AV AND SV FOR AUTHORITY TO ADOPT THE CHILDREN KFF AND KCF AGAINST (FIRST) AJF AND (SECOND) IDF

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 103

 

AD19/16

AD20/16

OPINION OF LADY WISE

In the Petitions

AV and SV

Petitioners

for authority to adopt the children KFF and KCF

against

(FIRST) AJF and (SECOND) IDF

Respondents

Petitioners:  Inglis;  Digby Brown LLP

First Respondent:  Aitken;  Balfour + Manson LLP

Second Respondent:  Cartwright;  Morton Fraser LLP

19 July 2017

Introduction
[1]        This single opinion is provided in respect of two adoption petitions, both at the instance of Mr AV and Mrs SV, spouses who reside together in Norfolk, England and who have applied to adopt the children KFF, born 13 October 2006 and KCF, born 11 August 2011.  Mrs SV is the half-sister of the children’s mother, AJF.  The said children have resided with the petitioners continuously since 27 June 2014.  The first respondent, AJF is the natural mother of both children.  She currently holds full parental rights and parental responsibilities in respect of each child.  She opposes the petitioners’ applications to adopt the children.  The second respondent, IDF is the natural father of both children and holds full parental rights and responsibilities in respect of each.  He also opposes the petitioners’ applications to adopt the children.  The respondents are married and reside together in the West of Scotland. 

[2]        I heard a Proof in this matter over a period of eight days.  Affidavits were lodged from all of the witnesses led in the petitioners’ case.  The second respondent swore an affidavit and gave evidence.  The first respondent did not swear an affidavit and did not give evidence.  She was present intermittently during the proceedings.  A detailed Joint Minute was entered into agreeing most of the background facts in relation to these children coming under the supervision of the local authority and being placed in a kinship care placement with the petitioners in 2014.  That Joint Minute (No 31 of process) also contains an agreement, at paragraph 48, that, subject to the court’s approval and in the event of Adoption Orders being made, there shall be indirect contact between the respondents and both children.  That indirect contact is to include cards and letters sent by the respondents to the girls and an obligation on the part of the petitioners to send photographs, school reports and general annual reports in relation to each child setting out their achievements, activities and interests.  There has been no direct face to face contact between the children and their parents since September 2015.  Thereafter there was telephone contact between them until January 2016 when it also ceased. 

[3]        The first respondent’s opposition to the petition, as focused by her counsel, was restricted to an argument that the circumstances of this case did not disclose that adoption, as an order of last resort, was necessary in order to meet the needs of the children.  There was no suggestion on behalf of the first respondent that the children should not remain resident with the Vs in the long term.  However, as no evidence from the first respondent herself was elicited, I am unable to make any findings on her stated views and intentions.  In contrast, the second respondent swore an affidavit and gave evidence.  His position coincided with that of the first respondent to the extent that it was also argued on his behalf that the necessity test for adoption was not met in this case.  However, he presented a much broader defence, contesting some of the evidence of the petitioners’ witnesses in relation to the circumstances in which the children were removed from their care.  He does not accept that it is in the children’s best interests to remain in the care of the petitioners in the long term. 

 

Undisputed Facts
[4]        As indicated there was a large measure of agreement in relation to the background surrounding the supervision of these children by the local authority.  Insofar as material, the relevant parts of the Joint Minute of Admissions relating to that issue are in the following terms: 

“3.       The Respondents and their children came to the attention of North Lanarkshire Social Work Services in November 2011 after the department received reports from police of domestic violence between the Respondents.  Social Work Services have been involved with the Respondents and their children continuously since then.  There had been two previous domestic violence referrals received by the local authority.

 

4.         WG, Public Health Nurse, submitted a Child Protection Referral to social work resources in relation to the child, KCF, then aged 5 months.  Child Protection procedures were initiated by the local authority.  KCF was examined by Dr KR, Paediatrician at Wishaw General Hospital.  The child was found to have sustained an abrasion to the top of her head.  Dr R also recorded that the child had a graze on her right ankle and various light scratch marks over her body.  The child’s pinky finger showed signs that it was healing whereby a new nail was growing. 

 

5.         UD Primary School made a referral to Social Work Services that the child KFF had attended school and was observed to have markings on her face above her right eye. 

 

6.         During April 2012 KCF sustained further injuries to her head.  Three further wounds were observed on her head.  On 3 May 2012 the child KCF’s allocated social worker undertook a home visit where he saw the child and found the child to have a scab inside her ear. 

 

7.         On 28 June 2012 the child was placed in the care of her maternal grandmother, FL, with the consent of the first Respondent only.  During the time spent in the care of FL KCF’s wounds healed.  However, on one occasion one further wound appeared.

 

8.         During July 2012 UP School made a referral to Social Work Services regarding KFF.  Education staff reported that KFF had told school staff that the Second Respondent hit her and that she was fearful of the First Respondent’s nephew, DP.  KFF was interviewed by social work staff and did not repeat the allegation she had made. 

 

9          The cases of KFF and KCF were transferred from North Lanarkshire Social Work Services to South Lanarkshire Social Work Services. 

 

10.       KFF was provided with access to an advocate through the Your Voice Advocacy service.  BM worked with KFF.

 

12.       KCF was medically examined.  The examining doctor, Dr A, assessed that KCF had a cluster of 3 scabbed skin lesions which were of similar oval shape on the top of the scalp anteriorly.  All appear to be excoriated skin lesions.  They looked dry and not actively infected.  These marks were defined by Dr A as being of uncertain aetiology, and possibly related to causation by trauma and possibly infection. 

 

13.       A Child Protection Review Conference was held in respect of the children.  The Respondents provided their voluntary consent to KCF’s accommodation in terms of section 25 of the Children (Scotland) Act 1995. 

 

14.       KCF was returned to the care of the Respondents.  In March 2013 KCF attended nursery displaying fresh wounds to her head. 

 

15.       On 27 March 2013 a Child Protection Order authorising removal of the child, KCF, to a place of safety and the keeping of the child at that place was granted.  On 29 March 2013 K was removed from the care of the Respondents and was placed in the care of local authority foster carers.  KFF remained in the care of the Respondents. 

 

16.       On 29 March 2013 a Children’s Hearing convened in respect of KCF.  A copy of the decisions and reasons for decisions of the Children’s Hearing are produced at pages 6/5/3 and 6/5/4. 

 

17.       On 8 April 2013 a Children’s Hearing convened for KCF.  A copy of the decisions and reasons for decisions of the Children’s Hearing is produced at page 6/5/7 within the Second Inventory of Productions for the Petitioners.

 

18.       On 10 April 2013 KCF was seen at Blantyre Health Centre by Dr KR. 

 

19.       On 26 July 2013 Grounds of Referral were established in respect of KCF at Hamilton Sheriff Court.

 

20.       On 29 August 2013 a Children’s Hearing convened for KCF. 

 

21.       On 9 October 2013 the First Respondent attended at Hamilton Social Work office and spoke to social work staff.  On the basis of allegations made by the first respondent to social work staff Social Work Services made a decision to seek the accommodation of the child KFF into local authority care.  The Respondents agreed to KFF’s accommodation on a voluntary basis in terms of Section 25 of the Children (Scotland) Act 1995. 

 

22.       On 24 October 2013 a pre hearing panel was convened by the Children’s Hearing in respect of KFF.  A copy of the decision and reason for decision is produced at page 6/6/3 within the Second Inventory of Productions for the Petitioners.  On 28 October 2013 a Children’s Hearing convened for KFF. 

 

23.       On 28 October 2013 a LAAC Review was held in relation to KCF.  The LAAC Review decided inter alia:  that KCF will remain in foster care with foster carers L and JP McG;  a permanency planning meeting should be scheduled in relation to KCF.

 

27.       On 20 December 2013 Grounds of Referral were established at Hamilton Sheriff Court in respect of KFF.

 

32.       On 17 March 2014 a permanency planning meeting was held by Social Work Resources in respect of the children.  It was the recommendation of social work resources to the permanency planning meeting that the Respondents would not be in a position to adequately care for KFF and KCF at that time or in the future throughout their childhoods.  The Permanency Planning meeting made recommendations to the Looked After and Accommodated Review that a permanent placement should be sought for KFF and KCF and that a potential permanent placement of the children with the Petitioners would be explored by the local authority.  A copy of the minute of the planning meeting is produced at item 6/125 within the Sixth Inventory of Productions for the Petitioners. 

 

34.       On 23 June 2014 DY, social worker, complied the Parenting Capacity Report in respect of the Respondents.  A copy of the report is produced at item 6/131 within the Sixth Inventory of Productions for the Petitioners. 

 

35.       On 26 June 2014 a Children’s Hearing convened for KFF and KCF.  The Hearing was attended by the First Respondent, by the Second Respondent and his solicitor, by the children’s allocated social worker and by KFF’s advocate.  KFF completed a Having Your Say form for the Children’s Hearing on 26 June 2014.  A copy of the form is produced at 6/133. 

 

36.       On 27 June 2014 the children moved to reside with the Petitioners. 

 

37.       On 21 August 2014 KFF and KCF exercised contact with the Respondents.  The Families’ House supervised contact form complied after the contact session is produced at 6/134. 

 

38.       On 17 September 2014 KFF and KCF exercised contact with the Respondents.  The Families’ House supervised contact form compiled after the contact session is produced at 6/137. 

 

40.       On 14 January 2015 scheduled contact between the children and the Respondents did not take place.  This was because of an error on the part of Families House staff where they failed to collect the children for contact. 

 

43.       On 1 October 2015 a Children’s Hearing convened for the children.  The Children’s Hearing among other things decided to excuse the children from attending the hearing;  A copy of the decisions and reasons for decisions are produced at 6/6/51, 6/6/52, 6/6/60 and 6/6/69.  The Second Respondent appealed against the decision of the Children’s Hearing.  On 20 November 2015 at Hamilton Sheriff Court Sheriff Waldron on the unopposed motion of the Reporter, remitted the case back to the Children’s Hearing. 

 

44.       On 18 February 2016 a pre hearing panel convened in respect of the children.  The pre hearing panel decided to excuse the attendance of the children from the forthcoming hearing.  A copy of decision and reasons for decision in respect of KCF is produced at 6/5/59. 

 

45.       On 25 February 2016 a Children’s Hearing convened in respect of the children.  A copy of the decisions and reasons for decisions of the Children’s Hearing are produced at 6/5/62 and 6/6/104.  The Children’s Hearing also gave advice to the court in respect of the Petitioners application for an adoption order.  A copy of the advice in respect of KCF is produced at 6/5/65 and in respect of KFF at 6/6/107. 

 

47.       The second respondent’s schedule of previous convictions is produced at 6/166 and is admitted.”

 

The Children’s Hearing convened on various other dates in respect of the children but I have listed only those that assist in understanding the chronology of events. 

 

Evidence Led in the Petitioners’ Case
[5]        Evidence was led from Dr KR, an associate specialist in community child health.  Her affidavit at No 20 of process confirms her involvement in examining the injuries found on KCF in January 2012.  Her reports, 6/25 and 6/37 of process are annexed to her affidavit.  On the first occasion she saw KCF the child was only five months old.  There were six unexplained injuries including, but not limited to, two healing abrasions on the head and a healing abrasion on the front of the left ankle.  Of most concern was that the right “pinky nail” showed a healing injury and the nail was missing.  In the absence of any explanation from the parents Dr KR recommended further social work input and support with close health visitor monitoring.  The second medical examination on KCF was on 20 June 2012.  Again Dr KR made a number of findings, including but not limited to, a fairly large fresh raw wound on the top of KCF’s head and a separate missing nail, this time from the left little finger.  There was also a scab on the tip of the infant’s nose, the mother reporting that she had banged her face on the table at home.  Dr KR’s concerns at that stage involved her suggesting that the baby might need to go into temporary foster care to allow the head wound to heal.  She recorded (6/37/2) “mum has admitted picking at the skin wounds”.  There was a significant concern that the child’s wounds were not being allowed to heal.  In evidence a passage from the social work records indicating that AJF had said she had bitten the baby’s nail to cut it and that the nail had come off was put to Dr KR.  Her response was that deciding to cut a baby’s nail with teeth rather than scissors was not so uncommon but the real concern was the removal of the nail itself.  She expressed the view that AJF must have pulled the nail, applying extreme pressure and tearing for the whole nail to come off in the way it had.  Dr KR was not cross-examined. 

[6]        AL, a social worker in Bellshill, gave evidence and spoke to his affidavit No 27 of process.  He has worked as a qualified social worker since 1980.  He became involved with the family when they lived within the local authority area of North Lanarkshire Council.  His involvement was during the period 13 January 2012 until about September of that year.  He had sight of domestic violence referrals involving allegations by AJF that IDF had assaulted her.  On 26 April 2012 he attended at the respondents’ home and AJF disclosed to him that she had been picking the scabs on KCF’s head in order to make her (AJF) feel better.  Mr L’s affidavit also narrates concerns recorded at the time about KFF telling school staff that she was afraid of her father.  An issue arose during his involvement about KFF’s comments to a worker allocated to her from an independent advocacy service.  KFF had apparently disclosed to that worker that her father hit her and also that she was scared of DP, her father’s friend.  Mr L’s involvement with the family ceased on 14 September 2012. 

[7]        Although not cross-examined on behalf of the first respondent, Ms Cartwright cross‑examined Mr AL at some length.  AL accepted that although domestic violence was a concern it had not formed part in the statement for the grounds for referral.  He accepted also that he had observed a close attachment between the girls and their parents.  The difficulty was not in relation to that but about the nature of the injuries to KCF and the lack of explanation as to how they had happened.  He accepted that both parents had cooperated with the social work department in relation to home visits but the first respondent in particular did not seem able to carry out advice from health professionals.  He had suggested a cognitive skills assessment for both parents.  AL accepted that KFF had not repeated her allegation about her father hitting her to him, that it had been to her advocacy worker.  He agreed that there may have been a misunderstanding on the part of the independent advocacy services about whether IDF was opposed to their continued involvement with his daughter. 

[8]        Dr MD, a psychiatrist, spoke to her affidavit No 21 of process and gave brief oral evidence.  She had become involved with AJF when she was referred to the community mental health team by her GP in July 2012.  Her diagnosis was that AJF had suffered a mild depressive episode.  AJF admitted to her that she had been picking her daughter KCF’s scabs and that had been for her own comfort.  She told Dr D that her husband was unconcerned by that.  Dr D recalled AJF saying that she would do such a thing again for her own comfort if the child was in her care.  Dr D’s assessment of AJF’s capacity to change was that she would be unlikely to take on board the need for change and that medication would make no difference.  Dr D was not cross-examined. 

[9]        BC, an experienced social worker and team leader within the Social Work Department of South Lanarkshire Council spoke to her affidavit No 25 of process.  She had professional involvement with the respondents from September 2012 when they moved to the area.  Prior to her appointment as team leader about three years ago she was the allocated social worker for the family.  During home visits to the family weekly from September 2012 BC observed on many occasions the untidiness and uncleanliness of the respondents’ home, details of which are narrated at paragraphs 4, 5 and 6 of her affidavit.  Her department attempted to give the respondents guidance, bought cleaning materials for them and a social work assistant (FK) was particularly involved in trying to assist them implement a house cleaning routine.  KCF had been confined to her buggy on numerous occasions when BC and/or her colleagues visited.  She was not encouraged to weight bear and if not contained within her buggy she would be in a high chair even if not being fed.  There was a lack of oral hygiene and following a referral to the dental hospital KFF required to have multiple teeth removed.  BC described the respondents’ attitude to her involvement as unreceptive.  She formed the view that AJF in particular could not sustain any changes necessary to ensure the safety of the children.  She was a vulnerable woman with mild learning disabilities. 

[10]      There were ongoing concerns about the injuries on KCF’s head and the child was ultimately removed from the respondents and placed into temporary foster care on 6 March 2013.  Thereafter AJF admitted picking the scabs on the child’s head compulsively.  The referral to Dr D was then made.  After KCF was returned to the respondents’ care there was a further wound noticed on her head.  Ultimately a Child Protection Order was sought and granted to remove KCF from the respondents’ care. 

[11]      Contact between KCF and her parents after she was accommodated was recorded as being of poor quality.  IDF was observed to demonstrate low tolerance to both children and to KFF in particular.  On 3 June 2013 he hit her on the bottom and shouted in her face.  This was observed by the social work assistant FK.  There was an ongoing issue in relation to lack of engagement with the children by the parents. 

[12]      There were concerns about the respondents allowing IDF’s brother, WF, a known sex offender, to move into their home and live with them.  This occurred shortly before KFF was removed from the home in October 2013.  While there was no concrete evidence of any specific incident involving WF and the child, KFF’s behaviour gave rise to a concern that something may have happened to her while her uncle was within the home.  It was noteworthy that around this time KFF began to express negative feelings about her father.  In BC’s opinion the respondents found it difficult to understand why the social work department wanted them to make changes in their lifestyle.  They seemed unable to make the connection between an unkempt house and inappropriate visitors and the wellbeing of their children.  They were unable to sustain any change. 

[13]      Under cross-examination by Mr Aiken BC confirmed that by the time the Vs came to be kinship carers of the girls she had been promoted and was overseeing the work of DY, social worker.  She had, however, co-signed the statutory report accompanying the petition.  Various parts of the Adoption Agencies (Scotland) Regulations 2009 (SSI/2009/154) were put to BC in relation to the composition and functions of the local authority adoption panel.  There had been no adoption panel convened in this case for either child as the local authority had not placed them and had not intended to place them for adoption.  There had been a permanency planning meeting before placement with Mr and Mrs V as kinship carers.  The Minute of that meeting (6/125) records that Mr and Mrs V had met the children and had written to the local authority expressing an interest in caring for them.  Because of the blood tie between Mrs V and AJF the placement was recorded as being a kinship placement, albeit that the local authority now supported it being an adoptive placement.  The legal advice the social work department had received was that the children could go to Norfolk to stay with the Vs but that the matter had to go before the Children’s Hearing.  The plan was to reduce contact and that had been approved by the Children’s Hearing.  Initially, it was anticipated that the orders for compulsory measures of care would be transferred to the English system as the girls would be resident there.  In fact that has never occurred. 

[14]      BC was clear in acknowledging that adoption was not the anticipated outcome for the girls when they were placed as part of a long term plan of kinship care.  Both sides had understood that to be the position as illustrated in a letter from the Vs (No 6/129 of process) where they had made clear that they wanted to become kinship carers.  Had adoption been envisaged at that time BC accepted she would have required to have referred the case to the local authority adoption panel in terms of Regulation 12 of the 2009 Regulations.  The blood tie between the girls and their new kinship carers was regarded as a positive factor at the time they were placed.  The local authority was satisfied, having met the Vs on several occasions that they were suitable carers for the girls.  BC was also referred to Regulations 3 and 4 of the Looked After Children (Scotland) Regulations 2009 and also sections 17 and 18 of the Adoption and Children (Scotland) Act 2007.  She was clear that all of the reports prepared in this case were those suitable where the children had not been placed for adoption by an adoption agency but where there is a direct application to adopt as in this case.  BC also confirmed that the proposed change from this being a kinship care placement to an adoptive placement was instigated by the Vs, the local authority having been satisfied with the kinship placement.  She agreed that the thrust of the relevant regulations was to the effect that where better and practicable alternatives to adoption were available they should be pursued and that adoption was only appropriate where necessary in the children’s interests.  She agreed that there was no necessary link between a child living permanently away from her parents and adoption.  It was put to her that the Vs have pushed adoption and that her department were simply commenting positively “after the event”.  BC responded that the Vs took the children on in good faith and as matters had developed they now wished to pursue lifelong care of them in the form of adoption.  She thought that the Vs feel adoption is necessary and she considered that a Residence Order would create uncertainty for the children.  She pointed out that adoption is for life and not just for childhood.  As the Vs have three sons of their own, adoption would create parity between those children and KFF and KCF.  It was for the court to decide whether those advantages elevated adoption to an essential outcome for the children.  BC disputed that the children refer to the respondents as “Scottish mum and dad”.  They had done so but when she saw them recently they did not refer to their birth parents at all.  Both children now see Mr and Mrs V as their mum and dad.  BC agreed that Mr and Mrs V were not seeking to lose the respondents’ surname completely and had proposed double barrelling the children’s surnames to “V-F”.  BC disagreed that this was unheard of in an adoption situation and confirmed that she had come across such a situation before.  She did not think that it would be an important matter to the children. 

[15]      Under cross-examination by Ms Cartwright, BC confirmed that she did not recall seeing any record of the previous social worker (AL) expressing the view that the children had a good attachment with the respondents.  BC had focused on the various problems she had observed herself within the family home outlined at paragraph 10 of her affidavit.  She accepted that there were times when the home conditions were more acceptable but the respondents were not able to sustain any improvement over time.  Various contentions were put to BC in relation to an alleged lack of balance in her affidavit.  The suggestion appeared to be that while she had emphasised the negative aspects of the home conditions, KCF’s late walking and development and the respondents’ unreceptive attitude she had not balanced this with some of the positive improvements recorded in the relevant records.  The witness rejected that her affidavit lacked balance.  Her intention had been to set out the background of the social work department’s observations and consequent concerns, none of which had been allayed by the respondents’ actions. 

[16]      BC had attended supervised contact in Norwich after the girls moved there.  She had found the quality of parental contact to be poor at that time.  This was in contrast with the workers in Norwich who had supervised contact and had expressed a more positive view of it.  In relation to the presence in the respondents’ home of WF, a known sex offender, BC accepted that KFF had never made a direct allegation that she had been subjected to any particular conduct at his hands.  She accepted also that information received from the Vs after KFF moved there talked of her speaking positively about her father in contrast to BCs own experience which was that KFF told her on more than one occasion that she “hated” her father.  BC accepted that the child appeared to have made inconsistent statements about this. 

[17]      In relation to statements said to have been made by KFF that she wanted to be adopted so that she could have a “forever family”, BC confirmed that the expression “forever family” had originally come from looked after children and social work departments had later used it.  Accordingly she rejected the contention that it was not an expression a child would use.  The report of the curator ad litem and reporting officer No 10 of process was put to BC who had not seen it previously.  In relation to a statement attributed to KFF to the curator ad litem when she said that she really wanted to be adopted and that the Vs would then be her mum and dad, BC responded that KFF is a particularly articulate child who might well say these things.  There is a part of the report where KFF appears to have told the curator that she would like to see her natural parents from time to time and speak to them on the telephone, but BC was very clear that the child had recently expressed a different view to her.  She had met and spent time with KFF immediately prior to the diet of Proof and the child had indicated that she did not want to see her natural parents.  While BC did not consider either direct or indirect contact between the girls and their birth parents to be their interests she would implement such an order if made by the court.  BC had not discussed with KFF the legal technicalities of the Vs, who are currently her aunt and uncle being her parents and her birth parents then being her aunt and uncle as a matter of law. 

[18]      A social work record (6/12/4 of process) was put to BC recording that KCF appeared to have taken in a picture of her birth parents to school and referred to them in class as “mummy and daddy Scotland”.  While BC was unaware of that, her reaction was that the Vs were continuing to promote a positive image of the respondents to the children in supporting such an initiative.  It was very clear that the girls refer to and regard the Vs as “mum and dad”.  KCF in particular has no real memory or understanding of the separate relationship with her birth parents. 

[19]      Under re-examination BC reiterated her view that the children’s needs would best be met by adoption in terms of its lifelong commitment, including the same inheritance rights for them as the V’s other children.  She considered that the Vs had shown a commitment to the children.  A number of pages from the social work records (6/12/372, 6/12/367, 6/12/362, 6/12/345, 6/12/342, 6/12/321 and 6/12/298) were put to BC for confirmation that there were numerous occasions on which the respondents’ home was seen to be in a poor and unhygienic condition and that workers had observed the respondents’ dog urinating over the sofa and floor in the home and, on one occasion, a failure to clear up KCF’s vomit from the floor of the house.  Other entries in the social work records confirmed BC’s observations of KCF being routinely strapped into her buggy or high chair and not encouraged to be mobile.  As early as 29 August 2013 (6/12/218) the respondents had stated in strong terms that they would not engage in further relationship work suggested by her department as they saw no need to improve their parenting.  So far as the telephone contact that had taken place after the girls moved to live with the Vs was concerned BC had not really been involved in this but the reports she had received were to the effect that the conversations between the girls and their parents were stilted and short and that was a particular occasion on which the respondents had failed to attend for the telephone call.  Recently, KFF told BC that she does not wish to have telephone contact with the respondents. 

[20]      DY, a social worker since 2006, gave evidence.  He reports to BC and was the social worker to both girls between August 2013 and July 2014 when they moved to England.  He spoke to his affidavit No 22 of process.  He was asked about his reference in paragraph 8 of that affidavit to the respondents’ awareness of the nature of the risk WF might present to young children.  DY confirmed that the respondents both knew that WF had a conviction for sexual activity with a child. 

[21]      Under cross-examination by Mr Aitken DY was taken through some of the reports he had prepared for looked after children reviews in respect of KCF in 2014.  At that time his recommendation had been for her to remain in her foster placement.  He confirmed that in June 2014 the social work department had received a letter from the Vs, perhaps following up a telephone call, in which they offered to be kinship carers.  DY had sent out a standard reference form to four individuals named by Mr and Mrs V as referees.  At that time the assessment of kinship carers was less formal.  There are now new procedures that require a more robust assessment by a kinship care panel.  He recalled that there had been an anticipation that the Supervision Orders in respect of the girls would somehow be transferred to Norfolk following the move but that did not take place.  Adoption was never anticipated at that time, the focus was a kinship placement.  DY was clear that if the Vs had not come forward as carers for the girls his department would have been looking to secure permanence for them through adoption by strangers.  Again the Adoption Regulations were put to DY who confirmed that as adoption was never considered during his involvement with the family there had been no need to refer the matter to the adoption panel.  A report prepared by DY (6/132 of process) is consistent with there being no change in status for the girls at that time as adoption was not in contemplation.  DY’s assessments of the Vs in 2014 was very positive, albeit that what he was being asked to recommend was for them to be kinship carers rather than adoptive parents.  There was a single reference in his affidavit to it having been agreed through the permanency planning process that adoption was the best outcome but DY confirmed that the relevance should have been to kinship care.  When asked about a reference in his affidavit (paragraph 46) to adoption being more suitable because other orders would be subject to challenge, DY indicated that it was his understanding that a Residence Order would be subject to a similar process of review that in place for children looked after under a supervision measure. 

[22]      Ms Cartwright for the second respondent cross-examined DY on a number of matters.  He agreed that the records illustrated that by 28 October 2013 the local authority’s plan for KCF was permanence.  He agreed that he had been aware that KFF had attended Sunday school with her parents though he was not sure what church the respondents attended or that the Pentecostal church characterised by baptism taking place by full immersion.  A report completed by him in September 2013 (6/101 of process) was put to the witness.  He had included therein a summary of risk factors and protective factors in relation to the respondents insofar as relevant to parenting issues.  He agreed that the couple had made themselves available for all social work appointments and groups at that time although the second respondent had advised very clearly that he did not need or want relationship or parenting work.  His recommendation at that time had been that KFF should remain subject to compulsory measures of care but reside with the respondents.  Clearly that recommendation had subsequently changed.  In relation to the witness’s understanding of incidents of domestic abuse involving the second respondents, he agreed that IDF had a domestic assault conviction dating from 2009, three domestic abuse referrals in 2011 albeit that two of them had not proceeded further and another referral in 2013 by the first respondent in relation to an alleged incident involving her husband although this again had not progressed.  DY recalled also that following his report of September 2013 the second respondent had been referred to be put on a waiting list for a fathers group but he did not take the place up once it became available.  His very clear recollection was that the second respondent had refused to take up any referral offered to him. 

[23]      Following a failed rehabilitation attempted between the respondents and their younger daughter KCF in 2013 it had been made clear to the couple that if they could not change then they would not be able to look after either child in the longer term.  By December 2013 it was agreed that DY would meet with KFF to explain that adults would take decisions about her long term future and that she was not to worry about it.  Although she was only seven years old at the time she was considered to be very able and she asked questions about what was going to be happening to her.  In February 2014 DY completed a parenting capacity assessment in respect of the respondents’ responsibility to care for KFF.  His broad conclusions are summarised at paragraph 24 of his affidavit.  He accepted that his conclusions were negative because there were very few positive or protective factors at that time.  He accepted that KFF wanted to see her parents, he did not find that surprising.  A seven year old child would want to see their parents even though those parents were incapable of looking after her.  He had observed that the respondents struggled to respond to KFF in a way that would create an attachment.  For example, they did not acknowledge her when she entered a centre for contact, taking time before they would respond to her.  He accepted that sometimes contact between KFF and her parents had gone well and that his intention at paragraph 24 of his affidavit had been to summarise concerns rather than any isolated positive factor.  DY did not accept that KFF was consistently wanting to return to her parents at the end of 2013.  She was ambivalent about returning home, although she was keen to see her parents, particularly her mum.  In relation to WF the second respondent would say to KFF, inappropriately, “you’ll come home as soon as W is caught by the police”.  DY accepted that statements like that from the second respondent were perhaps more inappropriate than untrue.  As far as KCF was concerned, at a Looked After Children Review in May 2014 a report (6/127 of process) had recorded that the child had been “self soothing” since staying with her grandmother and techniques had been put in place to distract her from that.  There was also uncertainty in relation to her development at that time although immediately prior to her move to the Vs she had been in a very positive foster placement and things were improving.  DY accepted that his assessment of the Vs had been based on references and two or three meetings with the couple.  Their third son, EV, is autistic and has associated difficulties.  DY had discussions with the Vs about how they manage EV and he had spoken also to the pastoral teacher at the boy’s school.  There was nothing adverse to report.  Contact had been made with the V’s general practitioner who had advised that there were no issues militating against the plan to kinship care.  The respondents had been given an opportunity to meet with the Vs at the time progress was being made towards the kinship care placement.  The second respondent had refused to meet them.  The first respondent had initially said she would do so but subsequently declined to attend, despite DY’s encouragement. 

[24]      In relation to paragraph 46 of his affidavit, DY had understood that there had been more than one appeal by the respondents against decisions of the Children’s Hearing but when it was put to them that there was only one he accepted that his recollection could be wrong. 

[25]      In re-examination on the issue of the domestic abuse incident referrals received, DY confirmed that he had received information about one of the incidents on 30 December 2013 electronically.  He did not have direct knowledge of the alleged incident. 

[26]      The second petitioner, Mrs SV gave evidence and adopted her affidavit No 28 of process.  She was asked to elaborate on the current circumstances relating to her son EV who is 15 years old.  She confirmed that EV attends a specialist academy for children with emotional and behavioural difficulties and that he was diagnosed about a year ago with Asperger’s Syndrome and ADHD.  He takes medication and is stable.  For a short period of time when he was 11 years old he attended school on a residential basis so that the school could become more familiar with his needs.  Since then he has lived at home and is settled and content.  He enjoys his computer and has taken very positively to adopting a sibling role to the two girls, who now regard him as their big brother.  Mrs V confirmed as narrated in her affidavit that she was adopted as a child and had required to come to terms with an absence of a sense of heritage.  She considers that her own experience has given her insight into adoptive placements and her desire is to make adoption a very positive experience for KFF and KCF.  She described KFF as “fiercely Scottish” and takes a pride in that.  Mrs V is also very Scottish and has enjoyed talking with KFF with aspects of their shared Scottish heritage.  She confirmed that KFF is well aware that the respondents are her birth parents.  KCF has some understanding of that also and still sometimes refers to the respondents as “mum and dad Scotland”.  Mrs V has worked on KFF’s life story with her and they have enjoyed tracing the family tree back to the 18^th century.  They keep photographs of the respondents in the girls’ bedroom, together with other photographs of maternal relatives. 

[27]      Mrs V had seen herself the unclean environment from which the girls had been taken into care.  When she first met AJF she realised her limitations.  In particular, AJF found it difficult to speak in any meaningful sense on the telephone.  Subsequently, Mrs V observed that telephone contact between the respondents and the girls was frustrating and distressing for KFF and KCF.  They wanted to tell the respondents what activities they had been enjoying but they would receive no response.  Afterwards they would be tearful and required cuddles.  Mrs V was confident that the girls understood the reasons for telephone contact stopping and KFF has not mentioned the subject since then.  Mrs V felt that the cessation of telephone contact had been beneficial because of the distress the calls had been causing the girls. 

[28]      In about November/December 2013 the Vs had received very unpleasant texts from the second respondent after they had approached the social work department with a view to being kinship carers.  When the girls were first with them, KFF had a fear of being touched in the night.  She always wanted someone with her when going to bed.  She described to Mrs SV feelings of people touching her when she had awoken from a nightmare. 

[29]      Mrs V explained that she and her husband had come to believe that adoption would be the best possible outcome for the girls after having committed to their day to day care, seeing the effect the telephone contact was having on them and discussing how best to seek an order that would give them complete emotional stability and security for the future.  She was very clear that the paramount consideration for her was that the girls receive that emotional stability for the rest of their lives (as opposed to just for childhood).  There had been real problems securing consent from the respondents for events such as school trips.  Currently this involves forms requiring to be sent to social services who await a response from the respondents which is either delayed or not forthcoming.  The point had arrived where KFF understood what was happening and became concerned by it.  There was one particular occasion on which KCF was unable to go on a school trip as a result of the respondents’ failure to give consent. 

[30]      On the girls’ health, KFF has been diagnosed as asthmatic but is otherwise fine.  There are concerns about KCF who has received a course of therapy and the possibility of her having a disorder such as ADHD have been raised.  KCF has attended a paediatrician and no decisions have yet been made about any form of treatment.  On the agreement for indirect contact in the event of adoption, Mrs V confirmed that she was willing to support that.  There had been some difficulties in the past with cards that were not age appropriate being received by KFF.  The respondents had sent some presents but they were always pens and other types of stationary.  The girls had become unimpressed by that and with clothes the wrong size being sent to them.  On the whole, however, she acknowledged that the respondents tended to send something on the correct dates of the girls’ birthdays. 

[31]      Under cross-examination about her own adoption by Mr Aitken, Mrs V clarified that to some extent her own adoptive placement had worked in that she was cared for but she had felt her emotional needs were overlooked and that had made her determined that KFF and KCF would have only positive experiences of adoption.  Mrs V did not accept that KFF was experiencing divided loyalties and felt she is more than capable of stating her own thoughts.  While any statement that the child regards herself as “torn in two” would have to be respected, Mrs V felt able to pursue anything that could repair such a feeling in her.  On being asked when she and her husband had first raised the issue of them being kinship carers to the girls, Mrs V confirmed that as early as November 2013 after she heard that KFF was in foster care she spoke by telephone to DY and asked if it was a possibility.  BC and DY came to visit her and her husband shortly thereafter.  It was put to Mrs V that in a report to the Children’s Hearing of February 2016 for an annual review a list of positive factors in relation to KFF included that she keeps good health, that she is thriving in the kinship care placement, that she is very able academically, independent and responsible, that she has many friends and that she is safe and secure in the positive bond she has with the Vs.  These positive factors had all developed during her placement with the Vs.  Mrs V agreed also with further comments in the report that she and her husband were committed to offering both girls secure and long term care, that both girls know that their principal carers are not their birth parents and they understand their position in their family tree albeit that KFF does refer to the Vs as mum and dad.  Mrs V agreed that the kinship care placement provided consistency and continuity of care for the girls, that it has subsisted now for some years and that it ensures that the sisters are cared for together in an appropriate familial unit.  She agreed also that the love and affection that she and her husband have for the girls is in no way conditional on adoption being granted and that the secure and happy living arrangements that they provide would continue regardless of the outcome of these proceedings.  Nothing would change in terms of the girls’ schooling, hobbies or wider family.  Mrs V identified late 2014 as the time she had come to the view that adoption would be the best thing for the girls.  At that time the girls had continued to have contact with the respondents and it was having a detrimental effect on them.  There had been a dispute about whether contact should cease and the parents had been initially successful in appealing the decision of the Children’s Hearing to terminate contact but thereafter the safeguarder concerned had changed position and felt termination of contact was best.  That had not caused Mrs V to rethink any plans about adoption.  Although the children were already part of her family she wanted them to be her daughters.  She acknowledged that technically that meant the respondents would in law become their aunt and uncle.  She confirmed that the children will take a double-barrelled surname “VF”.  When it was put to her that this surname was not identical to her own she replied that it was K’s choice and also that she felt out of respect for the birth parents that there was no difficulty including their name within the proposed new surname.  It was put to her that it was odd for people fully part of the same family to have different surnames.  She said that she did not think “in this day and age” it was odd at all.  Mrs V accepted that she was not familiar with the detail of orders short of adoption such as a Residence Order which she thought might involve continuing social work department input and possible annual review by the Children’s Panel.  On further questions being asked about parental responsibilities and rights Mrs V freely accepted that she did not fully understand the legal position.  She explained that they had looked at different orders that could be granted in England and in Scotland but appeared problematic because of the different legal systems involved.  Eventually having taken advice they considered that adoption was the only reasonable route.  The legal advice the Vs had taken was in Scotland and they had not taken any such advice in England.  Mrs V was clear that she would continue to promote the children’s heritage and that adoption would not change the fact that the respondents are their birth parents.  What she and her husband wanted was to be the girls’ parents legally and to have all the associated rights that would secure the children’s position. 

[32]      Under cross-examination by Ms Cartwright about her son EV, Mrs V confirmed that although no formal diagnosis had been given to her and her husband until last year, they had known since he was aged 5 that he was on the autistic spectrum.  He does not have considerable care needs.  The only difficulty he has is relating to individuals on a one to one basis.  However due to his age and the development of coping strategies he has learned how to behave and interact.  So far as her own health was concerned Mrs V confirmed that she suffers from myalgia which is closely linked with chronic fatigue syndrome/chronic pain syndrome.  She was 38 when the symptoms started.  She was seen by a consultant, diagnosed and given medication.  She has now been stable for 11 years and copes well on a day to day basis.  Her hope and expectation is that her health will remain the same as it is.  Her condition did vary to the extent that there were days when her energy was low and she required to rest while the girls were at school.  The condition does not require the girls to help around the house although sometimes they do so.  They are not required to push Mrs V in a wheelchair. 

[33]      Mrs V agreed that KFF has a passion for football that dates from the time she was living with her birth parents.  KCF has more complex needs than KFF although she is not displaying as many challenging behaviours as she did when she was first resident with the Vs.  A record from an educational psychologist of involvement with KFF dated June 2006 (6/159 of process) was put to Mrs V.  That documented KFF’s barriers to learning and absence of self-regulation skills.  The position was that ADHD will be explored but KFF has had no current diagnosis.  She does have a poor memory and she is repeating her reception year at primary school.  The issue is one of ongoing concern and KFF may well require to see the paediatrician again. 

[34]      Mrs V was asked about the relationship she has with the children’s birth family including her own birth mother, FL.  She explained that she had no current contact with the first respondent or with FL.  She had forged a positive relationship with both of them but when she told FL that she and her husband were becoming kinship carers for the girls contact ceased.  That had not been her choice.  She disputed that KFF would view this lack of relationship as a source of conflict.  In relation to the texts and voicemail message the second respondent had left on Mrs V’s phone it was suggested that he had apologised to her at a Children’s Hearing but she confirmed that he had not and that the way he had spoken in the voicemail was not just unpleasant but nasty.  Mrs V accepted that looking to the future there was some benefit to the girls of indirect contact with their birth parents.  However she continued to regard telephone contact as detrimental although if ordered by the court she and her husband would of course facilitate that.  If it continued to be distressing for the girls they would try to help them come to terms with it.  She understood that if the Adoption Order was granted social services would no longer be involved and she would require to communicate directly with the respondents in relation to any indirect or even telephone contact.  Mrs V and her husband are involved in the Salvation Army although the children do not currently go to Sunday school as KFF has a football commitment on Sunday morning.  They attend a Church of England school where prayers and grace are given before meals.  Although the Salvation Army does not practice baptism, there is a service of dedication for any infant which is similar to baptism.  In relation to the photo of the respondents taken by KCF to school, Mrs V explained that there was some confusion about this in that they had received a text message from the school and thought every child had to take a photograph in.  In the event it was only KFF who required to do so but KCF wanted to do the same.  As a result of them not having any responsibilities and rights at the moment she is unable to speak to the school about such projects. 

[35]      Under re-examination Mrs V confirmed that nothing had been communicated to her and her husband about any desire on the part of the respondents that the children be baptised when they came to live with them.  So far as KFF’s views on adoption were concerned, the curator ad litem’s report (No 10 of process) was put to Mrs V, in particular a passage that stated that KFF really wanted to be adopted, have a new start in life and have a forever family and that she would be really sad if adoption was not ordered.  Mrs V confirmed that she was aware of KFF’s view and that this passage coincided with what she understood.  She regarded KFF’s views as extremely important possibly even a paramount consideration. 

[36]      Evidence was led also from KE, who took over as lead social worker to the children in mid-August 2016.  She adopted her affidavit on No 23 of process other than that she wished to delete the statement within it (at paragraph 22) that KFF would hide in a room and not want to attend contact as having been an error.  That apart, her examination in chief comprised her affidavit which spoke to her limited contact with the children since she took over. 

[37]      Under cross-examination KE agreed that she had read the files carefully when she took over as social worker to the girls.  She had noted from those that the social work assistant FK had a meeting with KFF in November 2015 when the child said that she wanted to be adopted.  She agreed that a passage in paragraph 22 of her own affidavit about KFF having heard about the benefits of adoption and feels she would benefit from them came from the earlier note of the meeting between FK and KFF but also from a meeting KE herself had had with the child in October 2016.  At that meeting KFF had not mentioned her birth parents at all.  As far as the social work record of the November 2015 meeting was concerned that was put to the witness (6/8/42 of process).  In that detailed note it records that there had been a discussion with KFF about long term plans.  KFF had asked if she would need to change her surname if she was adopted.  She had also said that she would like to stay with the Vs until she was an adult.  There was also a record of her having said she had “split herself into two, a happy side and a sad side” in relation to the termination of contact with her birth parents.  The witness agreed that there was no record in the notes of the benefits/disadvantages of adoption being explained to KFF at that time.  At the October 2016 meeting there was a record referred to in KE’s affidavit of FK having asked KFF at that meeting if she knew what adoption would mean.  It was then recorded that it had been explained to her that the Vs would become her mum and dad and be able to make decisions for her and sign consent forms.  KE confirmed that her legal understanding is that while there might be other orders that would enable the Vs to give consent for school trips and the like adoption was a lifelong order and so had that additional benefit that it would not be subject to any form of annual review.  She emphasised that it was the lifelong commitment that for her made the difference between recommending adoption for these girls and any other form of order.  She accepted that it would not have been explained to KFF that there were options short of adoption that would enable the Vs to give consent to school trips.  She accepted that the record of the meeting of 4 October 2016 (6/8/9 of process) appeared to link the concept of adoption with the signing of consent forms for school trips such that KFF’s positive views might be seen to be linked to that.  It was also recorded at the meeting that KCF had identified her birth parents as “mummy and daddy Scotland” but had not been able to expand on that.  On the issue of it having been the Vs rather than the social work department who have driven the adoption proceedings, KE pointed out that the needs of the children had changed since they were first placed.  Kinship care is reviewed every year by the Children’s Hearing.  It was now appropriate for the more certain arrangement of adoption to be put in place.  She also regarded it as important that the girls be given the same inheritance entitlement as Mr and Mrs V’s own children.  KE appeared to think that a Residence Order had to be reviewed annually although she agreed that there was no need for a compulsory Supervision Order if a Residence Order was made instead of adoption.  She had some understanding that a Residence Order could still be challenged by the birth parents in future.  She thought that if Mr and Mrs V had only a Residence Order in relation to the girls’, parental responsibilities and rights would all still remain with the birth parents. 

[38]      Ms Cartwright also cross-examined KE, who confirmed that there had been no looked after children review in this case since August 2016.  She had agreed that there had been no discussion with KFF that if adoption was granted her birth parents would become her aunt and uncle as a matter of law.  The advantages and disadvantages of adoption had not been discussed with KCF at all as she was too young to understand.  She agreed that KCF thought of the respondents as her Scottish mum and dad and had on occasion expressed the view that she was thinking about them.  She agreed also that KFF’s views on whether she wanted contact had not been consistent.  So far as KCF’s health was concerned, KE confirmed that her understanding that the ADHD assessment was not ongoing because KCF was still so young.  The concerns related more to how things might develop in future.  There were no physical health issues so far as KCF was concerned.  A document in which KFF had written down her feelings about her parents was put to KE, 6/153//4-6 of process.  She accepted that the child had not written that she was scared of her father, more that she was worried about what he might do to her during contact.  While KE had used the word scared in her affidavit, she accepted that anxious might have been a more accurate word. 

[39]      Under re-examination KE confirmed that the views expressed by KFF to the curator ad litem, namely that she wanted to be adopted in order to achieve a new life as part of a forever family with the Vs were consistent with those expressed by KFF when she had visited her about two months after the preparation of that report.  She confirmed that KFF and KCF have a very strong bond and it would be bound to cause anxiety and distress if one was adopted and one not.  The affidavit of the second respondent sworn on 23 January 2017 was put to KE.  In particular a passage in which he appears to have said on oath “I accept that at the moment the children have to stay with the Vs because nothing else is possible just now” was put to her.  KE confirmed that she thought it would cause considerable uncertainty and anxiety for the children if they could not be reassured that this was a much longer term arrangement.  Mr and Mrs V themselves had been under a significant amount of strain.  She felt it would be best all round if the anxiety and uncertainty could be put to an end.  She was quite clear that the respondents were not able to understand what was in the children’s interests not having had face to face contact with them for some time. 

[40]      Evidence was led also from AH, a qualified social worker with South Lanarkshire Council since 2009.  She had been involved with the children between January 2015 and August 2016.  KE had taken over from her.  When AH became the children’s social worker in January 2015 the girls were already living in Norfolk with Mrs and Mrs V.  AH had sworn an affidavit (No 24 of process) setting out the detail of her involvement and she adopted that as true and accurate.  She had signed the necessary section 19, reports in relation to KFF and KCF for these proceedings (No 6/3 of process) together with BC her team leader.  Her recommendation remained that it would be in the girls’ best interest to be adopted.  She thought that the Vs had first raised the issue of adoption in about April 2015. 

[41]      AH and the social work assistant FK had supervised contact between the respondents and the children when it was still direct and ongoing.  She had noticed that such contact had a generally negative impact on both children and she supported the decision to terminate it.  The second respondent in particular appeared unable to play with KFF without matters becoming competitive.  There had been no observation of the typical encouragement or praise one would expect in a parent/child situation.  After supervised contact had been terminated through the Children’s Hearing in October 2015 KFF had been ambivalent about the position but later opened up to AH about her feelings and said that her dad had made her feel angry and worried when contact had taken place.  Insofar as the telephone contact that had subsequently taken place was concerned AH did not supervise all of them but had been present for one or two.  She confirmed that there had been very limited engagement between the respondents and the children with a poor level of communication and interaction being exhibited.  Although the social work department had not restricted the calls it became an awkward experience and they were always short.  The relationship between the social work department and the respondents had deteriorated after about February 2016.  At that point, following an appeal against the termination of contact the matter had been remitted back to the Children’s Hearing who decided that contact would be terminated.  AH found she was unable to get in touch directly with the respondents after that.  They had not turned up for the last telephone contact on 16 February 2016.  She had attempted to telephone them, write to them and visit their house but no method worked and she could not get in touch. 

[42]      AH also recalled the problems there had been with securing the respondents’ consent to activities and school trips.  In March/April 2016 a number of consents were needed for the new school term but the respondents simply failed to respond to requests for those.  Accordingly KCF had missed a planned forest activity at school.  During the period of her involvement, AH had noticed that the respondents continued to minimise the risks of significant harm to the children when in their care.  She felt that they had at best limited capacity to change.  She felt strongly that if the children remained subject to supervision of the Children’s Hearing their future would be uncertain and subject to various appeals on decisions made.  Her view was that the children needed to be settled and claimed by Mr and Mrs V on the basis of lifelong commitment. 

[43]      Under cross-examination by Mr Aitken it was put to AH that her affidavit was incorrect in relation to the timing of when the decision to pursue adoption was made.  She was clear that the potential adoption was not discussed until after she became involved.  The previous care plan had been for kinship care.  However, although the local authority had not been considering adoption, when the Vs suggested it the local authority were supportive.  There had been no reference to the adoption panel because a direct petition had been contemplated.  While it might be unusual for either foster carers or kinship carers to change matters such that they sought adoption, AH was clear that everything had been done by discussion and agreement. 

[44]      AH had seen KFF the week before the Proof.  The only context in which the child had referred to the respondents as “Scottish mum and dad” was that she was talking about her mum and dad and was asked by AH to clarify to whom she was referring.  When she refers to mum and dad she means Mr and Mrs V.  She is of course very aware that the respondents are her birth parents.  An understanding of the past is not inconsistent with her feeling of being part of her new family.  KCF, being younger, has felt fully committed as part of the V family from the outset.  It happened naturally.  KFF’s place in the V’s family had been enhanced by both the termination of contact and the knowledge she had that Mr and Mrs V wanted to adopt her.  Although AH agreed that the children were thriving in their current placement and would continue to do so whether or not the order sought in the petition was granted, she felt that only an Adoption Order would give them a feeling of greater security.  AH agreed that the report she had prepared for a review hearing in April 2015 (6/149 of process) concluded and recommended that the kinship care placement should continue and the contact be terminated.  She agreed that if she had been considering adoption at that stage she would have required to refer the matter to the adoption panel.  An identical conclusion on this was reached in respect of both girls.  A later report of February 2016 was put to AH.  This was a report for a review at the Children’s Hearing (No 6/155 of process).  The report records KFF’s understanding of who her birth parents are.  She was said to have a good sense of understanding her current care arrangements and future plans.  AH confirmed that KFF had regularly asked reassurance that she would remain in the care of the Vs.  She felt that the termination of contact had given KFF a “sense of permission to settle” with Mr and Mrs V.  AH accepted that as late as February 2016 her recommendation had been that the kinship care placement should continue.  Although Mr and Mrs V had made the suggestion of seeking to adopt the girls at that time the local authority had not prepared the necessary reports and continued to recommend kinship care until they had considered the adoption proposal.  AH was firm in her view that she considered adoption the best option for these children against any of the available alternatives.  She had an understanding of the effect of a Residence Order as something that could be challenged on a change of circumstances.  It would not automatically give Mr and Mrs V parental responsibilities and rights and would result in parental responsibilities and rights being shared between them and the respondents.  She agreed that there were routes by which Mr and Mrs V could secure decision making powers for the children and care for them until adulthood but only adoption would give them the lifelong commitment.  AH accepted that her knowledge of the difference between (i) the current situation, (ii) a Residence Order perhaps with granting additional parental responsibilities and rights and (iii) adoption had increased since she prepared her report.  She had read up on the matter in preparation for coming to court.  AH was not aware that the respondents would be in a position to seek leave to apply for contact even after an adoption and was unsure of the tests applicable for reviewing orders such as Residence Orders.  A letter was put to her from Norfolk and Suffolk NHS Trust (6/146 of process).  The letter, dated 24 April 2015, asks whether a “Special Guardianship Order” is being sought in respect of the Vs and the children.  AH confirmed that she had seen that letter but had not enquired as to what a Special Guardianship Order was.  When it was put to AH that KFF had been excited about her adoption because she thought that would give Mr and Mrs V the decision making power in respect to consent to school trips and the like, AH said that was only a small part of it and that KFF has been attracted more by being fully claimed in Mr and Mrs Vs’s family.  Although she already felt claimed by them emotionally, there had always been a level of uncertainty about her future.  AH had been told by KFF in March 2016 that although she wanted to be adopted she did not want to change her surname.  AH was not aware of the current plan to double barrel the surname so that it would be “V-F”.  She agreed that to some extent KFF had divided loyalties although she did not think that KFF’s comment that she had split herself in two related to cessation of contact with her birth parents.  She agreed that she had to some extent been an inconsistency between KFF’s desire for some contact with her birth parents and the usually understood concept of adoption but given her age and that the respondents were her birth family this was not so unusual.  She agreed that KFF had not been told that there was a mechanism other than adoption and that the issue of consent to school trips and similar activities could be resolved. 

[45]      Ms Cartwright cross-examined AH at some length.  The issues covered included the absence of Looked After Children Reviews following the children’s kinship placement with the Vs, AH confirming that this was because the children were not in a foster placement and had moved to Norfolk.  On the issue of the V’s youngest son EV having ADHD and Asperger’s Syndrome, AH confirmed that she did not consider that EV’s condition impacts on Mr and Mrs V’s ability to care for the girls.  The situation is so well managed by the couple that AH did not think it was a relevant matter.  AH had no knowledge of KFF expressing any recent view for face to face contact with her parents.  When asked why it had taken so long to prepare the section 19 reports following the proposal to adopt, AH confirmed that she had required to read all of the background paperwork to the case and fit it in with her various other commitments. 

[46]      A telephone conversation between AH and a school nurse who had dealings with KFF was put to the witness – 6/8/14.  The telephone call had post-dated AH’s report which is why there was no reference to it as she was unaware she could make any subsequent changes.  AH had heard KFF (but not KCF) refer to her parents as “Scottish mum and dad” but only in the past.  When AH had met with KFF to discuss adoption she had not raised with the child that the respondents would effectively become her aunt and uncle.  However she explained that the child had a clear sense that the respondents would continue to be her birth parents but that Mr and Mrs V would become her mum and dad.  She did not dispute that KFF continued to have some loyalties to both the Vs and her birth parents.  On the lack of a formal assessment of Mr and Mrs V since DY’s assessment, AH confirmed that she had contacted the same referees as DY had, albeit that she had not recorded that in her section 19 report.  She had observed both Mr and Mrs V in their home and did not understand there had been any change in their health or circumstances since DY’s assessment.  While Mrs V does have some mobility problems she is mobile within her own home and her health appears stable. 

[47]      Ms Cartwright asked AH a number of questions in relation to the contact that was supervised in Norfolk.  Records taken by others noted a number of positive features.  These did not accord with AH’s own observations.  Having observed contact subsequently, AH’s view was that contact was not a positive experience for either child.  She had noted poor interaction between the respondents and the girls and a lack of enquiry about their activities.  A report dated 27 July 2015 from the safeguarder appointed by the Children’s Hearing was also put to the witness – 6/5/35.  AH did not dispute that at that time it appeared that KFF wanted to see her mum and dad.  However there was a dispute about whether the safeguarder had properly represented what the Vs had said about KFF’s feelings if contact stopped.  The detail and conclusions of the safeguarder’s report were all put to the witness.  Initially he had recommended face to face contact.  However in a subsequent report, 6/6/73 dated 2 January 2016 the safeguarder had changed position following a review.  AH did not dispute that KFF over the period in question had expressed mixed views in relation to the issue of direct contact with the respondents.  However the ultimate conclusion of the safeguarder had been that KFF was more settled in Norfolk than she had been at the time of his first report and that the cessation of face to face contact had been positive for her.  At the time of the safeguarder’s supplementary report KFF had expressed the view that she was happy with monthly telephone contact with her parents.  However no order had been made to that effect and telephone contact (which the safeguarder had recommended only with the first respondent) had come to an end.  AH agreed that it was always possible that KFF’s views would be subject to further change as would her needs.  However she was very clear that to re-establish face to face contact between the respondents and KFF would not be in the child’s interests – KFF is aware that she could seek to have telephone contact with the respondents and can communicate with them through cards and other correspondence.  AH accepted that insofar as KFF had expressed views to the school nurse these should be taken into account and that the nurse had played an important role in KFF’s voice being heard in the dispute.  While her affidavit had not narrated the different views on contact that had been reached by those supervising in Norfolk and at the earlier stage of the safeguarder’s investigation, AH confirmed that she had been aware that those different views would be part of the evidence in the case.  On that basis she did not consider that her report lacked balance. 

[48]      Under re-examination the full conclusions of the safeguarder in his second report were put to the witness – 6/6/79, who confirmed that this accorded with her recollection.  From her own observations she saw KFF increase in confidence after the termination of direct contact with the respondents.  It appeared as if a “weight of worry” had been lifted from her shoulders.  AH considered that KFF is no longer subject to conflicted or divided loyalties in the way that she was last year.  She knows who her birth parents are but is completely secure with the Vs.  However it was likely that her conflicting loyalties would return if the Adoption Order was not granted.  The order sought would result in the end to any social work department involvement and would allow KFF to settle and to be an ordinary ten year old with a family.  She considered that it would be very difficult for the children if the respondents “had a say” in the sense of retaining parental responsibilities and rights as she considered that the Vs need to be given the opportunity to make all the decisions for the girls.  Any role for the respondents might restrict the girls’ opportunities.  She was concerned that the second respondent’s position as stated in his affidavit was restricted to supporting the children staying with the Vs “just now”.  This coincided with the impressions she had formed of the respondents’ perception of their parenting abilities.  The second respondent in particular had openly said to her that he did not feel he had done anything wrong and had not acknowledged his failure to protect both girls.  Only adoption would let the children know they have lifelong security in AH’s view.  They need as much certainty as possible that their circumstances will not change. 

[49]      AH was taken to a number of entries in the social work records – 6/12/50, 6/12/51 and 6/12/48 which recorded problems with direct contact in August and October 2015.  AH reiterated that she considered that only adoption would give these girls the security they need.  They had not enjoyed a positive start to life and their need for ultimate security had to be seen in that light.  KFF in particular knows that adults are in court discussing whether she should be adopted and she would feel let down and disappointed if the order was not granted.  The younger child KCF was now showing complete attachment to the Vs and detachment from her birth parents would benefit hugely from the lifelong security that adoption would bring. 

[50]      FK, a social work assistant also gave evidence in the petitioners’ case.  She spoke to her affidavit No 26 of process which she adopted as true and accurate.  She explained that her work involves supporting social workers, providing practical assistance within family homes to try and improve situations where parents had difficulties coping.  She began working with the respondents in 2012 and has been involved continuously since that time.  As detailed in her affidavit she purchased cleaning materials for the respondents’ kitchen and bathroom which were the areas of most concern.  In general terms the home conditions were poor.  The second respondent had become aggressive when challenged about this and FK would try to explain that a clean house would benefit the children.  A similar position arose with food and nutrition.  The respondents would buy Pot Noodles and sausages rolls, sweeties and sugary drinks for the children.  Both respondents seemed either unwilling or unable to plan nutritious meals for their daughters.  FK also had made direct observations of KCF being kept in her buggy within the home.  She had hoped to encourage the respondents to engage in a programme that would help them with attachment and resilience as parents.  This was difficult for them and although the department tried to persevere there was very little change.  The first respondent did attend a 14 week programme of “Mellow Parenting” to try to build attachment but again she had been unable to sustain any change thereafter.  The second respondent’s approach whenever he did engage with any work was that he would be present physically but lie on the sofa sleeping or reading and did not actively participate. 

[51]      On the issue of WF, the convicted sex offender allowed to stay in the respondents’ home, the first respondent had told FK that WF had been hiding in the loft of the property each time the social work department arrived – that had gone on for about a fortnight.  The first respondent also acknowledged to the social work department that she had been assaulted by WF.  FK’s observations of contact between the respondents and the girls had found the second respondent to be too directive in any play with the children and would only engage with them for short periods.  On 27 June 2014 a contact visit had been arranged so that the respondents could say goodbye to the children on their departure to Norfolk and offer reassurance to them.  FK personally told both respondents of the date and time and when they did not turn up she tried to telephone them.  The first respondent eventually did attend and say that she knew the second respondent was not attending so did not feel confident enough to go on her own.  FK had seen both girls immediately prior to the diet of Proof.  She described them as both extremely settled and relaxed in Norwich both in their educational environments and at home.  A recent change was that until 2016 KFF had always asked her how the respondents were doing but had stopped that.  During the most recent visit both girls had referred to the Vs as mum and dad such that the social work department had to clarify whether they meant the respondents or the Vs.  KFF had told FK she was excited about being adopted.  She had spoken to her school class about it with a surprising level of confidence.  She did not ask at all about her birth parents and had mentioned wanting to hold a party with her friends to celebrate her being adopted. 

[52]      Under cross-examination by Mr Aitken FK confirmed, as had other witnesses from the social work department, that the original plan had been for a kinship placement with the Vs and not for adoption.  She accepted that in the past KFF had exhibited divided loyalties between the respondents and the Vs but at no time had she ever expressed any negative view of the adoption plan.  The record of the meeting that FC and AH had with KFF to talk about the adoption plan was also put to FC – 6/8/42.  FC recalled that KFF had said that she wanted to use the surname “V-F”.  She had never said to FC that she wanted to retain solely the respondents’ surname.  FC had explained to KFF that adoption would mean that her placement with the Vs was secure and long term.  KFF was aware that if the Adoption Order was granted she may not see the respondents again at least during her childhood.  She agreed that KFF understood that one of the benefits of adoption would be that the Vs would be able to sign consent forms for various activities.  She accepted that she had not told KFF about orders short of adoption that might be available. 

[53]      Ms Cartwright cross-examined FK on a number of issues in relation to entries in the social work records that indicated that there had been in the past certain positives in relation to the respondents’ parenting.  FK did not accept that the respondents had provided “good enough parenting” before KFF was accommodated.  She disputed the suggestion that the second respondent had been put forward for a Mellow Parenting Programme although he had at one point said he would attend a fathers group.  On the issue of contact after the girls went to live in Norfolk, FK accepted that her observations of contact were of a largely negative experience for the girls and that contrasted to some extent with what the social workers in Norfolk had recorded.  While the respondents had come late to contact and failed to attend once or twice they had taken up the majority of contact periods offered.  She agreed that information had come to the social work department, perhaps from the first respondent, that the second respondent had hurt his hand at the time of the proposed contact visit prior to the move south in June 2014.  The issue of identity also was raised with it being suggested that KFF has a strong identity as the respondents’ daughter, as does KCF to a lesser extent.  FK agreed and clearly regarded it as a positive thing that Mr and Mrs V have promoted the continued emotional connection with the birth family.  She accepted that KFF’s views on direct contact had been inconsistent during the period of her involvement although the most up to date position was that when the child refers to mum and dad she means Mr and Mrs V. 

[54]      Under re-examination FK confirmed that there had never been an observable sustained improvement in the respondents’ home conditions over the period she had been involved.  She knew that the second respondent had been offered a number of parenting courses and refused to engage with them.  A record of the direct contact session in June 2014 that had been planned but did not take place was put to the witness – 6/10/10.  In that record DY had noted that the second respondent had advised that he and the first respondent were unable to attend the contact as they were upset that the hearing had not returned the girls to their care.  The record did also state that the second respondent had injured himself on a metal fence while playing football. 

[55]      FK also confirmed that the telephone contact that took place after direct contact ceased had been difficult and of short duration.  KFF had always tried to please others and that included her birth parents.  But having experienced and enjoyed the level of care given to her by Mr and Mrs V she has expressed very clearly to FC that she wants to be adopted.  She has a sense of it being important to remain with the V family into adulthood.  She knows that there are choices she can make in relation to her birth parents once she is an adult but she feels fully integrated in the V’s family and describes EV as her brother.  She understands that adoption will result in her having a “forever family”. 

[56]      The final witness in the petitioners’ case was the first petitioner, Mr AV.  Mr V had sworn an affidavit No 29 of process and spoke to that in evidence.  He is 48 years old.  When asked about his youngest son EV, he described him as a typical teenage boy who plays the computer in his room.  He relishes being a big brother to the girls and their arrival in the home has improved his own situation.  On the issue of his wife’s health, Mr V confirmed that she suffers from Fibromyalgia which had been diagnosed when EV was quite young.  Despite that she had coped well at a time when EV had exhibited challenging behaviour.  The arrival of the girls had given his wife a focus other than her own health and he felt that her situation had improved. 

[57]      Mr V always knew that his wife was adopted and he supported her travelling to Scotland when she wanted to make contact with her birth family.  After that contact was made he had accompanied his wife to the respondents’ home.  He had been concerned about the lack of cleanliness in the property.  KCF, who was a baby at the time, was in a moses basket that was not clean.  After the girls came to live with him and his wife in June 2014, KFF started school down in Norfolk immediately.  She had made friends and seemed happy.  She is academically bright and although she suffered a lack of confidence at first that had changed and she had been elected deputy head girl at one stage.  KCF was more challenging and has now been held back in her reception class for another year.  However Mr V felt that with support she had made significant progress.  She is less able to cope with extracurricular activities than her older sister.  However they hope she might attend Brownies or a similar group in due course.  KFF on the other hand is very involved in football and trains on a Thursday playing matches on a Sunday.  She is quite talented at the sport.  She has a number of other out of school activities.  Both girls have a circle of friends and are invited to parties.  They are very much involved in the local community and with the extended family, including Mr V’s parents to whom KCF is attached and calls “nanny and pops”.  The couple are now regarded by both girls as grandparents.  The two older sons of Mr and Mrs V’s marriage are both in regular contact.  Their oldest son is 25 years old and lives only three miles from his parents, often coming to their home and spending a Sunday with them.  Their middle son lives in Middlesbrough and enjoys good contact with the girls when he visits.  Mr V explained that he and his wife first considered adoption about six months after the girls came to live with them.  They were concerned about the problems arising from having to secure the respondents’ consent to school trips and the like and that he and his wife were unable to make any important decisions for the girls.  He felt that adoption would close off any ambiguity in the girls’ situation and take away the risk that the situation could change.  He and his wife would be the parents.  KFF is particularly excited about the prospect of adoption and knows that the Vs would become her mum and dad.  That said Mr V and his wife have encouraged KFF and KCF to always regard the respondents as their birth parents and to have a link with their birth family.  Mr V considers that KFF needs the security of knowing what her future will be.  She understands the nature of the relationship that Mr and Mrs V have with their adult sons, that they are still there to provide guidance to support to their grown up children and she understands that this is what would be available to her through adoption. 

[58]      After direct contact between the girls and the respondents had been terminated Mr V had observed that KFF’s confidence level had become more consistent.  There had been less change in KCF although the school pointed out that she was more compliant.  Mr V described the telephone contact with the respondents that took place as “strained and difficult”.  The second respondent would put all the focus on KFF and not KCF.  Both the respondents would ask the same questions of the girls repetitively but unable to explore any of the answers given.  There had been no noticeable effects of the termination of telephone contact and neither child had sought or requested it. 

[59]      Under cross-examination by Mr Aitken, Mr V accepted without hesitation he and his wife would still love and care for the girls, provide them with accommodation, meet their health and educational needs and ensure that they undertook the same hobbies and activities and links with extended family whether or not an Adoption Order was made.  However his position accorded with that of his wife, namely that it was adoption that would provide the family stability for the girls for the rest of their lives.  He and his wife have explained to KFF that they want her to be part of their family legally as well as physically so that the decisions about where she will stay cannot be changed.  They have explained to her that the respondents would still be her birth parents but no reference had been made to them becoming her “aunt and uncle”.  He accepted that if the Adoption Order was not granted they would have to try to explain to KFF what had occurred.  He thought she would be very disappointed but felt that if it was explained properly she would at least understand.  He agreed that the relationship with the respondents and in particular the first respondent’s birth family had broken down very quickly after the Vs had indicated an intention to look after the girls.  He thought that the first respondent’s family regarded this as a betrayal.  He confirmed that he and his wife had not taken any legal advice in England.  They had searched on the internet to find out what a “Special Guardianship Order” was.  They had ascertained that this was an order that could be granted by the English courts, but because the girls had been placed with them through the Scottish authorities they had decided to take legal advice in Scotland. 

[60]      Mr V confirmed that he and his wife had had a number of conversations with KFF about her name.  She had initially wanted to keep her current surname but now wanted to double-barrel it so that she would now be known as “V-F”.  Mr V thought this was entirely appropriate as the proposed adoption of these girls is very different to a stranger adoption situation.  There was no need to preserve anonymity.  His wife remains proud of her connection to the first respondent’s family and she wants the girls to continue to have that connection too.  Although he and his wife had not considered prior to Proof the technical legal matter of the respondents becoming the girls’ aunt and uncle as a matter of law, that did not change his views that adoption would be the right thing for the girls.  He had not been made aware that there were other ways in which he and his wife could secure parental responsibilities and rights short of adoption prior to proceedings being raised.  He had also not been aware that the Compulsory Supervision Order would come to an end.  The desirability of adoption as an unalterable order remained important in Mr V’s view because he knew that a Residence Order could be changed or challenged and understood that the second respondent in particular had only accepted the current situation in the short term. 

[61]      Mr V was very clear that he and his wife would support KFF if she looked to re‑establish contact with her birth parents at any stage.  He considered that the confusion in the girls’ lives was a current one and that the Adoption Order would resolve rather than exacerbate that.  He confirmed that he has not made a will and that although the social work department had raised inheritance issues in evidence he and his wife had not yet sought to address that.  He said he would have to consider doing so if the Adoption Order was granted although he did not see he and his wife as having a lot to pass on to their children.  Nonetheless he was clear that he regarded all five children as being on the same footing in that regard whether or not the adoption was granted. 

[62]      Under cross-examination by Ms Cartwright Mr V confirmed that he had no health problems.  On the condition of his son EV, he and his wife had known that their son was on the autistic spectrum but it had taken a long while for the diagnosis to be confirmed.  There were no particular additional burdens in caring for EV, who is currently sitting GCSE examinations and hoping to attend college after he completes school.  He confirmed that there was a current concern about the possibility of KCF having ADHD as her concentration was poor particularly if she was not interested in the task before her.  His understanding of whether a further referral to the paediatrician was awaited was slightly different from that of his wife.  He had understood that KCF did not meet the criteria for ADHD and was too young for that diagnosis.  He thought that a paediatric referral was not ongoing but the Education Psychologist was involved as part of an ongoing assessment at school and through social services.  He agreed that KCF’s health needs were part of an emerging picture about which there was no concrete medical evidence.  He doubted however, that her needs were likely to increase in complexity as she got older.  Mr V disagreed that it would be confusing for the girls if their parents became their aunt and uncle legally.  Mrs V personally had a more negative experience of adoption, but the situation being offered to KCF and KFF was very different.  He agreed that both girls identify themselves as Scottish and as part of the “F” family.  Both girls had “coped” with direct contact, he could put it no higher than that.  KFF would sometimes speak positively about her father in the past but then would be subdued after she saw him at contact.  KFF had not told Mr V that she would like face to face contact with her birth parents and he agreed it was possible that she held views on this that she had not disclosed to him and his wife.  He agreed that if KFF had any concerns about direct contact it was up to her care givers to help her.  She had been discharged from contact with the school nurse although she would always have someone to speak to if she needed to.  Mr V did not accept that the granting of an Adoption Order would make it difficult for KFF to raise the issue of direct contact in the future.  He and his wife supported fully the instigation of indirect contact.  He was asked questions about church attendance.  He explained that KFF plays football on a Sunday morning and that the Salvation Army does not practice Baptism although his understanding of the Pentecostal church which the respondents say they are members of practice full immersion and then only for adults.  He described himself as a Salvationist and confirmed that he and his wife would not look to any other church than the one they are currently members of.  If by any chance KFF expressed a view that she wanted to attend a Pentecostal church he and his wife would support that. 

[63]      Under re-examination Mr V confirmed that his understanding was that the children had not been baptised when they were with the respondents.  As far as extended family relationships were concerned, he reiterated that there would be no confusion for the children because they would know that Mr and Mrs V were their mum and dad but that the respondents were their birth parents.  As an adopted person herself, Mrs V has always regarded her adoptive parents as her legal parents.  In relation to alternative orders that could be sought, Mr V expressed the view that it would add confusion to the situation if orders such as Residence Orders and/or a Special Guardianship Order but with the respondents sharing the parental responsibilities and rights with the Vs were granted.  His concern would be that in such a situation the respondents would try to countermand their decisions and argue about who had the casting vote.  He felt that one source of decision making was important.  He felt that KFF would be very concerned if he required to try to explain to her that the result of these proceedings was that only an order that was subject to future change had been made. 

 

The Second Respondent’s Evidence
[64]      The second respondent, IDF, had sworn an affidavit No 30 of process which he adopted as true and accurate in his evidence with two minor exceptions.  First in paragraph 2 he corrected a passage so that it now reads “I received no information about the girls from the Vs”.  Also, in paragraph 9 there was a reference to contact having taken place once a week in Norfolk when in fact it had been once a month and five or six sessions had been supervised by the local social work department there.  The second respondent confirmed that telephone contact had ceased in February 2016 when he and his wife were told by the social work department that it had not been of benefit to the children.  He now accepted that the previous quality of telephone contact could have been better, but considered that he had not been given enough information about what the girls were doing so that he knew what things to talk to them about.  Following the Children’s Hearing on 19 January 2017 letterbox contact had been instigated.  The respondents now send letters and photographs through the social work department or directly to the Vs.  He suggested that thank you letters said to have been written by the girls had not been passed on by the social work department. 

[65]      On the issue of Sunday School, the second respondent confirmed that KFF had attended Sunday School for three years and that he and his wife had planned that she would be baptised which, in the Pentecostal church, would not take place before the age of five.  In relation to past engagement with social work services IDF denied that he had been offered a place on a Mellow Parenting group for fathers and had refused to attend. 

[66]      Paragraph 6 of his affidavit was put to the second respondent in which he states that he accepts the girls living with Mr and Mrs V because nothing else was possible “just now”.  His position was that he understands that the care the girls are being given by Mr and Mrs V is “really good” and he is pleased to hear that they are doing so well.  Initially he seemed to accept that both girls were settled in their current setting.  He and his wife had appealed the termination of face to face contact because they felt that the girls had enjoyed seeing them and that there was a bond between them and the girls.  He contrasted the feedback received when the social work department in Norfolk were supervising contact from that of the social work department in Scotland.  The second respondent was clear that he opposed the Adoption Order sought.  He said he did not know why Mr and Mrs V would want to adopt his children and commented that they could just seek a Residence Order.  A letter addressed to both girls sent to them care of the Vs and dated 31 January 2017 (No 7/1) was put to the second respondent.  He confirmed that he had written it but his wife had sent it.  The tenor of the letter was to the effect that the respondents love and miss the girls.  He said that he wanted to write to them so that they would know after the court proceedings how their mum and dad were feeling. 

[67]      Under cross-examination by Mr Inglis the second respondent accepted that KCF had sustained a number of injuries as a young baby all as outlined in Nos 6/25/4 and 6/37/2 of process.  He said that he did not know how these had been caused and could offer no explanation for KCF having been injured when in the care of her parents.  While his wife had admitted to the social work department that she had picked the scabs on KCF’s head, the second respondent’s position was that he had not seen her do that.  He remarked that his wife would not talk to him about the injuries to KCF but denied that he had tried to blame other people when things had gone wrong with the children.  He denied also that he had failed to protect KCF from being injured and from those injuries being made worse, claiming that he could not be responsible if he was not in the house at the time.  He accepted that he should have been concerned about the injuries to KCF and that he had not been at the time.  He denied that he and his wife had kept KCF in her buggy most of the time.  Various passages from the social work records were put to him – eg 6/12/369, 6/12/352, 6/12/342 and 6/12/363 on that topic and on the suggestion that KCF had only one serviceable toy.  The second respondent denied that the social work records observing KCF being strapped into her buggy were true and accurate.  He claimed that there were toys belonging to KFF that would have been accessible to KCF.  He accepted that on one occasion KFF had sustained an injury in the region of her eye and said that he had been opening the door of a room when KFF was behind it and by accident she was hit in the face with the door knob.  It was put to him that he had previously told the social work that KFF had been jumping on the bed and fell against the door knob, he denied that, stating that in a separate incident involving her jumping on the bed she had hurt her chin.  He accepted, however, that KFF’s dental hygiene had been very poor and that she had required to have six teeth extracted in November 2012, for which he and his wife had to take responsibility.  He accepted also that KFF had attended three different schools by the time she was attending the third year of primary school as a result of he and his wife moving houses.  He denied shouting at KFF “unless she did something wrong” or that she was frightened by his shouting.  The second respondent denied also that the home he had shared with the first respondent was dirty when the girls were young.  Again various passages were put to him where the social work department had observed the home being dirty, but he said that these entries were untrue.  It was put to him that his wife’s cousin’s Staffordshire dog had urinated on the sofa and floor of the house in the presence of the social work department, he said that the dog had only behaved that way in the premises on one occasion.  He denied that he had blamed the state of the children’s bedroom on KFF in the social work department’s presence and said in terms “the house was never dirty”.  He denied the accuracy in each and every entry from the social work department records that was put to him on that matter, claiming that the house was always clean.  He accepted that he and his wife were smoking in the property and that the air might have been heavy as a result but said that FK had chosen to buy more cleaning materials for the property when he and his wife already had some and he had undertaken all of the cleaning. 

[68]      The second respondent acknowledged that he had a conviction for domestic violence for which he had received a Community Payback Order, that he had also subsequently assaulted his wife and that there had been frequent referrals to the police in 2011.  The circumstances of four incidents in 2011, on 30 September, 19 November, 24 November and 3 December as narrated in records were put to the second respondent.  The first of these, 6/15/1, recorded that the first respondent had called the police because the second respondent was banging on the front door at 11.00pm.  The second respondent agreed that he had assaulted his wife by pushing her out on the road.  Despite the police record narrating that the children were at home, the second respondent denied that.  The circumstances of 19 November 2011 – (6/16/1) were that the first respondent had reported the second respondent banging on the door of the house at 9.30pm to allow entry.  The second respondent accepted that the first respondent refused him entry and that the children were in the house.  On 24 November 2011 – (6/17/1) the couple had been arguing because, according to the second respondent, the first respondent suspected that he was seeing another woman.  On 3 December 2011 – (6/18/1) the report was that the second respondent had pulled the first respondent’s hair and pushed her such that she hit the left side of the washing machine in the house.  When the record was put to him the second respondent claimed that this was part of the previous incident on 24 November and he denied having physically assaulted the first respondent.  A subsequent record from 30 December 2013 – 6/12/160 was also put to the second respondent concerning an incident where the first respondent claimed that he had pushed her backwards and hit her on the arm several times.  The second respondent claimed that the whole content of that note was untrue. 

[69]      In relation to WF, the second respondent said that WF’s conviction was for sexual intercourse with a girl under 16 years old not under 13 years old.  He claimed not to have known about the conviction before WF moved into the house, notwithstanding that WF is his brother.  He said that he did not know about the conviction until the social worker DY came to the house to take KFF from school because, as it was put, there was a “known paedophile” in the home.  The second respondent said that WF had been in the loft helping him with something and that it was not a question of him having hidden WF there.  When a record of the first respondent alleging that WF had sexually assaulted her – (6/10/12) was put to him, the second respondent said that he had not been in the property because he was undertaking his Community Payback Sentence at the time.  He said that if he had known about any such behaviour he would have reported it to the police.  When it was put to him that KFF’s behaviour had changed after WF was in the family home and that she had sought more privacy after showering, the second respondent commented that she was at that time getting to an age where she wanted privacy.  He accepted that he and WF had picked up the first respondent part of a “family carry-on” but denied having put her in the bath screaming and shouting.  When shown a report in which KFF said that she remembered WF lifting her up and tickling her even when she asked him to stop, the second respondent could not recall KFF being in the house with WF.  In relation to another relative of the second respondent, D, accepted that he had been present in the respondents’ home since KFF was born.  He had been shown a note – 6/7/44 which it is recorded that KFF had told an advocacy worker that D punched her in the stomach and that he punches her “downstairs”.  The second respondent said he knew nothing of that until he saw the social work records in these proceedings. 

[70]      The second respondent denied being unhappy with KFF’s advocacy worker continuing to meet with her, claiming that he did not want the worker to take KFF out of school but said she could come to the house.  In connection with a recorded concern about where D was sleeping in the house as there was no spare room and the only available space was KFF’s double bed, the second respondent defended his refusal at that time to tell the social worker where D was sleeping because “he had his own house so it was none of her business.  He wasn’t sleeping in my house.”  The second respondent then acknowledged that D did not have his own house at that time but was staying at his grandmother or mother’s house.  He claimed that he knew nothing about the concerns surrounding D until they were mentioned at a Children’s Hearing. 

[71]      Paragraph 6 of his affidavit was again put to the second respondent in cross-examination.  He agreed that he felt nothing other than the children living with Mr and Mrs V “just now” was possible because of the problems in the past.  He said that he and his wife had looked after their children properly.  He said there was not any perfect parent “out there” but that everyone learns from mistakes.  He then said “I didn’t need any help at all.”  He did not feel he needed to improve his parenting skills although he did say that he had asked DY for a place on a parenting group even though he thought there was no need for it.  On the issue of the planned meeting as part of the girls’ departure for Norfolk on 27 June 2014 the second respondent said that the meeting was not prearranged and he had not refused to attend.  He disputed the terms of the social work records on this.  He disputed that AH would have been unable to contact him saying that his phone was always on.  He disputed also that he and the first respondent had refused or at least delayed unreasonably to provide consent for school trips and holidays for the girls and that KCF missed a school trip as a result.  He was shown a record from November 2016 (6/12/6) in which the first respondent had advised the social worker KE that the respondents were moving because their current landlord had evicted them, but he denied the accuracy of that and said that they had left because the property was damp.  The second respondent denied also having failed to attend for the last telephone contact, stating that he and his wife had not been told about it.  He accepted that KFF’s wishes should be respected if she did not wish telephone contact.  He accepted in general that KFF’s views should be respected although thought she was a bit too young to give a view on adoption. 

[72]      Towards the end of his cross-examination the second respondent made the following statement.  He said “we both have said that we are happy for the kids to be there under kinship but not adoption.  Me and (AJF) want to see the children.  They mean everything to us – we love them so much.”  He was then asked whether he hoped that the girls could come and live with him and his wife in the future, he said “yes.  It’s up to the judge but they should be at home with their real mum and dad.”  At that point in his evidence the second respondent became tearful. 

[73]      Under re-examination the second respondent reiterated that if he had known that his wife was picking the scabs off KCF at the time he would have stopped it or would have reported it himself.  He accepted that he perhaps should have known that his wife was doing that.  Some records were put to the second respondent in re-examination showing that there had been times where KCF had made progress with walking independently and meeting developmental milestones and that there had been references to the home conditions having improved.  The second respondent acknowledged that he had accepted the grounds for referral in respect of the children.  He acknowledged his own offending history as set out in his affidavit at paragraph 7.  There had been no recent incident referrals since those.  When asked what his position was and where the girls should live now he stated,

“I know they are happy living with the Vs but I think they should come home.  It’s down to a judge to make that decision.”

 

If the girls were unable to come home he stated that he wanted both telephone contact and to see them once per month although he would accept the court decision if direct contact was said not to be in their best interests. 

 

The Applicable Law

[74]      These are direct petitions for adoption and the statutory provisions that govern their determination are found in the Adoption and Children (Scotland) Act 2007.  There was effectively no dispute between counsel as to the applicable law.  The sharp issue for determination is how the law applies to the facts of this case.  There are three aspects of the applicable law relevant to the dispute in these proceedings.  First, section 31 of the 2007 Act sets out five conditions and specifies that an Adoption Order may not be made unless one of those five conditions is met.  Secondly, there is a list of considerations in section 14 of the Act which require to be addressed before deciding whether an Adoption Order should be made.  Thirdly, even if all other aspects of the first two tests are satisfied, I must go on to consider whether it is better for KFF and KCF that the orders in respect of them be made than not.  I will summarise the agreed legal position in relation to each of these three areas in turn. 

[75]      Section 31(2) of the 2007 Act provides that one of the conditions without satisfaction of which an Adoption Order may not be made is that either the relevant parent or guardian concerned consents to the making of the Order or that the parent or guardian’s consent to the making of the Adoption Order should be dispensed with on one of the grounds mentioned in subsection 3.  The grounds listed in subsection 3 include: 

            (c)        That subsection (4) or (5) applies;  and

(d)       That, when either of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with. 

Section 31(4) applies if the parent or guardian of the child in question: 

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

 

(b)        Is, in the opinion of the court, unable satisfactorily to –

 

(i)         discharge those responsibilities, or

(ii)        exercise those rights, and

 

(c)        Is likely to continue to be able to do so.”

 

The other grounds with dispensation with consent arguably relevant to this case is that where section 31(4), commonly referred to as the “incapacity ground”, is not made out, then section 31(4) as a separate ground that where neither that subsection or subsection (5) applies but that the welfare of the child otherwise requires the consent to be dispensed with then the ground for dispensation is made out.  It is not controversial that the structure of section 31 requires section 31(4) to be addressed first.  Possible dispensation with consent on the basis that the welfare of the child requires it only becomes relevant if section 31(4) does not apply. 

[76]      The approach to the “incapacity” ground of section 31(4) is now well established.  In the case of S, Petitioner [2014] CSIH 42 at paragraph 29 the Inner House confirmed that establishing whether or not this test is satisfied engages the court essentially in a fact finding exercise.  The court must conclude on the basis of the facts found whether the relevant parent or guardian is unable satisfactorily to discharge the rights and responsibilities referred to and whether or not they are likely to continue be so unable.  Accordingly, Article 8 ECHR is not engaged when the court is considering whether to dispense with consent on the incapacity ground.  However, if the incapacity ground is not established in relation to both parents, consideration requires to be given to section 31(3)(d).  That ground has been authoritatively considered in S v L [2012] UKSC 30.  In that case the UK Supreme Court confirmed that the statutory provision that allows the dispensation of parental consent to adoption only on welfare grounds is compatible with Article 8 ECHR.  Importantly, in an analysis of the various provisions of the legislation against the background of the European jurisprudence Lord Reed emphasised that “legislation authorising the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity” and that the court requires to be satisfied that such interference with the rights of the parent is proportionate – “… in other words, that nothing less than adoption will suffice.”  The necessity test has a bearing on the second and third statutory provisions relevant in this case. 

[77]      The second part of the legislation applicable to the decisions that must be made in this case is the list contained in section 14 of the 2007 Act.  As already indicated this was not a case in which an adoption agency came to any decision relating to the adoption of these children and so it is the court that is addressing the various considerations listed.  These are: 

• The court must have regard to all the circumstances of the case.
• The court must regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration.
• The court must, so far as is reasonably practicable, have regard in particular –

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

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

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

(d)       the likely effect on the child, throughout the child’s life, of the making of an Adoption Order. 

[78]      In a case where consent is dispensed with under section 31(4), (the incapacity ground), neither the child’s welfare nor Article 8 ECHR considerations will have been taken into account at that first stage as only a fact finding exercise will have taken place.  In such cases it is necessary to undertake a second stage of the process to consider whether adoption should be granted and the test of necessity and proportionality must be met at this second stage.  Where consent is dispensed with only under section 31(3)(d) those considerations are an integral part of the process. 

[79]      While section 14(7) requires an adoption agency to refrain from making arrangements for adoption if there is any better practical alternative for the child, it is clear that the court must also consider those alternatives.  This is the third aspect of the legislation relevant to my decision in this case.  Section 28(2) of the 2007 Act provides that: 

“The court must not make an Adoption Order unless it considers it would be better for the child that the Order be made than not.”

 

That provision, read together with the requirement to have regard to the likely effect on the child, throughout the child’s life, of the making of an Adoption Order (section 14(4)(d)), require the court to consider the various alternatives to adoption that might be available in respect of the child or children are the subject of the application and only if there is no reasonable alternative available can the Order be granted.  This is the effect of the test of necessity outlined in S v L above.  In Fife Council v M 2016 SC 169, the Inner House confirmed the requirement that the court consider the available options for the child and approved the view of McFarlane LJ in re G (A Child) [2013] EWCA Civ 965 (at para 50) that the judicial task is to undertake a “global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare. 

[80]      In this context, parties were agreed that in principle it would be competent, if the court was not satisfied that only adoption would safeguard and promote the interests of the children KFF and KCF throughout their life, some lesser order could be made.  At the time of the submissions an example was available from the Sheriff Court in the case of X v Y 2015 Fam LR 41 in which, on the facts found by the sheriff, adoption was not required and orders conferring parental responsibilities and rights and a Residence Order in favour of a step mother were made with the natural mother also then retaining parental responsibilities and rights.  In the case of LO v N & C [2017] CSIH 14 the Inner House has now confirmed that section 11(1) of the Children (Scotland) Act 1995 is framed in terms sufficiently broad to give the court power in adoption proceedings to make a Residence Order as an alternative – see paragraph 21.  I agree with the submission made by counsel for the first respondent in this case that the competence to make such an order were it appropriate in this case would not be subject to any jurisdictional limitation as flows naturally from the jurisdiction already taken in respect of the move for reaching order sought. 

[81]      The final provision relevant to the issues in this case is that contained in section 28(3) of the 2007 Act which provides that an Adoption Order may contain such terms and conditions as the court thinks fit.  It was agreed that, if adoption is ordered in this case, a detailed regime of indirect contact between the children and the respondents should be set out.  The second respondent also sought telephone contact, something which would be competent in terms of the subsection. 

 

Application of the Law to the Facts

Credibility and Reliability
[82]      I have no hesitation in accepting as credible and reliable all of the witnesses led in the petitioners’ case.  The medical witnesses were not cross-examined and gave clear accounts of the early period in KCF’s life, the injuries she sustained and the first respondent’s behaviour.  The social work department witnesses were cross-examined at length.  Each of them made appropriate concessions in relation to matters not contained in their affidavits or where there were isolated entries in the social work records that highlighted certain improvements in the respondents’ relationship with or care of the children.  However, I reject the contention made on behalf of the second respondent that adverse credibility findings should be made in respect of DY, BC, KE, FK and AH.  It seemed to me that all of those witnesses were honest and doing their best to assist the court on the basis of their recollection, assisted where necessary by documentary material.  I do not consider that their evidence lacked balance.  It is hardly surprising that the social workers involved in later years could not recollect any detail from the files of the previous local authority involved.  There was undoubtedly some confusion on the part of some of the social work witnesses in relation to the specific legal alternatives to adoption, but deciding between those alternatives was not a matter for them but is for the court.  Any lack of understanding in relation to specific statutory provisions does not affect their reliability as witnesses on the primary matters about which they were called to give evidence, namely their observations of the circumstances in the respondents’ home and the events that led to the children being accommodated in the long term.  Mr and Mrs V were impressive witnesses.  In addition to the genuine manner in which each of them expressed a lifelong commitment to the two girls, each seemed to answer all of the questions put to them in cross‑examination fully, honestly and courteously.  Neither sought to answer questions in a way that would advance their case rather than give a completely truthful answer.  Both accepted without hesitation that all of the love and support they provide currently to the girls would continue regardless of whether an Adoption Order was made.  I find both of them to be credible and reliable and accept their evidence in its entirety. 

[83]      As far as the second respondent is concerned, I find that I cannot accept all of his evidence as credible and reliable.  In particular, he claimed that certain passages in the social work department records recording observations of his home being dirty and unkempt and in relation to KCF being confined in her buggy in the home were untrue.  No explanation was offered as to why there would be numerous records spoken to by social work department witnesses who had actually observed the home if, as he claimed, the house was always clean.  I appreciate that it is a sensitive and difficult matter to be confronted with the conditions in one’s own home to face up to them being as unsatisfactory as the social work witnesses found.  However, where the second respondent’s evidence differed in matters of this sort I reject his evidence and accept that of the social work witnesses.  That said, the second respondent very fairly acknowledged most of the circumstances of the incidents of domestic violence between him and his wife.  He did make one or two appropriate concessions in relation to past short comings, for example in relation to his failure to protect KCF from injury.  He did continue to dispute that there were any significant issues with his parenting of the children, but that may be a feature of his inability to acknowledge problems and to change than a concern about credibility.  There were parts some of his evidence in which I consider the respondent was wholly genuine, in particular where he expressed the view that he thought his children “… should be at home with their real mum and dad”.  I accept that is his firmly held belief and that it is unwavering, something to which I will return in relation to my assessment of the available options for these children. 

 

Evidence Relating to the Incapacity Ground of Section 31(4)
[84]      I consider it appropriate, as submitted by counsel for the petitioners, to address at least to some extent the evidence in relation to each child separately, then to address some of the evidence relating to both children before reaching a conclusion on whether the incapacity ground has been made out.  So far as KCF is concerned I accept without hesitation the unchallenged evidence that she sustained a number of unexplained physical injuries between January 2012 and March 2013, some of which were caused by the first respondent persistently picking peeling scabs on earlier wounds.  The injuries are narrated in the reports of Dr KR, Nos 6/25 and 6/37 of process to which she spoke in evidence.  I will not narrate the findings at any length here but, as summarised in my narration of the evidence, these included six unexplained injuries on the child when she was only five months old, of most concern being that the right “pinky nail” showed a healing injury and the nail was missing, and the abrasions to the head at that time.  On 20 June 2012 KCF presented with two raw wounds on her head between September 2012 and 6 March 2013 she developed further wounds to her head of a similar nature to the earlier ones.  She required a period in foster care to allow her wounds to heal in March 2013.  Following her return to the care of the respondents she presented with a fresh wound on her head on 27 March 2013.  The detail of the injuries suffered by KCF are narrated in the grounds of referral which were established on 26 July 2013.  I accept also the unchallenged evidence that the first respondent admitted picking the healing wounds on KCF’s head because doing so comforted her, notwithstanding that she knew that picking KCF’s head caused the child pain.  I accept also the evidence, unchallenged and accepted by the second respondent, that he was unable to prevent KCF from sustaining injuries whether as a result of the first respondent picking KCF’s head or otherwise.  There has never been an explanation offered by either of the respondents for the initial cause of the wounds to KCF’s head, but those injuries were sustained whilst she was in their sole care.  I accept also the unchallenged evidence of Dr MD the psychiatrist who expressed the view that the first respondent understood that what she had done to KCF was abusive but did not display either concern or remorse, nor was there any element of compulsion about her behaviour.  The findings of physical abuse of this very young child are sufficient in themselves for me to conclude that at least at that time the respondents were unable satisfactorily to discharge parental responsibilities and rights in relation to her. 

[85]      During 2012 and the first part of 2013 social workers observed poor conditions within the respondents’ home in terms of a lack of hygiene.  Those conditions were observed directly by DC, now a social work team leader, whose evidence that she had rarely seen KCF outside her buggy when visiting the home I accept.  The contemporaneous case records in relation to very poor home conditions and the failure to encourage KCF’s development support the evidence given by BC and also by FK who attempted to teach the respondents how to maintain their home in a way that would be conducive to their children’s physical welfare.  BC formed the impression that the practice of keeping KCF in her buggy (or her high chair outwith meal times) resulted in a delay in KCF’s development which was remedied only when she began attending nursery.  FK found that KCF had only one serviceable toy which was remedied only when FK herself provided toys to the family.  In submissions, counsel for the second respondent suggested that the evidence about the home conditions and possible delay in KCF’s development were concerns that could be addressed with appropriate support, as were the issues with domestic violence and lack of meaningful engagement with support services on which I will comment shortly.  It was contended both that the evidence on these issues was not sufficient to find the incapacity ground established and that in any event the statement of facts relating to KCF’s grounds of referral did not include references to condition of the home, lack of parental engagement with support and domestic violence.  What that submission ignores is that the observations of unhygienic home conditions and a failure to assist KCF in meeting developmental milestones were made against a background of this young child already having sustained unexplained injuries, exacerbated by her mother’s behaviour in reopening head wounds.  The established grounds of referral are only part of the body of available evidence on which I must decide whether the incapacity ground has been established.  I accept that the unhygienic home conditions and failure to encourage a young child to eat, bathe and to walk are the sorts of issues that can often be addressed with appropriate support.  However, there is ample evidence of the second respondent being resistant to support because he could not or would not acknowledge that there were any deficiencies in his parenting.  I accept the evidence that the first respondent, whose abilities are limited, was, even if willing, unable to sustain any meaningful change in relation to these matters.  So far as domestic violence is concerned, the evidence about that was broadly admitted by the second respondent in evidence.  I find that the parties’ relationship was characterised by several incidents of volatility, allegations of, and on certain occasions, actual violence. 

[86]      So far as KFF is concerned, the agreed evidence is the grounds of referral were established in relation to her on 28 October 2013 on the basis that she had or was likely to have a close connection with a person who had committed a Schedule 1 offence.  The established facts were that WF, the second respondent’s brother, was a convicted sex offender, having had sexual intercourse with a girl under the age of 16 and that for approximately two weeks from September 2013 the respondents had permitted WF to reside within the family home and that KFF had significant contact with WF during that time.  In evidence in this case the second respondent claimed that he had not known of his brother’s criminal conviction, notwithstanding the unchallenged evidence in DY’s affidavit that both parents had been aware that WF had been convicted of “raping a child”.  There was no suggestion in evidence that the second respondent was estranged from his brother and he accepted that his brother had been in the house although said that he had been in the loft of the property because he was helping the respondent with work there.  I reject the second respondent’s evidence that he did not know of the nature of his brother’s criminal conviction at the time.  I accept the evidence also that the first respondent had alleged that WF had physically and sexually assaulted her.  The second respondent admitted that there had been what he called “family carry on” with him and his brother putting the first respondent in the bath denied knowing of any assault.  There was unchallenged evidence that KFF’s behaviour changed during WF’s stay and that she had become progressively reserved about her body.  The second respondent’s explanation for that she was attaining an age where she wanted privacy.  However she was only seven years old at the time and I did not find this to be a convincing explanation.  I cannot make any positive findings about what occurred as between WF and the first respondent or WF and the child KFF during the period WF was in the respondents’ home.  I do find, however, that the respondents failed in their duty to protect KFF and keep her safe by introducing into the household someone they knew to have been convicted of a sexual offence against a girl under 16 and who could, therefore, pose a risk to a female child within the home. 

[87]      I accept also the evidence of the continued presence in the respondents’ household of another relative of the second respondent, D, who according to KFF, physically assaulted her by punching her in the stomach.  The second respondent accepted in evidence that he had become aware of the allegation at a subsequent Children’s Hearing.  The allegation had been made to KFF’s advocacy worker, to whom the second respondent subsequently objected attending the child’s home, although he claimed in evidence that she was free to see KFF at school.  I can make no finding about where D was sleeping when he was in the respondents’ home as the social work department were unable to elicit that information from the respondents.  What I can and do find is that the respondents failed to provide a safe sanctuary for KFF at home and exposed her to adult males that she was uncomfortable with, including D. 

[88]      I accept also the unchallenged evidence that in March 2012 KFF sustained a bruised right eye because the second respondent opened a door to her room in haste causing the handle to make contact with her face.  The circumstances of that incident were accepted in the second respondent’s evidence.  However, I find that this was a careless act rather than any form of intentional assault against his daughter.  There was unchallenged evidence that in November 2013 KFF was referred to Yorkhill Children’s Hospital for the extraction of six teeth because of poor dental hygiene.  I find that the respondents failed to meet KFF’s physical needs satisfactorily.  In addition I find that her education was interrupted by frequent house moves and that the respondents failed to prioritise education and guidance as well as her physical health. 

[89]      In addressing the incapacity ground in relation to KCF, I have already made findings in relation to admitted domestic violence including the acknowledged criminal convictions of the second respondent for assaulting the first respondent (6/166 of process).  The volatile climate that pertained within the home affected both children as did the home conditions to which I have referred and the respondents’ failure either to acknowledge their deficiencies or to be able to sustain any improvement.  Insofar as there was a dispute between DY, the social worker who recalled that the second respondent had refused to attend a fathers group that was available to him and the second respondent’s denial of that, I accept DY’s evidence as illustrative of the second respondent’s repeated inability to accept that there were deficiencies in his parenting and that change was required. 

[90]      Another matter that has affected both children is that the respondents have not been reliable in making themselves available for the children.  In particular I find that they failed to attend the contact arranged to support the children when they were moving to Norfolk because they were unhappy about that decision and I reject the second respondent’s evidence that the meeting was not prearranged.  The respondents also failed to attend for telephone contact in February 2016 and that the social worker AH had been unable to contact them thereafter despite various attempts.  I accept also the evidence that the respondents have failed or at least delayed to respond to important requests for consent to the children’s activities and that KCF in particular has missed out on school trips as a result. 

[91]      I conclude that the acceptable evidence demonstrates that the respondents have been unable to parent these children satisfactorily while they were in their care.  The evidence of a continued lack of engagement with social services, thereafter, coupled with the occasions on which they have let the children down by failing to attend for contact, telephone or otherwise, and the second respondent’s continued denial of any deficiencies with his parenting, all support a conclusion that both respondents’ inability to satisfactorily discharge their parental rights and responsibilities it is likely to continue into the future.  The first respondent did not give evidence and so no current assessment of her can be made.  I was told that she was finding the proceedings very difficult and as indicated attended court only intermittently.  There was no evidence to support any suggestion that she can or would change in relation to her ability to parent the girls.  In fairness, the first respondent did not mount any active challenge to the incapacity ground, leaving it for the court to find whether it was established on the evidence.  The second respondent continues to refuse to accept that the evidence in this case is sufficient to conclude that he was and is unable to parent these girls satisfactorily and is likely to be unable to do so in future.  I have no hesitation, in finding that the petitioners have established the condition narrated in section 31(4) of the 2007 Act.  Accordingly, there is no need at this stage to consider the condition in section 31(3)(d) of the Act.  It is sufficient for the dispensation with parental consent that I have concluded that the condition in section 31(4) is satisfied. 

 

Evidence Relating to the Welfare Considerations in Section 14 of the 2007 Act
[92]      As I have found that there is sufficient evidence to dispense with parental consent on the “incapacity ground”, the next stage is to address the various welfare considerations contained in section 14 of the Act.  Each of these factors must be considered in light of the requirements of necessity and proportionality, bearing in mind the authoritative statements that adoption is an order of last resort.  On the first consideration, namely the requirement to have regard to all the circumstances of the case, I have already made various findings about the circumstances in which these two girls lived when in the care of their parents, the respondents.  The circumstances in which the children currently live I will address in looking at the other considerations in section 14.  At this stage, it is perhaps sufficient to emphasise that this case is relatively unusual in that the children have been placed not with strangers but with relatives and that not initially as part of an adoption process.  The petitioners do not seek a “closed adoption” of the type that was once the most common form, where little or no information was given to the child or children about their birth family and original circumstances.  Here, Mrs V is a blood relative of the children, being the half sister of the first respondent.  She and her husband came into the children’s lives in that context, because she wanted to make contact with her birth family.  Having been adopted herself, she is acutely aware of the importance of birth family links.  I accept her evidence and that of her husband Mr V, that far from hiding the identity and circumstances of the girls’ birth parents, they have ensured to date a continued presence in the girls’ lives of the respondents through photographs around the house and open discussions whenever appropriate.  There was no evidence or indeed suggestion that Mr and Mrs V would speak critically or inappropriately about the respondents to the children and both emphasised a desire that the children continued to be reminded of their life story to date.  Mrs V is particularly well able to understand the needs of the children in that respect. 

[93]      The next consideration is that I must regard the need to safeguard and promote the welfare of the children who are the subject of these applications throughout their life as the paramount consideration.  This requirement distinguishes adoption from orders that can be made under section 11 of the Children (Scotland) Act 1995 or indeed Permanence Orders without authority to adopt made under the 2007 Act.  Adoption has consequences throughout the life of the child or children in respect of whom an order is made.  It imposes rights and obligations which might otherwise cease on the child attaining maturity.  The finding I have already made that the respondents are likely to be able to parent the children satisfactorily in future means that they are not best placed to promote the welfare of KCF and KFF throughout their lives.  The question is whether their welfare can only be properly safeguarded and promoted by the petitioners becoming the legal parents of the children or whether some lesser draconian outcome would satisfy this criterion.  I turn then to consider the specifically listed welfare considerations and the evidence relating to them against this overarching need to safeguard and promote the welfare of the children throughout their lives. 

[94]      There was no challenge to the contention of the petitioners’ counsel that the value of a stable family unit in any child’s development is immense.  Prior to their settling with Mr and Mrs V, neither of these children had benefited from the advantages of a stable family unit.  As I have already found, their upbringing was characterised by risk and actual harm to their physical and emotional development.  The respondents’ home was far from being a safe haven for the children;  it was an unsafe environment.  Residence with Mr and Mrs V has provided KFF and KCF with a stable and enormously beneficial family unit for the first time in their lives.  The unchallenged evidence was to the effect that the physical and emotional needs of these children are being serviced to a very high level by their current carers.  KCF may continue to present some challenges in future and has not found it easy to learn in an educational setting.  I am confident that Mr and Mrs V will pursue any necessary support and/or treatment required to enable her to fulfil the potential that she has. I reject the contention that the absence of certainty in relation to KCF’s developmental health raises a question mark about whether the order sought will safeguard and promote her welfare. Mr and Mrs V have faced, calmly and impressively the challenges that their own son’s condition has brought. I am confident that they are best placed to care for KCF whether or not her needs turn out to be a little more complex than currently thought and that they will not waver in their lifelong commitment to her and her sister.  KFF is an academically able child who is now being allowed to thrive in a nurturing environment.  However, the evidence illustrated that both girls, but KFF in particular, are aware of the possible lack of permanence in their current situation.  KFF’s expressed views are evidence of that and I will deal with them separately.  The clear evidence of the second respondent to this court was, as indicated, that the children should be back with him and his wife “where they belong”.  That  evidence supports a conclusion that the stable placement in which the children currently live is not immune from future challenge.  Counsel for both respondents sought to rely on the evidence of the girls being well settled and thriving in their kinship placement as supporting a contention that there would be greater stability to them in the family unit remaining as it is, legally, as opposed to their current kinship carers, one of whom is their biological aunt, becoming their legal parents with their biological parental relationship being severed.  Had there been complete acceptance by the respondents of the girls’ placement with Mr and Mrs V in the long term there would have been more force in that argument.  Standing the evidence of the second respondent and the lack of evidence from the first respondent supporting the placement in the long term, however, I consider that there is a real risk of the stability of the girls’ placement being threatened if permanent orders securing their future with Mr and Mrs V are not made.  While the respondents have not sought to actively disrupt the placement to date, any future challenge to it, even assuming it was made through legitimate channels, would be destabilising for the children.  So far as contact is concerned, even if one or both of the children sought to revisit the issue of direct contact, such a development would be less likely to risk the stability of their current placement if carried out against a background of unchallengeable orders in relation to their residence. 

[95]      I now turn to consider the views of the children regarding the decision to be made.  Account must be taken of each child’s age and maturity.  KCF is too young to understand fully the nature of the decision which I require to make in this case and it is not suggested that she was mature enough for her view to be taken into account.  KFF on the other hand was described by various witnesses as a bright, articulate child who continued to perform extremely well at school.  What I take from the various pieces of evidence in relation to KFF’s views is that while she has consistently and strongly expressed a desire to be adopted by Mr and Mrs V, her views on ongoing contact with her birth family have been more ambivalent.  I will deal with these separately.  First in relation to KFF’s views on adoption, she spoke freely and in clear terms to the curator ad litem and reporting officer.  Her views are also contained in the local authority section 19 report and there was evidence of an earlier meeting she had had with the social worker AH when adoption was discussed.  KFF has some understanding of consequences of an Adoption Order.  He own description of it was that it would make Mr and Mrs V her “forever family”.  Her desire in this regard was not just to the curator ad litem but also to the social workers BC, AH and KE and the support worker FK.  It was suggested to the social work witnesses, in particular BC, that this was not an expression likely to be made by a child of KFF’s age but was something social workers tended to articulate.  BC explained that in fact the expression had first been used by children adoption situations and that social work departments had taken it on as a child friendly way of describing what adoption is.  It was not, however suggested to BC that KFF had used this expression only because it was one suggested to her.  As a bright child, she has a clear understanding that she has moved from one family to another and that decisions are to be taken about her future, I accept the evidence of BC and others that KFF’s use of this term is an expression by her of wanting to be part of Mr and Mrs V’s family in all respects and for all time.  KFF’s views are not determinative of the matter.  While she is highly intelligent and articulate, she is still only ten years old.  There was evidence that, when explaining to KFF some of the consequences of adoption, AH may have given her the impression that this was the route by which consent to school trips and the like could be given by Mr and Mrs V.  As a matter of law, that is not accurate and there are other routes by which Mr and Mrs V could be given the authority to make decisions which currently require consent from the respondents and that could be achieved short of adoption as will be discussed in the alternatives to adoption section.  However, the strength of KFF’s view that she wishes to be adopted is something to which I do attach weight in my overall determination in this case.  So far as the evidence that KFF wants to have a party to celebrate the Adoption Order, if it is granted, the counsel for the respondents were critical of that.  I do not think Mr and Mrs V have made any assumptions about the outcome of this case or conveyed anything about the chances of the Order being made to KFF.  What I take from the evidence of KFF’s desire for an “adoption party” is that she views adoption as a positive thing that will bring her benefit and will allow her emotionally to feel permanently claimed by her current carers.  On the issue of contact, KFF’s views have not been as consistent as her views in relation to adoption.  She has from time to time indicated a desire to resume direct contact with her birth parents either now or at some future point.  That is hardly surprising.  KFF spent a longer period of her life with her parents than her younger sister.  She has a residual attachment to them, despite their having let her down in relation to contact prior to her departure for Norfolk and in relation to the quality of telephone contact.  Even where an Adoption Order is made, the issue of contact is a door which always remains slightly ajar.  Parents whose parental rights and responsibilities have been extinguished by the making of an Adoption Order can, with leave of the court, make a subsequent application for contact under the Children (Scotland) Act 1995, section 11(3)(a) (as inserted by section 107 of the 2007 Act).  I accept the evidence of Mr and Mrs V that KFF has not raised with them the issue of direct contact with the respondents since telephone contact ceased in February 2016.  I accept the evidence that she has been settled and happy since that time.  I accept also that should her occasionally stated desire to see her birth parents again before she is an adult turn into a consistent wish, Mr and Mrs V would act appropriately and facilitate such contact as they considered to be in her best interests.  At this stage, however, neither respondent actively seeks an order for direct face to face contact.  The second respondent wishes telephone contact to be re-instigated but the evidence of Mr and Mrs V was that such contact was unsettling for the girls and it was of poor quality.  I conclude that, while regard should be had both now and in the future to any clear and consistent desire on the part of KFF to maintain contact with her parents, that any such expression of desire to date has been inconsistent and does not amount to a strongly held view.  In any event, there is no dispute that, if an Adoption Order is granted, a link between both girls and their birth parents will be maintained through an agreed indirect contact regime.  To that extent at least, KFF’s stated wish to maintain a link with her birth family will be respected. 

[96]      I must also have regard to the children’s religious persuasion, racial origin and cultural and linguistic background.  So far as the first of these is concerned, Mr and Mrs V are Christians and from a Salvation Army background.  It is said that the respondents, particularly the second respondent, also hold Christian beliefs but are of the Pentecostal church.  There was evidence about the different age and stage at which children are baptised in the Pentecostal church and the lack of available baptism for children in the petitioner’s church.  I do not regard this as an important matter, standing the lack of any plan to baptise KFF before she was placed with Mr and Mrs V at the age of seven.  There was no evidence that the respondents’ stated desire for the children to have a certain amount of religious instruction will not be served by the petitioners.  So far as racial origin is concerned both the petitioners and the respondents are white Caucasian.  While Mr V is English, Mrs V is very obviously from a Scottish background.  KFF is also proudly Scottish and there are permanent reminders of the children’s Scottish roots within the petitioners’ home.  There are no other relevant cultural or linguistic issues. 

[97]      I turn now to consider the likely effect on KCF and KFF, throughout their lives, of the making of an Adoption Order.  The effect on the legal position of each child is clear, namely that they would become part of the family of Mr and Mrs V for the rest of their lives.  They would have equal inheritance rights with Mr and Mrs V’s own three children, although that was not a matter on which any particular reliance was placed by the petitioners, who already regard KCF and KFF as having parity with their three sons.  My assessment is that the likely effect on both children on the making of an Adoption Order would be to provide them with certain knowledge that they have been claimed, legally as well as emotionally, by the petitioners.  While the petitioners’ emotional commitment to the children would not be diminished in any way were an Adoption Order to be refused, the evidence supports a conclusion that the making of such an order would have a positive impact on both KCF and KFF.  The only way in which the children could be assured of having a set of parents with the ability to support and guide them throughout their lives is by the making of an Adoption Order.  There was evidence about whether the children’s identity would be altered in a negative way by the making of such an order.  KFF in particular has given some thought as to how she would wish to be known when an order is granted.  She does not wish to lose the respondents’ surname completely.  The petitioners have, in my view very sensibly, agreed that the girls’ surnames will be double-barrelled so that their surname would be “V-F”.  Counsel for the respondents challenged this idea suggesting that it was unheard of in an adoption situation and would somehow cause instability.  That was rejected firmly by BC who said that she had come across such a situation before.  In the society in which we live, it is now not uncommon for children to have a different surname from one or both of their parents.  For example, many married women do not now alter their surname on marriage and have a different surname from their natural children and step families where children may have a different surname from one or both of their main carers are a feature of modern life.  As I have already indicated, the proposed adoption in this case is the antithesis of the type of closed adoption prevalent in previous decades.  There is no desire on the part of the petitioners to rid these children of their current identity.  What they seek to do is to blend that identity into that of the family in which the girls have been accepted.  I conclude that the likely effect on both children throughout their life of the making of an Adoption Order in this case would be to reconcile in a meaningful and positive way their birth heritage with the secure and stable family into which they have been accepted. 

 

The Comparison of other Available Outcomes for the Children
[98]      The background to this case is unusual not just because of the blood relationship between the petitioners and the children but also because it has progressed as a private adoption notwithstanding that the children were placed with Mr and Mrs V as kinship carers by the local authority in implementation of its obligations pursuant to compulsory Supervision Orders being made in respect of each child.  There was a considerable focus in the cross‑examination of the petitioners’ witnesses on the regulations that would have applied had the local authority itself been contemplating adoption.  The undisputed evidence is that the local authority never considered adoption and regarded their decisions about the care of the children to have been effectively settled by their placement with kinship carers down south.  Within the passage of time since the children were placed with Mr and Mrs V in June 2014 and the success of that placement, the social work witnesses confirmed that they were now supportive of adoption and that confirmation is contained in the section 19 report prepared by BC and AH.  It is, however, for the court, having regard to all of the evidence, to assess whether adoption is the only order that will best promote the welfare of these children throughout their lives or whether there is some lesser order that can be made or whether no order should be made at all.  Accordingly, the various views expressed by the petitioners’ witnesses on these issues is of little assistance.  It does not matter that some of the witnesses had a rather limited understanding of the particular legal consequences of a Residence Order as compared with an adoption order as their role was not to decide between those options.  In so far as their incomplete understanding of the nature of alternative orders may have been conveyed to KFF when eliciting her views on adoption, I have taken that into account in deciding what weight to give to her views, but have concluded that the strength of her wish to be part of a “forever family” is more significant than her misapprehension that adoption was required to resolve the issues that there have been due to Mr and Mrs V’s lack of decision making power in respect of the girls.  I consider also that in considering the alternative available outcomes in these proceedings I thought to consider only the orders that I am empowered to make, including the option of making no order at all.  There was no evidence about the viability or appropriateness of English orders such as a Special Guardianship Order.  However, there is no challenge to the jurisdiction of this court and no suggestion that, if adoption is not necessary and proportionate in this case, there is any lack of appropriate available orders that can be made in this jurisdiction. 

[99]      The first possible outcome of these proceedings is to make no order at all and refuse the petitions.  The result of that would be that the respondents would continue to hold full parental responsibilities and rights in respect of both girls and Mr and Mrs V would have none.  The children would remain subject to compulsory supervision by the local authority.  The disadvantages of such an outcome for the children would be that, while they would continue to be cared for and nurtured by Mr and Mrs V, their carers could take no important decisions in relation to them.  The issue that has caused problems in the past in relation to delays or refusals by the respondents to give consent for the children’s activities would be unresolved.  KFF would be aware that her strong desire to be adopted and claimed forever by Mr and Mrs V had been rejected.  It is inherently counter-intuitive for those who have no direct contact with their children to hold the full bundle of parental responsibilities and rights in respect of them and conversely for those who provide a high level of indefinite care to have no such responsibilities and rights.  Parental responsibilities and rights are an important part of the legal framework through which children are cared for, safeguarded and protected.  On the basis of the evidence I have heard, I regard this as the most unsatisfactory outcome for these children and one that would be detrimental to their welfare. 

[100]    The second realistic possibility would be to make a Residence Order regulating the children’s residence with Mr and Mrs V and granting them some parental responsibilities and rights.   The main disadvantage of this option, in any of its forms, is that such an order would not subsist throughout the children’s lives and it would leave them effectively without legal parents on reaching their maturity.  I have already indicated that I consider the second respondent to have been wholly genuine in his emotionally expressed desire that the children return to live with him and his wife.  In these circumstances, it is clear that the second respondent’s current position is that he had wishes to take up any possible opportunity in future to seek a return of the girls to him.  The ability to challenge a Residence Order renders it a less secure option for these children in the long term.  That is what places this case in a rather different situation from circumstances of X v Y 2015 Fam LR 41 and LO v N & C [2017] CSIH 14.  In those cases there was no actual or perceived threat to the status quo by those whose parental responsibilities and rights would be extinguished by adoption.  The legislation is flexible enough to allow several parties to hold parental responsibilities and rights in respect of the same child or children where appropriate.  In situations of cooperation that can produce the best possible outcome for a child.  It may render the making of the draconian order of adoption unnecessary and disproportionate.  On the other hand, where, as in this case, there is no acceptance by the respondents that the children’s welfare will be better served in the long term by remaining where they are, the making of a more permanent unchallengeable order can be seen as necessary as being the only safe way of promoting as the paramount consideration in the children’s welfare in the long term.  Of course it would be possible to make a Residence Order and bestow parental responsibilities and rights on Mr and Mrs V and also extinguish the respondents’ parental responsibilities and rights but still refuse to make adoption orders.  Again, however, that would leave the children with no legal parent on gaining maturity as compared with allowing them to have parents for their whole lives.

[101]    For these reasons and in the particular circumstances of this case, I consider that the last resort option of adoption for these children by the petitioners is both necessary and proportionate.  None of the parties suggested that it would appropriate to grant an adoption order in respect of one of the children but not the other and I consider that it would be antithetical to the interests of whichever girl was not adopted to know, now or in the future, that she was in a different position to her sister.  The whole background supports such a conclusion.  The instability of the children’s lives from early childhood, the physical injuries to KCF while in her parents’ care, the failure to protect KFF from the risk of harm, the failure or  inability to change for the benefit of the children, the positive nurturing features of the current placement, the uncertainty and instability consequent upon the respondents inability or unwillingness to put the needs of the children even after they were  placed with the petitioners, the strongly expressed desire of KFF to be claimed properly and legally forever as part of the petitioners’ family and the risk of future challenge to any order short of adoption, taken together make adoption an imperative outcome in this case. 

[102]    If lifelong physical and emotional stability and security is provided to KCF and KFF by an order for adoption, it would be of benefit to them to maintain indirect contact with their birth parents.  There is an agreement between parties to the action that sets out in detail the form of that contact, which will include transmission of birthday and Christmas cards and presents, collages of photographs, school report cards and annual health reports and I will grant an order giving effect to that agreement.  This will allow the respondents to have ongoing information about their children’s lives.  It will benefit the children and will be facilitated by the petitioners who I am confident will continue to promote a positive image of the respondents to the children.  In contrast to telephone contact, which was not a positive experience for KCF and KFF latterly, indirect contact will provide meaningful links with their birth family in a way that does not threaten their stability or security. 

 

Disposal
[103]    For the reasons I have given I will grant orders for adoption in both petitions together with orders for indirect contact.  I will refuse to make the order for telephone contact sought by the second respondent.  I will reserve meantime all questions of expenses.