Jdm+fbm For Adoption Order Under Section 29 Of The Adoption And Children (scotland) Act 2007
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2012] CSOH 186 |
| Date | 12 December 2012 |
| Published date | 12 December 2012 |
| Year | 2012 |
| Court | Court of Session |
| Docket Number | AD1/12 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 186 | |
| AD1/12 AD2/12 | OPINION OF LORD GLENNIE in the Petition of JDM AND FBM Petitioner; for an Adoption Order under section 29 of the Adoption and Children (Scotland) Act 2007 in respect of the children L and B ________________ |
Petitioners: Loudon; Digby Brown LLP
First Respondent: Clarke; Drummond Miller LLP
Second Respondent: Leighton; Edinburgh Law
12 December 2012
Introduction
[1] This is a petition by JDM and FBM ("Mr and Mrs M") for an adoption order in respect of the children L and B. The children are presently living with them under fostering arrangements. The respondents are the natural or birth parents of the children, the first respondent, HR, being their mother and the second respondent, MR, being their father. The respondents were separately represented. They both oppose the making of an adoption order. In the alternative, they contend that if an adoption order is made, that order should contain provisions for ensuring regular direct contact between them and the children; and also between the children and their elder brother, P, who is resident with different foster carers.
[2] At the conclusion of the hearing, which lasted 7 days (the first day of the 8 day diet having been lost because of the late lodging of productions and statements and a general lack of readiness to proceed), I made an order granting the prayer of the petition and dealt with the question of contact. I gave brief reasons, founding (in relation to dispensing with the parents' consent) upon what I shall call for short the "welfare test" in section 31(3)(d) of the Adoption and Children (Scotland) Act 2007. In terms of the legislation, that test arises for consideration only if the "inability test" in section 31(3)(c) is not satisfied; but since I was persuaded that the welfare test was satisfied even if the inability test was not, I considered that I should say so, without at that stage making detailed findings in relation to the inability test (though I reserved my right to deal with all matters in detail should I be asked to produce a written Opinion). I took this course for two reasons: first, because, having come to a clear view on the matter, I considered that it was in the best interests of the children and all involved in their upbringing that a decision be given without the delay inevitably involved in writing up a formal Opinion; and secondly, because in my view it is generally undesirable, where it is not really necessary, to set out in detail conclusions on the competence and abilities of individuals who may yet have an important role to play in the life of the children. Detailed findings and conclusions of that sort set out in the form of a permanent record have the potential to cause upset and possible recriminations later on in life. However, I have been asked by the first respondent to produce a written Opinion and it is therefore necessary for me to go into these matters in more detail than I would have wished.
The facts in outline
[3] Most of the facts in this case were not in dispute. They were either admitted, or set out in reports which were spoken to in oral or affidavit evidence adduced on the part of the petitioners. Though there was some challenge to a few (and only a few) of the specific incidents mentioned, the real criticisms levelled by the respondents were directed at (a) the interpretation of those basic facts and the assessments of the birth parents and their parenting capabilities made by social workers and other professionals and (b) the absence of any adequate consideration of the reasons for their perceived failings. These are important criticisms, and I deal with them later.
[4] At this stage it is convenient to summarise, in the form of a narrative, the background facts leading to the present petition, and to highlight a few of the dominant themes which caused social workers at West Lothian Council to be concerned about HR and MR's ability to look after their children. Much of this narrative is taken from a number of Social Background Reports compiled by Susan Mitchell, the social worker involved specifically with this case from March 2010. Such Reports were designed to put relevant information before the Children's Hearing system. Much of the information was taken from departmental records. She gave oral evidence. She was an impressive witness, and gave her evidence in a thoughtful and measured way. I also heard evidence on these matters from Laura Mitchell, who was the social worker involved from September 2006 until Susan Mitchell replaced her in 2010; and from Donna Williams, a family support worker who had three years involvement with the family from about February 2006. They each spoke to certain incidents in the narrative contained in Susan Mitchell's report. They too were impressive witnesses and were clearly anxious to assist the court as best they could. Although some of their evidence was based on hearsay, what they had heard from other care workers involved, I accept their account of the facts set out below as presenting an accurate picture of the events that took place.
[5] HR was born in 1984. She has an older sister and a younger brother, though she does not know them. She and her siblings lived with their mother until she was 6 months old, at which point she was adopted by her great-maternal aunt and uncle who had children of their own. She attended primary school but was transferred to a special school for children with learning difficulties. She moved from her primary school to W Academy, where she continued to require learning support. She left school when she was 16 years old without any formal qualifications.
[6] Before meeting MR, HR had previously had a child, D (a boy), in July 2001, but she separated from D's father before D was born and has had no contact with him (D's father) since then. She went to live with her parents, who helped her care for D. In about 2004 she met MR, began a relationship with him and, very soon afterwards, moved in with him. She did not take her son, D, with her but left him in the care of her parents. She has had little contact with D since then.
[7] MR is about 19 years older than HR. He lived with his parents and an older brother until he was about 21 years old. He attended primary school and then W Academy. He too left school at the age of 16 with no formal qualifications. He did, however, go on to study through the Open University, gaining qualifications in communications, biology and maths. He pursued a career in nursing, completed his training in 1988, and became a fully qualified psychiatric nurse. He secured a full time post in 1995 and remained in that post until he was sacked in 2001, apparently for assaulting a patient. He has been unemployed since then. He is about 19 years older than HR, having been born in March 1965. It is unnecessary to go into his family background in detail but he described to Susan Mitchell "a complex and unhappy home situation", involving violence and aggression from his father. After his father died, his mother remarried. He told Susan Mitchell of a history of alcoholism involving both his stepfather and his brother.
[8] In about 1995 MR began a relationship which resulted in the birth of his son, M Jnr. Further incidents of alcoholism, reportedly on the part of his partner, led to the break up of that relationship. M Jnr was placed in the care of MR by social services in the late 1990s, but in January 2006 he was accommodated with foster carers due to serious concerns about his health and development. He remains with carers and there are, I am told, no plans for rehabilitation. MR has direct contact with M Jnr once weekly at the foster carers' home.
[9] HR and MR were married on 20 May 2004. They have had three children together: P (a boy) born on [ ] 2005; L (also a boy) born on [ ] 2006; and B (a girl) born on [ ] 2007. These petitions are concerned only with the proposed adoption of L and B, but the position of P is also relevant to some extent.
[10] Concerns about the parenting ability of HR and MR were voiced soon after the birth of P in August 2005 and long before the birth of L and B.
[11] On 17 November 2005, P's name was placed on the Child Protection Register and a referral was made to the Children's Reporter. The background to this was that early in October 2005 HR telephoned 999. When the police attended, MR admitted to making threats to burn the house down and kill HR's child, D (who was living with her parents). MR explained that it was only meant as a laugh, but the police were concerned about his mental health and took him to hospital. HR was distressed, and arrangements were made for her mother to look after both her and P. P was 6 weeks old at the time. According to HR, there had been two incidents previously when MR had threatened her. She had told him that their marriage was over and his response had been to threaten to burn the house down. MR was detained overnight. While dealing with this, it became apparent that there were concerns regarding the condition of the home and the parents' lack of awareness. An instance of this, reported by the police, was that HR had laid P down on the sofa without noticing that there was a pair of scissors by his head. In mid-October it emerged that MR was frequently attending hospital (at least twice a week) seeking medical attention when not only did he not require any and but he was being continually reassured that he did not require any.
[12] Due to the serious nature of these concerns and the potential risk to P, the Social Work Department convened a professional concerns meeting on 26 October 2005, at which it was agreed to arrange an initial child protection case conference.
[13] Towards the end of September 2005, HR contacted the Social Care Emergency Team noting that MR was punching himself hard in the chest. At P's 8 week developmental check with the GP, there...
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