to maintain as confidential.
6. The Second Respondent is YZ. He is the father of the children. He resides at an address in Edinburgh. He does not have parental responsibilities and parental rights in respect of either child. He has not sought parental responsibilities and parental rights in respect of either child.
7. The First and Second Respondents were not married at the time of the birth of either child and have not married since.
8. The First Respondent has the right to have the children living with her or otherwise to regulate their residence.
9. The children first came to the attention of the Petitioners following a telephone call on 29 November 2006 from the children's health visitor raising general child care concerns.
10. At the time the children first came to the attention of the Petitioners both the First and Second Respondents were abusing drugs including heroin and crack cocaine.
11. The First and Second Respondents were cohabiting and had the children living with them.
12. The First Respondent contacted the Petitioner's Emergency Social Work Service on 28 December 2006 and advised staff that the Second Respondent had wrecked the house following an argument. Lothian and Borders Police attended the house and although drug taking paraphernalia was discovered in a drawer with a plastic child lock, no immediate protective action was required that evening. The Second Respondent stated that the First Respondent had opened a new packet of needles so that they would be visible when police attended the house and that the needles would not ordinarily have been in view. The First Respondent gave the needles to the police officers in attendance. The First Respondent telephoned the Petitioners requesting that AB and CD be accommodated at around 1815. On being asked if there were any relatives who could look after the children that night, the First Respondent said there were not. She said she originally came from Dundee but there were no relatives there. She said her mother and father were not around any longer and that there were no friends, neighbours or relatives who could assist that night. She said the Second Respondent's relatives were unsuitable and suggested there had been some form of abuse within the family so she was not willing to consider them as an option as she did not trust the Second Respondent's family. Following the incident the Petitioner's South West duty service had a mixed level of success in engaging with the family. Some appointments were cancelled. The First and Second Respondents failed to attend some appointments. Some contact was made during home visits.
13. The Reporter to the Children's Hearing requested an Initial Enquiry Report on 11 January 2007. The Report noted that there were "serious concerns about AB and CD's wellbeing and safety at this time, particularly given the fact that the children had not recently been seen."
14. A Children's Hearing was held on 22 February 2007. Grounds of referral in terms of section 52 (2) (c) of the Children (Scotland) Act 1995 (hereinafter "the 1995 Act") were put to the First and Second Respondents and referred to the Sheriff for proof. The grounds of referral, that the children were likely to suffer unnecessarily due to a lack of parental care, were established at Edinburgh Sheriff Court in April 2007 in the absence of the First and Second Respondents.
15. The children were made the subject of Supervision Requirements at a Children's Hearing on 11 July 2007. Neither the First nor Second Respondent attended the Children's Hearing.
16. The First and Second Respondents ceased to cohabit on the morning of 25 July 2007.
17. On 30 July 2007, the children were present when the Second Respondent was assaulted with a machete. The Second Respondent required emergency surgery as a result of the assault. The Second Respondent took the children to the home of his mother. When he attended hospital the Second Respondent's family made arrangements for the children to be cared for by his niece and her husband, Mr and Mrs R. AB told Mr and Mrs R that he had witnessed the assault and that "Daddy's dead". The Second Respondent lived with Mr and Mrs R and the children for around 6 months after July 2007.
18. The First Respondent repeatedly requested that the children be removed from the care of any of the Second Respondent's family.
19. The children resided with Mr and Mrs R from 2007 until 2011.
20. On 2 August 2007, the First Respondent indicated her intention to remove the children from the care of Mr and Mrs R. On 3 August 2007, a Child Protection Order was granted by the Sheriff. The Child Protection Order was continued by a Children's Hearing on 7 August 2007. On 15 August 2007, the Children's Hearing made the children subject to place of safety warrants.
21. Plans were made for the First Respondent to have supervised contact with the children three times per week. A Children's Hearing continued the place of safety warrants on 31 August 2007.
22. On 12 September 2007 a new social worker was allocated to AB and CD.
23. In or around September 2007, the First Respondent's attendance at contact with the children was erratic.
24. The children were again made the subject of Supervision Requirements at a Children's Hearing held on 21 September 2007. The Supervision Requirements included a condition of residence with Mr and Mrs R and conditions of supervised contact in respect of the children's contact with the First and Second Respondents. The condition anent the children's contact with the First Respondent specified that contact take place once per week for two hours.
25. An Initial Child Protection Case Conference was held on 30 November 2007. The children were not registered on the Child Protection Register.
26. A Children's Hearing held on 14 December 2007 continued the children's Supervision Requirements with conditions of contact with each of the First and Second Respondents for two hours each week supervised by the Petitioners.
27. Following an incident in early July 2008, the First Respondent was placed on a witness protection programme. The First Respondent was housed outside of Edinburgh and given police protection in advance of giving evidence at the High Court trial.
28. Between December 2007 and November 2008, the First and Second Respondents' attendance at contact with the children was erratic.
29. A Children's Hearing held on 28 November 2008 continued the children's Supervision Requirements and the conditions of contact. The First Respondent appealed the decision of the Children's Hearing.
30. A Children's Hearing held on 9 March 2009 continued the children's Supervision Requirements and made a condition of contact in respect of both children with the First Respondent for two hours, twice a month supervised by the Petitioners and with the Second Respondent for one hour each month supervised by the Petitioners.
31. In or about June 2009, the First Respondent ceased to be subject to the police protection programme prior to giving evidence in the High Court. The First Respondent had been living in Grangemouth latterly while the subject of police protection. She left Grangemouth and moved to reside in Inverness once she was no longer subject to the police protection programme.
32. In October 2009, Mr R was found guilty of driving offences, of being in possession of an offensive weapon and of contraventions of the Misuse of Drugs Act 1971. Mrs R told the Petitioners she had ended her relationship with Mr R. The children remained in the care of Mrs R.
33. The First Respondent requested that a Children's Hearing be arranged in or about October 2009. A Children's Hearing held on 26 November 2009 in response to the said request was continued due to the First Respondent's not being in attendance.
34. In December 2009, while living in Inverness, the First Respondent was admitted to hospital as a result of injecting heroin into her neck.
35. A Children's Hearing held on 21 January 2010 was continued due to the First Respondent not being in attendance.
36. A Children's hearing held on 17 February 2010 was continued.
37. At a Children's hearing held on 12 May 2010 the children's Supervision Requirements were continued with a condition of residence with Mrs R. As a condition the children's contact with the First Respondent was reduced to once every eight weeks supervised by the Petitioners.
38. The Petitioners' Permanency Panel registered the children for permanency on 29 June 2010.
39. In July 2010 the First Respondent was charged with speeding on the A9 road.
40. The First Respondent did not attend a Children's Hearing held on 29 September 2010.
41. The First Respondent was involved in a serious car crash in or about October 2010.
42. At a Children's Hearing held on 2 February 2011, a safeguarder was appointed.
43. A Children's Hearing held on 4 April 2011 was continued.
44. Mrs R was approved as a kinship carer by the Petitioners' Matching Panel on 13 April 2011. The recommendation was that Mrs R apply for a residence order in terms of section 11 of the 1995 Act. Mrs R made such an application.
45. A Children's Hearing held on 27 April 2011 was continued.
46. A Children's Hearing held on 11 May 2011 was continued.
47. A Children's Hearing arranged for 19 May 2011 was cancelled.
48. A Children's Hearing held on 8 June 2011 was continued.
49. A Children's Hearing arranged for 23 June 2011 was cancelled.
50. A Children's Hearing held on 5 July 2011 was continued.
51. A Children's Hearing held on 27 July 2011 continued the children's Supervision Requirements with a condition of residence with Mrs R. No conditions of contact were attached to the Supervision Requirement as the Children's Hearing were satisfied contact was being arranged informally and was supervised by Mrs R where necessary.
52. In September 2011 the children were left in the care of Mr R. Mr R was charged with assaulting his son, RR. RR, in his statement to police, said his father had been spending several nights in the family home. AB and CD confirmed Mr R had been staying over, sometimes for weeks at a time. They also said RR had been bullying them, particularly CD, and that he had on occasion put a pillow over CD's face and held it down
53. On 19 September 2011, Mrs T, the mother of Mrs R, offered to provide care for the children.
54. A Children's Hearing held on 3 November 2011 issued a place of safety warrant and specified that contact between the children and the First Respondent was to take place a minimum of once per month supervised by the Petitioners. Contact between the children and the Second Respondent was to take place a minimum of once per month. A safeguarder was appointed.
55. A Children's Hearing held on 13 December 2011 issued a place of safety warrant and specified that contact between the children and each of the First and Second Respondents was to take place a minimum of once per month unsupervised. The safeguarder's report was awaited.
56. A Children's Hearing held on 30 December 2011 issued a place of safety warrant and specified that contact between the children and each of the First and Second Respondents was to take place a minimum of once per month unsupervised. The safeguarder's report was awaited.
57. A Children's Hearing held on 20 January 2012 issued a place of safety warrant and specified that contact between the children and each of the First and Second Respondents was to take place a minimum of once per month unsupervised. The safeguarder's report was awaited.
58. At a Children's Hearing held on 10 February 2012 the children were again made subject to Supervision Requirements. A condition of residence with Mr and Mrs T was made. A condition of contact between the children and each of the First and Second Respondents was made providing for contact to take place a minimum of once per month unsupervised.
59. In or about February 2012 police were called to the First Respondent's home in Elgin. The First Respondent asked police to remove her mother and step father from her home following a domestic incident. The First Respondent moved to reside in England shortly thereafter.
60. The Petitioners' Kinship Approval and Matching Panel held on 29 May 2012 recommended that Mr and Mrs T be approved and matched as kinship carers for the children and that the Petitioners apply for Permanence Orders in respect of the children.
61. The decision of a Children's Hearing held on 7 June 2012 was successfully appealed by the First Respondent.
62. The First Respondent gave birth to her son, EF in June 2012.
63. A Children's Hearing held on 9 August 2012 continued the children's Supervision Requirements with a condition of residence with Mr and Mrs T. The condition of contact between the children and each of the First and Second Respondents was continued providing for contact to take place a minimum of once per month unsupervised.
64. A Children's Hearing held on 17 September 2012 provided advice supportive of the Petitions and continued the children's Supervision Requirements without variation.
65. The First Respondent lives in England with her son, EF, in a property with three bedrooms obtained by the First Respondent through a housing association as part of her intention to have the children returned to her care. The First Respondent has engaged well with social services in England. She has shown good parenting skills in her care of EF and statutory social work involvement with EF is not considered necessary by social services in England.
66. Katy Macfarlane was appointed as safeguarder at a Children's Hearing on 21st February 2013. Katy Macfarlane's report dated 24th April 2013 recommended that residential contact take place between the children and the First Respondent in England. Katy Macfarlane recommended that residential contact be introduced gradually.
67. The decision of a Children's Hearing on 11 July 2013 varied the contact conditions to specifically include one period of residential contact between the children and the First Respondent in England, to take place in the following three months. The said decision required to be considered by this Court in terms of section 95 of the Adoption and Children (Scotland) Act 2007.
68. At a hearing in this Court on the section 95 of the 2007 Act application by the Children's Hearing, the sheriff refused the application.
69. The children have contact with the First Respondent on around 2 occasions each month. The children have expressed a view that they would like to have more contact with the First Respondent. The children have expressed a view that they would like to have residential contact with the First Respondent in England. The children have never been to the area of England in which the First Respondent lives.
70. During contact, the First Respondent has, since at least January 2013, told AB and CD that they will be living with her and EF soon.
71. AB does not feel secure enough in his relationship with the First Respondent to ask challenging or difficult questions.
72. AB and CD require a high level of care, especially emotional care, for the rest of their childhood.
73. The children have overnight, unsupervised contact with the Second Respondent at his home on alternate weekends usually from around 11.30am on the Saturday until 6.00pm on the Sunday. In September 2013, when together, AB and CD told the Curator ad Litem that they very much enjoyed the time they spent with the Second Respondent and that they looked forward to seeing him. AB and CD expressed the view to the Curator ad Litem that they would prefer the arrangement for contact with the Second Respondent to be from Friday after school until 6pm on Sunday.
74. The children have not lived with either the First or Second Respondent since 30 July 2007. They have been looked after and accommodated in familial placements for a period in excess of 6 years.
75. The Second Respondent does not seek and is not in a position to provide for the residence of AB and CD.
76. The children's mother no longer abuses illegal drugs and is stable on a methadone prescription.
77. The child AB has a significant attachment to his mother, as has the child CD, albeit slightly less so.
78. The mother has a support network in the area of England in which she lives.
FINDS IN FACT AND IN LAW that residence of the children with their mother is not likely to be seriously detrimental to their welfare.
THEREFORE refuses the Petitioner's application for a permanence order in relation to the said children AB and CD; appoints a hearing on a date to be afterwards fixed for the Sheriff to be addressed on the question of expenses.
NOTE:
[1] This is an application by the City of Edinburgh Council ("the Council") in terms of the Adoption and Children (Scotland) Act 2007 for a Permanence Order in respect of two children, AB (aged 11) and his brother CD (aged 10). The children live in West Lothian and the application was raised at Livingston Sheriff Court as "the sheriff court of the sheriffdom within which the child is" (section 118 of the Adoption and Children (Scotland) Act 2007), although as nearly everyone connected with the case is based in Edinburgh I would have thought that considerations of convenience and economy might have suggested that the application should have been presented to Edinburgh Sheriff Court, which also appears to have jurisdiction under s118. The first respondent, WX, is the boys' mother ("the mother") and the second respondent is their father, YZ, ("the father"). Separate petitions have been presented in respect of each of the boys, but as the issues which arise in relation to each of the boys are virtually identical the parties entered into a Joint Minute (no 18 of process) in terms of which the proofs in both actions were conjoined. The proof took place before me at Livingston Sheriff Court over a period of 10 days between 21 October and 5 November 2013. At the proof the Council was represented by Miss Brabender, Advocate, the mother by Miss MacLeod, Advocate (as instructed by Sneddon Morrison, Solicitors, Blackburn), and the father by Mr MacFarlane, Advocate (as instructed by Allcourt, Solicitors, Livingston). Although the case in relation to each of the children has required separate consideration, as the issues involved are so similar I have issued a single judgement which deals with both boys.
[2] At the proof six witnesses were led for the Council, being three social workers, an "Independent Kinship Assessor", a psychologist, and a "kinship carer", and the Council also lodged affidavits for a fourth social worker and a head teacher. The mother, in addition to her own evidence, led the evidence of six witnesses, being three friends, a safeguarder appointed by the Children's Panel, a social worker based in England, and a psychologist. Additional evidence in the form of affidavits was led by the mother in relation to a nurse, two other friends, and the children's maternal grandmother. The only evidence for the father was the father himself, and his affidavit has also been lodged in process. A total of 20 witnesses thus gave evidence either in person or by means of an affidavit. In conformity with the Sheriff Principal's Practice Note No. 1 of 2009 (for Lothian & Borders) even where the witnesses gave evidence in person the Council prepared and lodged affidavits for all of its main witnesses. Similarly, the mother's solicitors prepared affidavits for some of her witnesses, and these are also to be found in process. That exercise, which must have been very demanding and time consuming, was helpful in terms of the efficient use of court time, but most of these witnesses then supplemented their affidavits by giving further evidence in chief, and this further evidence lasted some considerable time. The effect of this was that the principal source of evidence almost became the oral evidence rather than the affidavits, which to some extent made me question the value of the affidavits which had taken so much time to prepare. I heard submissions over a period of two days, each of the parties having very helpfully lodged written submissions. A lengthy Joint Minute of Agreement was very helpfully prepared by the Council's Advocate, and that has formed the basis of my findings in fact.
[3] In addition to the affidavits, four lever arch folders containing copies of Social Work records in relation to the children (known as Swift notes) were lodged as productions. Various reports were also lodged, together with other productions all of which are listed in the relevant inventories of productions. Two reports in particular should perhaps be mentioned. The child psychologist led as a witness for the Council, Dr Mary Smeddle, prepared a report which has been lodged in process, and which formed the basis of her evidence. The child psychologist led as a witness for the mother, Professor James Furnell, prepared a lengthy report and it has also been lodged in process. All of these documents are available for reference, and I do not, accordingly, intend to rehearse in detail the information contained therein in this judgement, but as it is almost overwhelming in its volume it may be helpful if I summarise the background.
Background
[4] The children's mother WX, was born in May 1981. At the time of the proof she was 32 years old. She lived with her parents and her two brothers and sister on a farm near Perth until she was aged 7. At that time her parents separated, and her brothers and sister remained with their father. Miss X decided to stay with her mother, and she and her mother moved to Dundee where they lived in Council accommodation. During her first year at secondary school Miss X decided to move back to her father, who was by then living in the Dundee area. It seems that for the remainder of her time at school she only saw her mother intermittently, and at the age of 17 she moved to the Isle of Wight, where she worked at a Butlins holiday camp. After two years on the Isle of Wight she moved to Buckhaven in Fife when she was 18 or 19 years old. Around six months after moving to Fife she met the Second Respondent, YZ, and they commenced a relationship. It seems that she then lost touch with her father who did not approve of Mr Z. The older child AB was born in 2002, at which time Miss Xwas 21 years old. She and Mr Z moved to Edinburgh when AB was 4 months old, and the second child CD was born the following year, in 2003. The next few years saw various very serious developments. By 2006 Miss X and Mr Z were addicted to heroin, and their life styles became chaotic. In November 2006 the children's health visitor raised general child care concerns with the social work department in Edinburgh. There was a domestic incident in December 2006 as a result of which Miss X contacted the emergency social work service in Edinburgh. That incident led to a referral being made to the children's hearing system. Grounds of referral based on lack of parental care were established at Edinburgh Sheriff Court in April 2007, and the children were made the subject of a Supervision Requirement at a children's hearing on 11 July 2007, although it would appear that the children remained with their mother and father at that time. Miss X and Mr Z separated on the 25 July 2007. On 30 July 2007 there was a serious incident when the children's father was assaulted with a machete, as a result of which he required emergency surgery. Arrangements were then made by the Social Work Department for the children to be looked after in Loanhead by the father's niece, Mrs R, and her husband.
[5] At that point Miss X's life seemed to spiral out of control. She began working in prostitution as an "escort" in order to make money for drugs. Miss X was put on a witness protection scheme and kept in hiding between July 2008 and October 2009. During that time it seems that she was working in the sex industry, and became involved in making a number of pornographic videos. For various reasons she came off the witness protection scheme in 2009, and at the end of that year she moved to live with her mother who by then was living in Inverness. In 2010 Miss X moved to live in Stirling. On 10 October 2010 she was involved in a serious road accident, whereby she seems to have lost control of a car she was driving when she was assaulted by a passenger she was carrying. It appears that she was in a coma for 9 days. She was in hospital for a few weeks, and on being discharged she moved to live with her mother who had moved to Elgin. She was, apparently, bedridden for six months after the accident, and then in March 2011 she obtained her own tenancy in Elgin. In March 2012 she moved to England, where she remains.
[6] After the children had been put into the care of Mr and Mrs R it had been hoped that the children might be rehabilitated back into the care of their mother and father. Once it became clear that, in the circumstances described above, Miss X was not in a position to look after the children, it was decided by the social work department that they should remain in the care of Mr and Mrs R, and that Mr and Mrs R should apply for a court order (namely a residence order) in terms of which Mr and Mrs R would be entitled to have the children reside with them. The children resided with Mr and Mrs R from 2007 until 2011, but the residence order never came to fruition because of concerns which had arisen regarding Mr R. As a result of these concerns the children were then moved to the father's sister, Mrs T (the mother of Mrs R), and her husband, Mr T, in around September 2011. After the children were placed in the care of Mr and Mrs T a number of children's hearings took place. The children were made the subject of supervision requirements in terms of which they were to live with Mr and Mrs T. In terms of the supervision requirement the children's mother and father were both allowed to see the children. By May 2012 the Council's "Kinship Approval and Matching Panel" was recommending that Mr and Mrs T be approved as "kinship carers" for the children, and that the Council apply for Permanence Orders in respect of the children. In about March 2013 the Council presented the present petitions to Livingston Sheriff Court seeking Permanence Orders in respect of the children. The children remain living with Mr and Mrs T.
Law
[7] Although the law relating to Permanence Orders is complicated, perhaps unduly so, I am able to deal with it in very brief terms as the parties were at one in relation to the law to be applied in this case, and they set out the law in their submissions. It is set out most fully in the written submissions for the Council, the narration of which I adopt for the sake of brevity. It can be seen that a Permanence Order is provided for in Sections 80-84 of the Adoption and Children (Scotland) Act 2007. At the risk of oversimplification, a Permanence Order is an order which authorises a local authority to keep children in care. Every Permanence Order gives the local authority the right to decide where the children are to live, and places upon the local authority in every case a responsibility to provide guidance for the child. If a Permanence Order is granted it is then at the discretion of the local authority whether to arrange for children to be looked after by family members, by foster parents, or in a children's home. The court is also given a discretionary power to transfer certain "ancillary" Parental Rights and Responsibilities to the local authority or to such other person as the court thinks fit. The ancillary Parental Rights and Responsibilities are those set out in the Children (Scotland) Act 1995. The necessary corollary of vesting the ancillary Parental Rights and Responsibilities in anyone other than the parents, is that the parents' Parental Rights and Responsibilities have to be extinguished by the Permanence Order. The Permanence Order can also regulate the parents' right to see the children by making provision for contact between them.
[8] Before any Permanence Order can be granted in this case I have to be satisfied that the child's residence with his mother "is, or is likely to be, seriously detrimental to the welfare of the child", and if not so satisfied no Permanence Order can be made - see Wilkinson and Norrie, on The Law Relating to Parent and Child in Scotland, 3rd Edn, para 20.13. Even if that fundamental test is met, section 84 of the 2007 Act also specifies various other tests which have to be applied by the court in deciding whether or not a Permanence Order should actually be made. These are: (1) the court may not make a Permanence Order unless it considers that it would be better for the child that the order be made than that it should not be made; (2) in considering whether to make a Permanence Order the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration; (3) before making a Permanence Order the court must have regard to any views expressed by the child; (4) before making an order the court must have regard to the child's religious persuasion, racial origin and cultural and linguistic background; (5) the court must also have regard to the likely effect on the child of the making of the order.
FACTORS RELEVANT TO DECISION
[9] Although rule 38(2)(a) as read together with rule 38(3)(b) of the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 seems to provide that any written judgement prepared by the Sheriff in a Permanence Order case only has to contain a note stating "briefly the grounds of his decision", I think that in deference to the care which was shown in the presentation of this case, and lest it were to go further, it is appropriate that I set out in some detail the various issues which were explored at the proof and which are relevant to the decision which I have reached. Having said that, in a case like this where the report which accompanies the Council's petition runs to eighteen pages, where eight lengthy affidavits have been lodged on behalf of the Council a further seven affidavits have been lodged on behalf of the mother, an affidavit has been lodged on behalf of the father, where two lengthy reports have been lodged by Child Psychologists, where other reports have been lodged, where the various productions which include Social Work Notes and Children's Panel Records run to many hundreds of pages, where I heard evidence over a course of eight days, and heard a further two days of submissions, and given the strict timetable which applies to the issuing of a decision, it is simply not possible to deal with every single issue which arose in the case. I will therefore concentrate on the factors on which the Council founded.
Drug use
[10] The first factor founded on is the history of drug taking. This is an important matter. There are admissions of drug use in paragraph 10 of the Joint Minute of Admissions. There is no doubt that as at the time the police were called to a domestic incident on 28 December 2006 the parents' lives were entering a chaotic stage, and that the main reason for this deterioration in their behaviour was their increasing drug use.
[11] However, it is not suggested by anyone that Miss X continues to take illegal drugs. The social workers based in Edinburgh were content in their evidence to accept the assessment and views of their colleagues in England on this matter. Evidence put before me persuades me that Miss X began tackling her drug abuse after the serious car accident in October 2010. After she had the accident she moved to live with her mother in Elgin, and then obtained her own tenancy in Elgin in March 2011. Her affidavit shows (paragraph 23) that during her time in Elgin she was supported by Moray Integrated Drug and Alcohol Services. One of the people she worked with in Elgin was a nurse called Brenda O'Neill. In her affidavit Miss X claims that she was tested by mouth swabs for illegal drugs with negative results while in Elgin. A letter has been lodged from Brenda O'Neill which is dated 27 September 2013, and is to be found as the mother's fourth inventory of productions. It confirms that even before moving to Elgin Miss X had been receiving assistance to deal with drugs. It confirms that during Brenda O'Neill's involvement Miss X was "compliant with her programme and that she "continued to engage with services appropriately". The letter confirms that Miss X continued to work with Brenda O'Neill until the end of April 2012 when she left the Elgin area. The letter confirms that Miss X attended her appointments and that tests were carried out and that she did not test positive for any illicit drugs. The letter confirms that Miss X's presentation at meetings supported her claim to be drug free. There is also a lengthy report from a person called Elizabeth Pace, who is described as a Substance Misuse Worker with Addictions Service in England. It is dated 10th October 2013 and is to be found as production 2 of the mother's fifth inventory of productions. By a Joint Minute number 34 of process it is agreed that the report is agreed as the evidence of Elizabeth Pace. The report confirms that she started working with Miss X in May 2012, which would have been the time when she moved to England. The report confirms that Miss X is prescribed Methadone. It confirms that her urine samples have been negative for illicit substances. It is said at paragraph 7.4 of the report that due to her level of progress and stability she is to be referred to a "Recovery Clinic" for the process of gradually reducing Methadone. The conclusion in paragraph in 7.5 is that there is no evidence to suggest to Elizabeth Pace that Miss X is associated with illicit substance misuse. Elizabeth Pace concludes that Miss X "has demonstrated that she has now remained substance misuse free for one year and five months since I have known her". I also heard evidence at the proof from a social worker based in England, KT. Her evidence in chief mainly took the form of an affidavit, which is to be found as production no 3 of the seventh inventory of productions for the mother. It can be seen from the affidavit (at paragraph 14) that Miss X was assessed comprehensively by the "Changing Trax" Intensive Drug Service in England, and that their conclusion was that there was no evidence to suggest any continuing drug use. It is said in the affidavit that Miss X attended all of her appointments and consistently provided negative samples. Moreover, the condition of the house in which Miss X lives is clean and tidy and this does not suggest any drug use.
[12] This evidence strongly supports Miss X's claim to have become drug free, and persuades me that this is so. While there must always be a risk with any former addict that they will relapse, Miss X has been free of drugs for a sufficiently long time to suggest that her position is stable. The question of drug use is clearly a very important issue in this case. Had there been evidence of continuing drug use, or even of an unstable position, then the Council's case for a permanence order would have been considerably stronger, indeed it might have been fatal to the mother's case. As it is, I regard the previous drug use as giving rise only to a risk that Miss X might relapse.
Lack of care and erratic attendance at contact sessions
[13] The Council founds also on the fact that grounds were established before the Children's' Panel showing a lack of parental care in April 2007, and also that the mother's attendance at contact with the children was erratic from September 2007 onwards, and that she was absent from their lives entirely for at least six months from about July 2008. It is an admitted fact that grounds of referral were established in April 2007. However, although there was a lack of parental care in 2007, matters have moved on. She gave birth to a child EF in June 2012, which is not long after she moved to England. The situation of that child was considered at a Child Protection Conference in England. The child was made the subject of a Child Protection Plan. There was assessment of Miss X's substance misuse and of her parenting capacity. Monthly meetings were held to monitor the progression of the Child Protection Plan. The affidavit of KT shows that assessment of Miss X's parenting following the birth of EF was positive. The home conditions were assessed as being excellent. Miss X was assessed as having made positive links in her community, and was engaging with the health visitor and attending appointments. As a result of this EF's name was removed from a Child Protection Plan, although support was offered to the family until October 2012. It is said in paragraph 19 of the affidavit that at this juncture it was evident that there were no identified needs of the family and the local area's Children's Services Department ended their involvement. All of this was confirmed by KT in her oral evidence. The lack of care which was established in 2007 and which resulted in the children being put in the care of family members is now therefore of much less relevance in view of the changes which Miss X has managed to make in her life.
[14] In relation to her erratic attendance at contact in the past, there appears to be no doubt that her chaotic lifestyle contributed to this. I am prepared to accept, however, that while she was under serious threat as a witness in the High Court trial, and was being moved by the police from place to place, it was impracticable for her to attend contact sessions regularly if at all. The effects of her absence from the children's lives for the extended period of six months around July 2008 are difficult to measure, but at least there was a reason for her absence.
Moving house
[15] The Council found on the numerous moves which the children's mother made prior to moving to England. The fact that Miss X was moving from place to place reflected to a large extent her somewhat chaotic lifestyle. She maintained in her evidence that she is now settled in the area of England in which she lives and will remain there for the foreseeable future. There must always be a worry that, as in the past, that will not prove to be the case, and if the children were to move to live with her in England and then to have to move again, clearly that would be unsettling for them. However, Miss X's life does appear to have entered a new and much more stable phase, and this suggests that she may at last settle in the one place. Her history of moves suggests that there is more of a risk in her case than with most people that another move might take place, but I cannot say on the evidence that such a move is likely.
Inappropriate behaviour
[16] The Council found on certain behaviour by Miss X towards the boys which is said to have been inappropriate. This is, in summary, that it is said that she asked the children to keep her pregnancy with EF a secret, that she asked them whether she should keep the unborn baby, that she has misled AB as to what compensation, if any, she has received or will receive in respect of the car accident, and that she had brought unknown people to contact sessions with AB. I heard evidence about these matters primarily from Pamela Dudgeon who refers to these matters at paragraph 15 of her affidavit. She expanded on this to some extent in her oral evidence. While Miss X denies in paragraph 28 of her affidavit that she said anything inappropriate, I am prepared to accept the evidence that she said the things alleged. I think that most people would agree that these comments are inappropriate when made to young children, but I do not see anything said as going beyond this, that is going beyond inappropriate comments. The making of comments, no matter how inappropriate, could never justify a finding of serious detriment.
Harmful associations
[17] The Council also found on Miss X's involvement with a person with a history of violence, who may be the father of EF, and on her involvement in the sex industry. It seems to me that these things reflect all the wrong choices which Miss X was making in her life until fairly recently. The car accident also seems to stem essentially from the inappropriate company she was keeping rather than from the simple misfortune of an accident. While prostitution and involvement in the sex industry could undoubtedly lead to a child suffering from serious detriment in relation to his welfare, that would depend on how much exposure the child had to what was happening, and how much knowledge the child had of what was happening. It is not suggested that the children here had any knowledge of their mother's activities, and I find that as a matter of fact she has given up involvement in these seedy activities. As with the previous drug use, the evidence persuades me that there is no likelihood of any return. The report from Elizabeth Pace shows that at the height of her drug use, which involved heroin and crack cocaine, the children's mother was spending £200 per day on these drugs. This level of spending was the reason why, it would appear, she turned to prostitution. Now that drug use has ceased, I do not see any sign that she might return to her previous lifestyle. These matters are now historical.
Inconsistent attitude
[18] The Council also found on what is said to have been inconsistency in Miss X's attitude towards having the children returned to her care. It is said that from time to time during 2012 she said different things to different people about whether or not she wanted the children back. I am prepared to accept that she said these things. However, I do not count it strongly against her. It may be that high emotions have caused her to say certain things, and other factors may have caused this also, but overall I have no doubt that Miss X is genuine in her desire to have her children back and that this desire is a very strong one. I do not think this matter takes the Council very far at all.
Excessive present giving
[19] The Council also found on the fact that Miss X seems to have lavished a large number of gifts on the two boys. It is said that the boys relationship with their mother is based on being given the presents, and that this is one of the main reasons they wish to see her. I am prepared to accept that the level of gift buying is greater than average, and indeed has been as a level which many people might regard as excessive, and might be seen as spoiling the boys. I think, however, that this has to be seen in the context that Miss X has not been allowed to have the boys come to stay with her in England. She has had to travel to West Lothian to see them, and there are a limited number of activities which are open to her to occupy the children during her contact sessions. As Counsel for the father put it, she is reduced to wandering around shopping malls because that is one of the few options available. It was never made properly clear to me just where the money for this indulgence comes from. The inference seemed to be that it was coming from a compensation payment. I agree, however, that it is almost inevitable that when a large amount of time is spent in a shopping mall, money will be spent and this is more likely to happen where there may be a feeling of guilt on the part of the parent. I think that while the buying of presents may well be seen as excessive, it is primarily a result of the circumstances in which contact has to take place, and possibly reflects also an attempt by Miss X to make up for her previous mistakes. Seen in that light, I do not think it can count strongly against her, or can take the Council any real way towards establishing serious detriment.
Ability to look after three children
[20] Another argument made against the mother is that while she may be capable of looking after an infant, her ability to look after two boys aged 10 and 11 has never been assessed, and therefore her wish to have the children returned to her is no more than an "untested, vague and aspirational plan". In her response to that it is said on behalf of the mother (at page seven of the written submissions) that the Council have never considered the issue of rehabilitation of the children to the mother in England, and that is why no assessment has ever been carried out. Also, the Social Work Department in the local area in England is only concerned, at present, with her ability to look after EF as that is the only child in her care. They have therefore not carried out any form of assessment beyond that. In relation to this issue, the Social Work Department in Edinburgh have strenuously resisted the attempts by the mother to have the children stay with her overnight in England. Had that happened, then it is possible that some greater understanding of her ability to deal with the two boys might have been obtained. In these circumstances, it seems to me that Miss X can do no more than she has done in an attempt to prove that she is capable of looking after three children. On the whole, I think the point made by the Council is a neutral one. On the one hand Miss X has not been able to show in a practical setting that she can cope with three children, but on the other hand neither can the Council show that she would not be able to cope.
Support network
[21] I wish to deal now with the view put forward on behalf of the Council that the "support network" which she says she has in England does not really stand up to analysis.
[22] In looking to see whether the children could be returned to the care of their mother, one of the things which the Social Work Department have looked at is whether there are people who would be able to help her if any difficulty were to arise, or, as it is known in Social Work terminology, whether Miss X has a "support network". In her affidavit at paragraph 39 Miss X says that she has "lots of friends in the local area". She says that she met some of those friends through a lady called MM, who used to be Miss X's Social Worker when Miss X was at school in Dundee, but who now lives in England. The view of the Social Work Department in Edinburgh is that Miss X has a very tenuous relationship with those who are said to form her "support network". MM was led as a witness on behalf of Miss X, and her evidence clarified to a large extent the nature of this "support network".
[23] MM said that she had known Miss X since Miss X was thirteen, as she was her Social Worker at that time. She worked with Miss X for about a year or so but after that only bumped into her occasionally until 1998 when MM left Dundee. She said that there was no contact between them after that until 2011, when they re-established contact through Facebook. By that time MM was living in England. Although MM still worked in the Social Work field (for a charity) there was no longer any formal Social Work connection between them, and their relationship developed into one of friendship. When Miss X moved to England, the local area Social Work Department asked her to provide information as to whether she had a support network in the area. This was in connection with whether Miss X was able to look after EF. By this time Miss X was already in contact with various people in the local area. As I understood it some of the introductions to those people came through MM. MM helped her draw up a document in which the support network is set out. It is to be found as a production lodged for Miss X. The list of people said to form Miss X's support network is therefore, to some extent, a manufactured list. It was created for the specific purpose of answering a request made by Social Work in the local area in England. On the other hand, she had been introduced to those people and knew them before the list of friends was drawn up.
[24] As well as hearing evidence from MM, Miss X also called two witnesses from the list who had travelled up from England to give evidence. The first was NN. She is 48 years old and works as a college lecturer. An affidavit has been lodged which sets out her evidence in chief. It is to be found as the second production of the mother's eighth inventory. She confirmed that she met Miss X through MM. As can be seen, in the affidavit she refers to Miss X as having a wide circle of friends. I heard also from PP. She is 40 years old and a mature student at university. She is married with a daughter. She described herself as a friend of Miss X. An affidavit has been lodged for her which is the third item in the eighth inventory. There is also an affidavit from a person called SS, which is the first production of the mother's seventh inventory. She was not actually called as a witness in person. She confirms in her affidavit that she has known Miss X for just over a year.
[25] The people that Miss X puts forward as her support network are people that she has met since she has moved to England in the summer of last year. With the exception of MM they are all people of relatively recent acquaintance. They seem mainly to be somewhat older than Miss X and they mainly seem to have a background of working in childcare. Given Miss X's recent past, I have to say that these alliances seem somewhat strange. It may be that it would be more accurate to describe her claimed support network as people who have befriended Miss X, no doubt for very good and proper charitable motives, rather than friendships which developed in a more normal way. Having said that, I formed the impression that in the case of MM, NN and PP the relationship, however it started, is developing or possibly has developed into something that would properly be called friendship. Miss X seems to spend time with these witnesses, and she seems to spend that time as a friend rather than simply as someone whom they have seen fit to befriend. What is important, however, is that I have little doubt that there are a number of people on who she could call in times of need, whether practical or emotional. In that sense there is in my view something which could be described properly as a support network in England, and I have come to the conclusion that the Social Work Department have underestimated the value of this circle of friends and acquaintances.
The children's relationships
[26] One important issue was the nature of the children's relationship with Mr and Mrs T, on the one hand, and their parents, on the other. It is appropriate that I look at this question in some detail. The various social workers who gave evidence were all of the view that to move the children from the care of Mr and Mrs T would harm them, and that view was based on their belief that the children are close to Mr and Mrs T and not close to their mother. Thus, at paragraph 26 of her affidavit Pamela Dudgeon states the following:
"For a secure attachment to be formed it is essential that the aforementioned qualities are consistently and appropriately offered by a care giver. I do not feel that WX has been consistent in her responses or availability to AB and CD throughout their childhood and is certainly not always been appropriate in her interactions. As a result AB and CD do not have a secure relationship with their mother; it is instead an ambivalent insecure attachment they have formed".
In paragraph 27 Pamela Dudgeon says as follows:
"When WX does raise something with the boys that they are unsure about it is Mr and Mrs T that they go and speak to and seek reassurance from. This is hugely indicative of them feeling secure in their relationship with Mr and Mrs T and is likely due to the consistent levels of appropriate care they have received since being in the placement".
In his affidavit Keith Dyer says at paragraph 53 as follows:
"AB and CD are very settled with their current carers, Mr and Mrs T. They are receiving a good education and doing well at their new primary school. They have friends in school and in the community and are very much involved in the community. As far as I am advised by those involved recently, both boys have a good attachment to Mr and Mrs T. By the term good attachment I am referring to their ability to seek emotional warmth from the carers, depend upon the carers being there - physically and emotionally - as they develop and grow, to be consistent in their caring responses to the varying needs each child presents."
In her affidavit Susan Henderson, the Independent Kinship care assessor, deals with the concept of attachment at paragraph 16. She explains her understanding of the concept. At paragraph 17 she says as follows:
"I believe that attachment is a key issue in this case. I believe that AB and CD have sustained significant and emotional damage as a result of the early years care provided by their parents. They display many of the behaviours indicative of insecure attachments noted above ... However, YZ and WX's increasing dependence on heroin, and her participation in the sex industry, and her alleged involvement in gang land criminality created a chaotic and unpredictable home life for the boys. This will have created the insecure attachments with their mother, which can clearly be seen in their behaviours and presentation today."
In her affidavit, Lorraine MacIntosh, states at paragraph 35 as follows:
"I would say that it would be seriously detrimental for AB and CD to return to live with WX. They have no strong attachment to her. They are at a vulnerable age and state of development. They have not had much security in their lives so far. They have the potential to grow and continue to be secure with their current carers. They have a very close relationship with Mr and Mrs T and are very well settled in school and community. They attend a lot of activities and have many friends. This has become their solid base. To uproot them now would impact on them emotionally. They have never lived with their mother since they have been accommodated which is a significantly long period of time. ... The reality of them moving from their current secure base would be very stressful for them. ... A Permanence Order would ensure that AB and CD would continue to thrive in the care of Mr and Mrs T throughout their childhood and that they would have on going contact with each of their parents".
[27] The views of these experienced Social Workers are to be respected and are to be given considerable weight. However, their unanimous view that the children have a good relationship with Mr and Mrs T and are "attached" to them seems to me to be contradicted, at least to some extent, by the fact that the boys say they wish to move to live with their mother. Mrs T gave evidence that she has a good relationship with the children, but if the boys had as close a relationship with Mrs T as is suggested by the Social Workers then I think it would be very surprising if they wanted to move from her care. More importantly, the views of the social workers are also at odds, to some extent at least, with the evidence I heard from one of the two Child Psychologists who gave evidence. The evidence from the psychologists was important, and it is appropriate that I now look at that evidence.
The evidence of the child psychologists
[28] I heard evidence from a Psychologist instructed by the Council, Dr Mary Smeddle, and from another Psychologist, Professor James Furnell, who is a Consultant Psychologist. Both of these Psychologists have lodged reports which are in process. The report from Dr Smeddle is to be found as the only production in the ninth inventory of productions for the Council. Professor Furnell was led as a witness on behalf of the mother and his report is to be found as the first production in the mother's sixth inventory of productions.
[29] Looking first at Dr Smeddle's report, she was specifically asked to give her opinion on the "nature and strength of AB and CD's attachment to their mother". She was also asked a further nine questions as set out in her report. Her report is detailed consisting of twenty five pages of fairly closely spaced typing. Her qualifications are set out in a curriculum vitae which is attached to the report. She obtained her qualification in psychology in 2006. Prior to that her curriculum vitae shows that she worked as an assistant psychologist and then as a Trainee Clinical Psychologist. She seems to have considerable experience of dealing with children. She is 39 years old. There is little point in narrating the contents of her report, as it is very detailed and available for reference. Of most relevance in her report on the question of attachment is page six where she deals with her assessment of AB. AB told her that he felt life was "ok" at Mr and Mrs T's house. He told her on more than one occasion that he wished to live with his parents. CD said much the same. She observed contact between the children and their mother. In her conclusions which start at page seventeen of her report she suggests that "AB has not developed a secure attachment style" and that he did "not see any adults in his life as being reliable and trustworthy". She says that he seems to be emotionally self-reliant and does not seek help when he is emotionally distressed. She suggests that he sees his mother and father as interchangeable, and thinks that he wants to live with them because of a desire to be "normal". She is of the opinion that AB does not really have any attachment to anyone, but "is presenting with significant mental health difficulties". In relation to CD she suggests that he appears to be developing a secure "attachment style" with Mrs T being his main attachment figure. She does not see CD as presenting with any significant mental health difficulty. She says that she has serious concerns about Miss X's capacity to parent the children and is concerned that without highly skilled parenting it is likely that "their attachment styles will remain insecure and their mental health will continue to deteriorate". In relation to returning the children to their mother she says the following:
"In summary, given the host of concerns regarding Miss X's capacity to parent AB and CD in a healthy manner, coupled with her on going dependence on Methadone and her refusal to acknowledge or work co-operatively with professionals, I come to the conclusion that there would be a high risk that AB and CD would be adversely psychologically effected by Ms X were she to be their primary care giver".
[30] Professor Furnell's report is at least as detailed as Dr Smeddle's, if not more so. It is fifteen pages long and its type face is closer spaced. His curriculum vitae is lodged as an attachment to the report. He is 67 years old and a Consultant Psychologist. He qualified in psychology as 1968. It would appear from his qualifications that he is highly regarded in his professional field, having been made a Fellow of the British Psychological Society because of "distinguished contribution" to the profession. Whereas Dr Smeddle had prepared about eight reports for court proceedings over the last two years, Professor Furnell told me that preparing reports has been a major part of his professional life for over twenty years. Concentrating for the moment on the question of attachment, Professor Furnell states at page fourteen of his report that it "seems reasonable to conclude that AB has, now, a significant attachment to his mother." He suggests also that "it seems likely from AB's comments, that there is ... some degree of significant attachment also to his birth father, Mr Z". He suggests that it is likely that the same comments applied to CD, "although perhaps not to the same degree". He also comments that "both AB and CD appear to be generally healthy youngsters of normal development. Neither boy shows signs of learning difficulty or gross developmental delay, nor significant behavioural or emotional disturbance". In his evidence before me he suggested that "AB regards Mr and Mrs T as just carers" and that CD was "rather more attached to them". As I understood his evidence he did not suggest, however, that either of the boys had a strong attachment to Mr and Mrs T.
[31] There is therefore something of a difference of opinion between Professor Furnell and Dr Smeddle as to whether the boys show any attachment to their mother, and whether AB is displaying any signs of emotional disturbance. Dr Smeddle suggests that AB does not really have a close relationship with any adult, and CD is mainly attached to Mrs K. Professor Furnell suggests that AB has a significant attachment to his mother, as does CD, although perhaps not to the same extent as AB. He suggests that the boys regard Mr and Mrs T as carers, which does not seem to suggest a strong attachment.
[32] The views of Dr Smeddle and Professor Furnell were explored carefully and at some length in cross examination, and having considered their reports and the oral evidence they gave in court, I prefer the opinions put forward by Professor Furnell. There are a number of reasons for that conclusion. First, while Dr Smeddle struck me as an intelligent and capable witness, Professor Furnell has far greater experience than Dr Smeddle has, and he appears to be a distinguished figure in the field of psychology. Secondly, Professor Furnell spent considerably more time meeting the various parties then did Dr Smeddle. Professor Furnell saw Miss X twice, the second occasion for nearly six hours. He saw each of the children twice for periods coming to a total of two hours in relation to AB and one hour and twenty minutes in relation to CD. He observed a contact meeting between the mother and the children for four and a half hours. Dr Smeddle does not, so far as I can see, narrate the period of time she spent with anyone, but there was a suggestion in evidence, as I recollect it, that her meetings were not nearly as long as those of Professor Furnell. I think that the extra time which Professor Furnell spent with everyone mean that his conclusions are more likely to be reliable. While I found, again, that Dr Smeddle gave her evidence in a competent manner, Professor Furnell's vast experience came through in his evidence. He gave his evidence in a very restrained, moderate, manner, but nevertheless his views were very persuasive, and I attach considerable weight to them. In particular, Professor Furnell's views differ from those of Dr Smeddle and the Social Workers with regard to whether the children have any attachment to their parents, and where there is this difference of opinion then, for the reasons I have given, I give more weight to the views of Professor Furnell.
[33] On the question of the children's attachment to their parents, in particular their mother, I come to the conclusion that AB has a "significant attachment" (to use Professor Furnell's words)to his mother, CD only slightly less so, and that neither child is showing any real signs of emotional disturbance which could be categorised as a mental health problem.
Curator's report
[34] I ought also to refer to the report lodged by the curator ad litem. His original report is to be found as number four of process. The curator, Mr Johnstone, is an experienced local solicitor. I have no doubt that he will have made thorough investigations within the somewhat limited scope of his remit. It can be seen that the curator suggests that Miss X has taken "positive and successful steps" to address the previous issues of substance misuse, criminality, chaotic lifestyle, "and the like". At Section D of his report the curator puts forward the view that the Permanence Order which is sought "is likely to safeguard and promote the welfare of the child", in other words he supports the granting of the order. He does add the qualification, however, that the mother's claim to be able to look after the children cannot "wholly be discounted without further investigation and assessment". He also points out that if a Permanence Order were to be granted, even if an order allowing the parents to have contact with the children were to be part of that order it would effectively prevent any alteration and expansion of the contact arrangements. The curator therefore effectively gives qualified support to the Council's application, and I take his views into account.
Other miscellaneous factors
[35] There are several matters which I have not dealt with so far, because I consider them to have a peripheral relevance to the case, but as some time was spent examining these matters in court, I would propose to deal with them briefly now.
Mr and Mrs R
[36] Part of the mother's case was that I should be cautious in accepting the views of the social workers as, it was suggested, mistakes can be made, as evidenced by the fact that they had to remove the children from the care of Mr and Mrs R after it emerged that Mr R had a number of relatively serious criminal convictions. A copy of these previous convictions is now to be found as the third item of the mother's second inventory of productions. It can be seen that he is no stranger to the courts. Some considerable time was spent in court in an examination with the witness Susan Henderson, the Independent Kinship Assessor who assists Edinburgh Council in assessing the suitability of proposed Foster Carers or Kinship Carers, as to how the placement with Mr and Mrs R could have come about. Susan Henderson accepted that Miss X had repeatedly voiced concerns to the Social Work Department as to the suitability of Mr and Mrs R, but that they had been assessed as suitable and the children remained in their care from 2006 until 2009. As set out also in her affidavit Mrs Henderson explained that checks had been carried out on Mr and Mrs R and that nothing of any concern had emerged. Because of the departments "disclosure" policy at the time no copy of Mr R's previous convictions has been kept on their files. As I understood it, she could not now be clear just what information had been revealed about his criminal history. She accepted that the children's mother had complained about Mr and Mrs R looking after the children, but she maintained, I think with a good deal of justification, that people were telling them lies about various things and it was simply not possible to obtain any confirmation of any concerns which Miss X was putting forward. For example, the children's father desperately wished to avoid having the children taken into foster care, and therefore he would not say anything adverse against the care provided by his niece, Mrs R. Mrs R was not being forthcoming either about her husband.
[37] Although some time was spent on these issues in court, I do not think it is necessary for me to do more than to state that I doubt whether substantial criticism can be made of the assessment which was carried out of Mr and Mrs R as Kinship Carers. Mrs Henderson struck me as a very competent and capable person. The subsequent assessment report for Mr and Mrs T in extremely detailed, and I think it shows the level of competence which is exhibited. No doubt the report may contain more detail than normal as a result of a recognition that the problems with Mr and Mrs R had meant that the children had to be removed from them, and all those concerned were very keen not to have a repetition of that kind of situation. I do not think the placing of the children with Mr and Mrs R shows errors of judgment on the part of the Council, I think it simply shows that where the truth is being covered up life is made extremely difficult for the professional people who undoubtedly have the best interests of the children at heart.
House in England
[38] It does not seem to be suggested that the house in which Miss X is living in England would be an unsuitable house for the children to live in. Professor Furnell visited the house. He described it in complimentary terms at page three of his report as having three bedrooms and being "quite spacious, with a balcony".
Insight
[39] It was also suggested by witnesses at the proof, as I understand it, that the children's mother does not demonstrate any true insight into the past error of her ways. It is said that without this insight she will not be able to deal with questions from the children as to why she and Mr Z were unable to look after them after 2006. Without this insight, it is said, the children will struggle to understand the situation and this could be damaging to them. In relation to this, I think that all it is possible to say is that Miss X maintains that she realises the error of her ways. For example, at paragraph 32 of her affidavit she says as follows:
"I am aware that I have behaved appallingly in the past and made bad choices. I know my lifestyle was chaotic and at times out of control. The drugs took hold of me in 2007 and I made bad choices in respect of who I was spending time with ... That was a time of my life that I deeply regret."
[40] All who have met Miss X say that she is a not unintelligent person. It is difficult to believe that she could be unaware of the effect of the mistakes she has made on her own life and on the lives of her children. To what extent there is true remorse is difficult to tell, especially as the major changes in her life only came about last year. I would have thought, however, that at the age of 32 she must surely have some understanding of and insight into the mistakes she has made, and I therefore think it very likely that she can help the children come to terms with all that has happened in their lives.
Children's views
[41] In considering whether to make the Permanence Order, Section 84(5) requires me to have regard to the children's views. This is an important issue.
[42] The children have expressed their views to various people at various times. For example, in the "Kinship Report" prepared by Susan Henderson and Pamela Dudgeon dated 11 May 2012 (production one of the second inventory of productions for the Council), the children's views as at the time the report was prepared are set out. At page eleven it is said there that "AB consistently states that he would like to live with his mum or dad", although it is said that he is easily influenced by adults. The children have told the Children's Panel that they wish to see more of their mother. They told a safeguarder appointed by the children's hearing system, Katy MacFarlane, that they wished to see more of their mother (the safeguarder's report is production five of the second inventory of productions for the Council). The curator ad litem was also asked to prepare a supplementary report dealing with the children's views. His supplementary report is dated 30 September 2013 and is to be found as number four of process. As can be seen, they told the curator that they enjoy seeing their mother and father. They said that they would like to go and visit their mother in England and stay for the weekend. They said that they would like to live with their mother, although they were aware that this might not happen. Both boys also were asked by the Child Psychologists for their views. AB told Dr Smeddle that he would like to live with either his mother or father, as did CD. This is set out at pages six and seven of Dr Smeddle's report. Professor Furnell deals with the children's views at pages eight and nine of his report. AB told him that he wished to go back to his mother. CD was more circumspect, and appeared less sure. His views are set out at page eleven.
[43] I think it is clear that AB has expressed the view, now consistently, that he wishes to leave the care of the Mr and Mrs T and go to live with his mother in England. CD seems more concerned about the possibility of a move, and expresses less positively a desire to live with his mother, but on the other hand he does not say that he does not wish to do this.
CONCLUSION
[44] The ground for making a Permanence Order on which the Council found in each of the present cases is that the child's residence with Miss X "is, or is likely to be, seriously detrimental to the welfare of the child". As the children are not living with Miss X, it was agreed by the representatives in this case, as I understand it (and it seems to me to be correct), that I have to apply this test by looking to see what the position would be if the children were returned to their mother's care, and were living with her. And so the relevant test is whether residence of the children with Miss X "is likely to be" seriously detrimental. That test, however, can include a consideration of the consequences of moving a child from the stable environment that he or she has been enjoying back to the residence from which he or she was required to be removed, as "serious detriment might well be caused by the disruption of the child's security" (Wilkinson and Norrie, paragraph 20.15).
[45] The test is a high one. The very words "serious detriment" show that this is the case. As was said by Sheriff Mann in Aberdeenshire Council Petitioners 2011 SLT (Sh Ct) 104 (albeit in relation to adoption) the question "is not whether or not the lot of the child can be improved by being cared for by adoptive parents. It is whether or not the care of the child within its birth family is, or will be, so deficient that its welfare cannot be safeguarded and promoted to an acceptable standard and that thus the removal of the child from its birth family is justified... The question is not whether the life of a child can be improved but rather whether or not the drastic step of taking a child from its birth family is justified on the grounds that it is necessary for its physical and emotional wellbeing". There really must be no other option before an order which would effectively prevent the children ever being returned to the care of their parents should be granted.
[46] It is accepted by the mother and father that when the children were removed from their care at the end of 2006 they were not in a position to look after them properly because they were abusing illegal drugs, mainly heroin and crack cocaine. It is absolutely clear, and I think the children's mother accepts this, that for the period between 2006 and 2010 or 2011 she was not in a position to look after the children, her lifestyle having descended to a state which reflects no credit upon her. She was pursuing a life of drugs, prostitution, involvement in the sex industry, and, although the details remain unclear, an involvement with the criminal fraternity. She was living a nomadic lifestyle and moving, or being moved when on a witness protection scheme, from place to place. She continued to make poor decisions, one of them resulting in a very serious car accident which threatened her life and left her in a coma for nine days. The children's father had a continuing drug problem, and other lifestyle issues which meant that he could not properly fulfil the role of a parent to the children. There is no question, in my view, but that the local authority were correct to place the children in care, as both parents were completely unable to provide properly for them. The Council have indicated that if the Permanence Order were to be granted then they would propose to keep the children with Mr and Mrs T but would allow the children's mother and father to see them at reasonably regular intervals. Mr and Mrs T, who are looking after the children, have confirmed that although they are 65 and 60 respectively they are happy to carry on looking after the children indefinitely.
[47] As is all too depressingly common, when they were addicted to drugs the children's parents put their own interests first, and as a result these children must have suffered greatly in terms of the emotional damage that must have been done to them, and they have had a very difficult start in life. I think that there is also no doubt that regardless of the decision in this case they also face a difficult future. However, it is accepted by all who have had contact with the mother that she has not used illegal drugs for some time, and is stable on a methadone prescription. She gave birth to a third child, EF, in June 2012. While initially the relevant Social Work Department in England where she is living monitored the standard of care she was providing for the child, they no longer have any concerns, and she is bringing the child up as a normal, albeit single, parent, without any Social Work involvement. The professionals who have been involved with her in England have no concerns over her ability to look after her son EF. She has made a number of friends in the local area who are available to give her assistance if required. All of this leads me to the conclusion that Miss X has indeed been successful in establishing and maintaining a new, positive, lifestyle. It would not be an exaggeration to say that Miss X appears to have been able to turn her life around. This apparent transformation in her life seems to have come about around the time of her move to England in 2012. While, no doubt, it will be some time yet before it could be said that there is no risk at all of her life falling apart, and of her returning to her previously chaotic lifestyle, this is not in my judgement likely. The apparent stability of the mother's position is, it seems to me, of great importance in this case. It means that the Council from the start of this case have had an uphill battle to have a Permanence Order granted.
[48] It became clear as the case progressed that because of the stable position of the mother, the Council's witnesses came to rely on two main arguments in support of a Permanence Order being granted. Despite the stable position of the mother, these arguments have caused me considerable hesitation in this case. The first is referred to at page 8 of the Council's written submissions. It is that the children have simply been away from their mother for so long, with so many damaging things having happened to them, that returning them to their mother would be seriously detrimental to their welfare. That argument was supported by the evidence given by experienced professionals. It was, moreover, presented skilfully by the Council's Advocate.
[49] In relation to this, the witnesses suggested, indeed they put it in strong terms, that because of all that the children have been through what they need most of all is stability. They suggested that the children have stability in the care of Mr and Mrs T, and that the last thing that the children need is another move, and that the effects of another move in itself could be seriously detrimental to their welfare.
[50] Thus, in her affidavit (no 25 of process) Pamela Dudgeon, a Social Worker who is a Senior Practitioner with work involving children, says the following at paragraph 30:
"AB and CD need a safe, stable and predictable environment to be cared in. WX has not been able to evidence that she has been in a position to do this for them. AB and CD desperately need consistency in the care they receive and to be secure in the environment they are cared in. AB and CD are not secure in their relationship with WX thus I feel it would be hugely detrimental to the current and future well-being and development of AB and CD to return to the care of WX."
Lorraine MacKintosh, a social worker who has had involvement with the children since July 2012, says the following in her affidavit (number 29 of process) at paragraph 35:
"I would say that it would be seriously detrimental for AB and CD to return to live with WX. They have no strong attachment to her. They are at a vulnerable age and stage of development. They have not had much security in their lives so far. They have the potential to grow and continue to be secure with their current carers. They have a very close relationship with Mr and Mrs T and are well settled in school and the community. They attend a lot of activities and have many friends. This has become their sold base. To uproot them now would impact on them emotionally. They have never lived with their mother since they have been accommodated which is a significantly long period of time. It could also be difficult for WX who could struggle with the care of a young baby and meeting the needs of two active boys who would be very anxious about living with her again. The reality of them moving from their current secure base would be very stressful for them. WX has had a very unsettled lifestyle and although she appears to be settling into a new life in England with EF, this is still a relatively recent change. ... a Permanence Order would ensure that AB and CD would continue to thrive in the care of Mr and Mrs T throughout their childhood and that they would have on going contact with each of their parents".
Similar sentiments are expressed in the affidavit of Gillian Findlay in her affidavit which is number 35 of process. She is a social worker in Edinburgh working with children. In paragraph 14 of her affidavit she says the following:-
"I also have concerns that their relationship with WX is insecure and the boys need security to help them continue to develop in a healthy way and time to make sense of their past. If a Permanence Order were granted this would give them the basis of security. We will be able to do work with both CD and AB to say that they were staying with Mr and Mrs T and that that was their home base. ... [Paragraph 17] Both CD and AB have an insecure history with WX. If they were to move with her they would be difficult to manage as they have not lived with her for a significant period of time. Their anxieties would be raised as their attachment to her is insecure and this would make them even more difficult to manage."
I also heard evidence from Susan Henderson, an "Independent Kinship Assessor", who together with Pamela Dudgeon prepared a report for the Council which assessed the abilities of Mr and Mrs T to look after the boys. That report is to be found as document number 1 of the second inventory of productions for the council. At page 47 of the report it is said as follows:
"This kinship application has come about following years of emotional uncertainty and insecurity for AB and CD. It is imperative that they are placed permanently with carers who can provide emotional and physical security and consistency for them. Neither YZ nor WX is in a position to offer permanent care to the boys".
[51] Finally, I would refer to the evidence of Keith Dyer. He is a social worker who has reached management level, being a Team Leader with the South West Children's Practice Team in Wester Hailes in Edinburgh. His affidavit is number twenty six of process. I found him to be a very impressive witness. He seemed to me to be knowledgeable, intelligent, and objective in his answers. He said in his evidence, as I noted it, that he thought it would be detrimental to the children's welfare for them to be moved because they had already moved on from the time when it would have been easy or possible to rehabilitate the children to the care of their mother. He emphasised that the children had been in care since June 2007. He and his colleagues were unsure how stable a position Miss X was in. He suggested that the boys were coming to crucial development stages in their lives, and that they needed consistency. He said that they needed to feel safe and secure, and that in his opinion Miss X could not offer that to the boys. He was concerned as to whether Miss X could sustain her lifestyle. He said that the children had seen horrific events, they had had their parents disappear from their lives, then re-appear. They had had Miss X telling them that they would be coming back to her. He was unsure how the children would make sense of all of that. He said that a Permanence Order would, in his opinion, provide the children with as much security as was possible. It would allow them to continue to see their parents, and would allow the damage which had been done to them to be repaired. He said that if the children went to England and things broke down then it would have a "catastrophic impact" on them. He didn't see the children as having any secure attachments with their mother and father. He conceded however that if there was a greater attachment than he thought then he would consider rehabilitation to Miss X.
[52] This is really quite powerful evidence which is given by experienced social workers. It is, I think, the main reason why the Social Work Department have come to the conclusion that a Permanence Order is in the best interests of the children. The witnesses have expressed their views in very strong terms. It is these views which have caused me the most difficulty in this case, and I have given the views of the witnesses very considerable thought.
[53] Clearly, stability is very important, but in the end I have come to the conclusion that a move to their mother's care would not in itself be likely to be seriously detrimental to their welfare. I have reached this view to a large extent because I think that the social workers may have overestimated the nature of the bond that the boys have with Mr and Mrs T. Three of the social workers led as witnesses for the Council, namely Pamely Dudgeon, Lorraine MacIntosh and Gillian Findlay, all gave evidence (referred to above) that they believed that the children had a close bond with Mrs T but did not have that bond with their mother, and that they therefore ought to stay where they are. On the issue of the nature of the children's relationships with Mr and Mrs T on the one hand and their mother on the other, I prefer the views of Professor Furnell that the children have a "significant attachment" to their mother. I have set out above why I prefer his views. The bond the children have with their mother may explain why they wish to live with her, and so this would not be a case of uprooting them from a place where they wish to live and forcing them to live with someone who is effectively a stranger to them. The children know their mother, they regard her as their mother, they see her reasonably regularly, and they wish to live with her. There would be, in my view, a move which the boys wish to make to a parent who has a stable lifestyle, with only a relatively low risk of relapse. So I do not think that any move itself, which would only happen on a gradual basis, would be likely to be seriously detrimental to the children. Of course, if Miss X did relapse that would be a very difficult outcome indeed for the boys, but as I have said more than once such a risk in my view does not reach the high standard of showing the likely serious detriment.
[54] In relation to this first argument, it is my respectful view that despite the mother's huge failings towards her children in the past, and despite the fact that she has been largely absent from their lives for a number of years, I think the children are much closer to their mother than the Social Workers believe. It is incontrovertible that stability and security is important for the children, but there are other complicated factors which need to be taken into account, and as the children regard Mr and Mrs T really as their "carers" it seems to me that the advantages of remaining with the Mr and Mrs T have been over estimated.
[55] The second main argument of the Council's witnesses was that if there was a move back to their mother and that move was not successful or broke down, then the effects of all of that would be seriously detrimental to them.
[56] To a large extent all the witnesses I think base their views on the possibility of Miss X's life becoming chaotic once again, perhaps through a return to drug use. The evidence, however, does not suggest in my view that the present time is only a temporary period of stability. As I have said, while there is a risk of a return to drug use, and if it did happen while the boys were living with her then the effect on the boys would be very serious, it is my view that it is not likely. Of course, there comes a point where there are too many difficulties and too many risks, especially if the risks are high, for it to be safe to return the children to their mother. But that would just be another way of saying that stability was not likely, and it is my view that the risk of renewed drug taking leading to a return to chaotic behaviour is low, and the risk of any placement of the children with the mother collapsing from other reasons also seems low. The Council's concerns in this case, it respectfully seems to me, may have focused too much on historic concerns regarding the lifestyle of Miss X, rather than with the current situation that exists since the move to England. I think their arguments focus also more on the risk of a possible breakdown if the children were returned to their mother, rather than the likelihood of it happening. Perhaps insufficient weight has been given to the views of the children also.
[57] After much thought, I have been persuaded by the arguments put forward on behalf of the mother and father by their respective Counsel that in the circumstances of this case moving the children from the care of the Ts would not be seriously detrimental to their welfare. I would hope that my reasons for reaching this view will be apparent from all that has been said above, but in summary I have come to the conclusion that the mother's situation appears to be stable, the children are not as close to Mr and Mrs T as the social workers think, are closer to their mother than it may appear, wish to live with her, they see her and their father regularly, and it is important also that it is not proposed by anyone that the children would simply be uprooted suddenly from the care of Mr and Mrs T and placed with Miss X. All, including the mother, agree that matters would have to proceed very slowly and cautiously, with the children having some initial overnight visits to England, and thereafter spending gradually increasing amounts of time with their mother, before an assessment is made in respect of a possible rehabilitation into the care of their mother.
[58] As was said by Mr Dyer in his evidence, these children unfortunately have had a difficult life as a result of the neglect demonstrated by the parents, and, no matter the outcome of this case will face a difficult future. It was argued on behalf of the Council that the making of a Permanence Order would not be a once and for all decision. It was pointed out that Section 92 of the Act allows for variation of the ancillary provisions in any Permanence Order, and that Section 98 allowed any Permanence Order to be revoked. Indeed, Section 99 imposes a duty on the Council to seek to vary or revoke a Permanence Order if there has been "a material change in the circumstances directly relating to any of the orders provisions". All that is true, but it seems to me that a Permanence Order in this case would have had to have been regarded as just that, permanent. I do not think that in reality there would have been any realistic prospect of the order being varied or being recalled during the children's childhood. The Social Work Department appear to have formed firm views, and there has not been any indication to date that these views will change. This is not a criticism of the Social Work Department who are required to take very difficult decisions, but without a change in their position it does not seem to me that there is any prospect of the Council seeking to have the order revoked or varied. A further factor reinforces this view, and this is that the Council sought to have contact with the parents strictly controlled, and I think that this would have made it unlikely that the children's relationship with Miss X could really develop thereby bringing about the possibility of a variation or revocation. In his evidence Professor Furnell said that the relationship which the boys had with their mother was very important, and that the idea "of just shunting them off fills me with horror", by which I think he meant that he did not see the solution to this case being to foreclose any option of them ever being returned to their mother's care. In the end I have come to agree with that view. I agree also with Professor Furnell that the children should not be separated.
[59] Further, while a Permanence Order would have had the advantage of certainty, including in relation to contact, there is something to be said for the view that on the whole the advantage of flexibility which the Children's Hearing System will have will outweigh the disadvantages. The Children's Hearing will be able to explore and develop the best arrangements for the children. It will allow the panel, if they think it appropriate, to let the children "try out" visits to their mother in England. It will allow for the possibility of these visits being increased in frequency and length. It will allow for the possibility of the mother's care of three children being assessed, and will allow for the possibility of rehabilitation to her care to be gradually explored. All of this will no doubt be difficult, but none of these advantages would have been available had a Permanence Order been granted with contact times fixed probably for ever more. Remaining within the children's hearing system will bring about some continuing uncertainty, but I have no doubt that the panel members who will have to deal with the children will seek to find the best solution for them.
[60] Finally, in relation to the statutory tests I ought to mention that in coming to the conclusion that a permanence order ought not to be made I have had regard to the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.
[61] Having weighed everything up as carefully as I can, I have come to the view, although not without hesitation, that the Council falls short of satisfying me that the children's residence with their mother is likely to be seriously detrimental to their welfare. I have come to the conclusion that the serious detriment test is not satisfied, and that this is not a case where a Permanence Order would be justified. The test for making a Permanence Order is a high one, and I am not persuaded that the correct course of action for these children is to make such an order. Professor Furnell suggested in his evidence that we should proceed with caution, and I wholeheartedly agree with that. The children's panel will now be able to proceed cautiously to explore the avenue of rehabilitation with their mother, should they so decide.
[62] For all these reasons no Permanence Orders will be made.
Father
[63] I have concentrated in this judgement on the question of whether the children's residence with their mother would be seriously detrimental to them. That is largely because the father does not, except perhaps hinting at it formally in his Answers, seek to have the children live with him, and he has not sought actively in these proceedings to put forward a position that the children should be returned to his care. He seeks only to continue to see them. Moreover, as a matter of law the position regarding the children's father can be disposed of very briefly. I agree with the submission made on behalf of the Council that they need not satisfy me that residence of the children with their father would be seriously detrimental to their welfare. He does not have the right to have the children living with him, and does not have the right to regulate their residence. He has no rights which need to be taken away from him and vested in the Council. The father's involvement in this case is only by virtue of Section 86, which allows him to make representations as a person "who claims an interest".
CONTACT
[64] As no Permanence Order is to be made in this case, it follows that no orders will be made in relation to the question of contact. The matter of contact will therefore continue to be regulated by the Children's Hearing System, but as this case occupied ten days of court time, and the evidence of a large number of witnesses (including two experienced Child Psychologists) has been examined very closely, it may be appropriate for me to express some views in relation to the matter of contact, in the hope that this may be of some assistance to the Children's Panel. In doing so, however, I adopt what was said by Sheriff Craik in the case of City of Edinburgh Council v H 2001 SLT (Sh Ct 51) where it was said as follows:
"My role in the present proceedings is either to grant or refuse the application sought and I cannot advise, far less direct, either the applicants [the Council] or the Children's Hearing, what ought to be done otherwise."
[65] The supervision orders in force at the time the proof commenced, as I understand it, provided that each of the parents should have contact with the children a minimum of once per month. The evidence revealed that until recently the boy's father would see the children on three weekends out of four, with Mr T driving the boys to Edinburgh where they stay overnight with their father. Recently, he has tended to see the boys only every fortnight. Miss X tends to see the children twice a month on a Friday afternoon in West Lothian. At the outset of the proof the Council sought to have contact orders granted which would have drastically reduced the contact which the children's mother had with them. The Council's initial position was that Miss X should only see the children once every three months, that is four times a year. During the course of the proof the Council amended their petition so that they craved the Court to make an order allowing Miss X to see the children once per month, but with the contact to be exercised only in West Lothianor Edinburgh. The mother's formal position in relation to contact according to her pleadings (and assuming that a Permanence Order had been granted) was that she sought an order for residential contact every second weekend in England. In respect of the father they amended their position so that they sought that he be awarded residential contact every second weekend. The father's formal position, and indeed his actual position, was that he was content with his current level of contact continuing that is every second weekend.
[66] The Council's position at the outset of the proof regarding contact by Miss X reflected the recommendations made by Dr Smeddle, that contact in her case ought to be reduced to once every three months. While Dr Smeddle maintained that position in her evidence, by the end of the proof it was not supported by anyone, even by the Council who amended their position to be that as set out above. I think the Council were correct to do so. The children wish to see their mother. All of the Social Work witnesses were content that she sees the children at the present frequency. The present level of frequency was also supported by Professor Furnell. Such a drastic reduction in contact as recommended by Dr Smeddle would have resulted in a huge imbalance between the mother and father. I think that Dr Smeddle's recommendation that contact be reduced to a minimal number of times each year was a view which might have a good basis in some cases where a Permanence Order would be very akin to an adoption. For example a minimal level of contact might be appropriate where young children have no memory of their parents, are seeing them only occasionally, and are expected to be in care throughout their childhood. In such a case a minimal level of contact may well be appropriate. The present case is different. The children are older, know their parents, enjoy seeing them, and have been seeing them for some time. I think that Dr Smeddle perhaps did not give enough weight to the particular circumstances of this case. In any event, her position is not supported by the Council and I therefore need say no more about it.
[67] The children's father is content with the present arrangements. It is not suggested by anyone that these arrangements ought to be changed.
[68] Everyone involved in the case is of the view that Miss X should continue to see her children. The position regarding where the mother ought to see her children was more difficult and more controversial. The Social Workers maintained, adamantly, that it was not in the children's best interests for them to be allowed to travel to England to visit their mother. Their reasoning seemed to be that this might send a message to the children that they were being returned to live with their mother, and it was felt that such a message would be inappropriate. It was a little difficult to see that the children would have taken this as the coded message which was being given to them, and I do not see this factor of being of great significance.
[69] In relation to this I would mention, also, that no importance should be attached to the fact that I did not endorse the proposed single overnight visit to England made by the Children's Panel at an earlier stage of this case. That proposed visit had been vehemently resisted by the Council at the hearing before me, and I took the view that it was necessary to err on the side of caution at that stage of proceedings (ie shortly before a proof was due to take place and where I could not predict the outcome of the case), and that is essentially why I refused the application.
[70] The Safeguarder appointed by the Children's Hearing, Katy MacFarlane, looked at the question of contact in England in some detail. As I have mentioned her report is with the papers. She also gave evidence. She spoke to a number of people, and sets out her conclusion in the report where her views can be read in detail. She supports contact in England.
[71] Professor Furnell also sets out his views in his report. As I have said I very considerable weight to the views of Professor Furnell. I was able to hear for myself his views when he gave evidence. With regard to the children seeing their mother he concluded (at page fourteen) as follows:
"In my view, it is desirable that the boys' relationships with both of their birth parents, whatever the state of relations between the two parents may be at any particular time, should be maintained... It appears the boys have regular residential contact with their father who lives locally. If they continue to be based in West Lothian, they could have straightforward continued regular contact with Mr Z... With regard to Ms X, the boys have reasonably frequent contact with her, and this appeared to be positive for all three parties. In my view, consideration should be given to regular continuation of such contact as whatever is a practical frequency, but not less than present.... If one is to envisage a satisfactory longer term relationship between both boys and their mother, it would seem sensible that the relationship could be conducted in as normal a setting and conditions as possible, namely a family home. This allows many of the ordinary aspects of parenting, including "quiet time" to take place. I note that, despite the debate, the boys have never actually seen Miss X's home or its setting. I would respectfully suggest that arrangements be made for an initial visit, with monitoring of the children's reactions as required, with a view, if all is well, to a significant proportion of contact visit taking place with the boys travelling to England [my emphasis]."
In his report Professor Furnell therefore supported contact taking place in England. Had I been making a Permanence Order in this case I would have made an order allowing the mother to see the children in England.
[72] As to the future, Professor Furnell in his evidence said that contact in England "would allow the beginning of an approach to normality. It is not the Holy Grail but it's a start. If we are to try and put some element of normality into this, then being in the house in England takes us in that direction." He suggested that: "all that is required is to say to them we are going to see how you get on in England and how it works out". The first step, he suggested, is to prepare them for a visit to England, followed by the visit taking place, followed by a possible increase in frequency. He suggested that there should be a first visit to England, then perhaps another one in about three months' time, and then after that it could progress to perhaps once a month.
[73] I found Professor Furnell's views to be very persuasive. It is not possible for me to improve on anything which he has said. He stressed that matters have to proceed with caution, but he was clearly of the view that it would be in the children's best interests for visits to England to be tried out, and all of this to take place with a view to the possible rehabilitation of the children to their mother.
[74] Whether returning the children to their mother ever takes place is a matter which will have to be examined and considered very carefully by the Children's Panel. It will depend no doubt partly on the outcome of any visits to England. It will depend on the mother's position remaining stable throughout this time, although the longer she remains stable the more confident it will be possible to feel about that stability. It is possible that once they have visited England and stayed with their mother the boys may change their minds about wishing to live with her, although as present that seems unlikely. There is also the question that the boys as yet do not know of their mothers past but it will not be possible to keep this hidden from them for much longer. Finding out about the reasons why they were removed from their parents could affect the views which the boys have as to where they wish to live. There are many uncertainties, and a cautious approach clearly needs to be taken. All I can really say at this stage is that it respectfully seems to me that contact should be allowed to take place in England in the hope that it can gradually increase in frequency, and that the possibility of rehabilitation of the children to their mother should be cautiously explored.
Summary
[75] For all the reasons set out above, I am not satisfied that it is likely that it would be seriously detrimental to the children's welfare for them to reside with their mother, and Permanence Orders will not therefore be made. I was not addressed on the question of expenses, and a hearing will have to be fixed for that to take place.