Appeal By Kr Against Stirling Council
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lady Paton,Lord Drummond Young |
| Neutral Citation | [2016] CSIH 36 |
| Court | Court of Session |
| Published date | 24 May 2016 |
| Year | 2016 |
| Date | 24 May 2016 |
| Docket Number | XA83/15 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 36
XA83/15
Lady Paton
Lord Drummond Young
Lord McGhie
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the Appeal
by
KR
Appellant;
against
STIRLING COUNCIL
Respondent:
in an application by the respondent for a permanence order in respect of the child CNRRR
Appellant: Aitken; Balfour + Manson LLP
Respondent: Sharpe; CMS Cameron McKenna
24 May 2016
[1] The appellant is the mother of a child, CNRRR (referred to as “the child”), who was born on 26 April 2010. The respondent, Stirling Council, applied to the sheriff for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of the child. The action proceeded to a proof before the sheriff, following which the sheriff made a permanence order. That order vested a range of parental responsibilities and rights in the respondent. The sheriff also granted authority for adoption. In pronouncing the permanence order and granting authority for adoption, the sheriff dispensed with the parental consent of the appellant, and also that of JS, the father of the child, on the ground that they were unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and were likely to continue to be unable to do so in terms of section 83 of the 2007 Act. The sheriff further ordered that there should be only indirect “letterbox” contact, without the exchange of photographs, between the child and the appellant, and granted authority for the child to be adopted in terms of section 83 of the 2007 Act.
[2] The appellant has appealed against the sheriff’s decision. She contends that in making a permanence order the sheriff failed to apply the critical test for the making of such an order, that in section 84(5)(c)(ii) of the Adoption and Children (Scotland) Act 2007. Furthermore, she submits that the facts as found by the sheriff are insufficient to satisfy that test, if properly interpreted, and that on the facts found the grounds for dispensing with parental consent under section 83(2) and (3) of the 2007 Act are not satisfied. We propose to summarize the facts found by the sheriff; then to consider the requirements of the 2007 Act, in particular sections 83 and 84; and finally to consider the application of those requirements to the facts as found; for this purpose we have regard not merely to the sheriff’s formal findings in fact but to the other facts that appear from his judgment.
Facts
[3] The child’s father has had no involvement in the child’s life, as his relationship with the mother had ended before the child was born. The relationship involved physical abuse by the father towards the mother. The mother has contact with her own mother, but the two have a volatile relationship. On 5 August 2010 social workers raised concerns with the mother about contact that she had had with RK, a convicted sex offender; the mother maintained that she had been unaware that RK was a sex offender. On 21 February 2011 the child was placed on the child protection register as a result of concerns over non-engagement, sexual abuse, emotional abuse and neglect. At a meeting of professionals on 22 March, however, it was decided that there were insufficient grounds for a child protection case conference or for compulsory measures of care. The child began to attend a nursery in January 2011, but his attendance was sporadic and the nursery raised concerned about his cleanliness. Early in 2012 the child was enrolled at another nursery, which he attended on a regular basis.
[4] Throughout 2011 the child’s health visitor made 24 visits to address issues of safety in the house, safe storage of medicines, play, diet, nutrition, and issues of health and parenting. The health visitor had concerns about the child’s diet but described his care overall as being adequate. On 27 October 2011 the health visitor witnessed the mother handling the child roughly. On 16 February 2012 the health visitor prepared a report recommending that the child be placed on the child protection register. On 21 February the mother and grandmother attended an initial child protection case conference, but were asked to leave the meeting as a result of their behaviour. In May or June 2012 the mother formed a relationship with another man, DD, who had been released from prison on licence for violent offences. On 4 June the child’s grandmother alleged to social workers that the mother and DD had been drinking together and implied that this presented a potential risk to the child’s safety.
[5] On 20 June 2012 the grandmother reported to social workers that she had noted bruises on the child’s face and head. The health visitor arranged an appointment with the mother for later that day, but the mother failed to keep the appointment and claimed to have been visiting her father who had suffered a fit. The sheriff found as a fact that the mother deliberately avoided the health visitor to avoid the child’s injuries’ being reported to social workers. On the same day a child protection investigation was undertaken, in the course of which the mother gave a statement to a social worker and a police officer. The explanation that she gave for the child’s injuries was different from the one that she had given to the grandmother earlier in the day. The sheriff found as a fact that the mother gave inconsistent and contradictory explanations for the injuries on those occasions and that she gave yet another different explanation at the proof. The mother did not seek medical attention for the child following the discovery of those injuries. Nevertheless the child was examined by a consultant paediatrician on the same date. It was found that he had sustained numerous bruises to his forehead, cheeks, back, side, chest, thigh and knee. The consultant was of opinion that the bruising on the child’s face and head was likely to be the result of blunt force trauma. The sheriff found as a fact that some of the injuries were non-accidental and were caused by DD.
[6] On 21 June 2012 a child protection order was granted at Stirling Sheriff Court, and the child was accommodated with foster carers when he was discharged from hospital that day. He has remained with foster carers since then. The sheriff found that the mother has exercised contact on a regular basis, and her record of attendance at contact has been good. Contact has been of reasonable quality, although there have been difficulties as a result of the mother’s behaviour, which could be unpredictable and at times unsettling for the child. The child knew that the appellant was his mother. On 21 December 2012 grounds of referral were established at Stirling Sheriff Court on the basis of lack of parental care (Children (Scotland) Act 1995, section 52(2)(c)) and the mother’s relationship with a Schedule 1 offender (1995 Act, section 52(2)(d)). A children’s hearing was held on 7 January 2013, when it was decided that matter should be reviewed after three months to assess whether rehabilitation to the mother’s care was in the child’s interests. A child protection case conference was held on 29 January, at which the mother indicated that she wished to resume the child’s full-time care. It was agreed that the potential for rehabilitation should be assessed over a three-month period, and it was anticipated that extensive work would be done with the mother by the social worker allocated to the child, to focus on perceived deficiencies in the mother’s ability to care for him. The social worker offered to refer the mother to a parenting group, and she indicated a willingness to co-operate. When a specific opportunity was offered, however, in February 2013, the offer was declined, apparently on the basis that the mother required to help her own mother to move house.
[7] During February 2013 concerns were raised, initially by the police, that the mother had resumed a relationship with RK. During March the child’s case was transferred to another social worker, who recommended that moves should be made towards a permanence order, with the child outwith the care of the mother. In April a decision was made at a review meeting to pursue permanence, although the newly allocated social worker was unaware of the child protection case conference that had taken place on 29 January and the failure of her predecessor to conduct the work identified at that case conference. On 12 April 2013 the children’s hearing took place, as a result of which contact between the mother and the child was reduced from twice per week to once per week. In July 2013 a police report indicated that the mother was in a relationship with yet another registered sex offender, DL. The mother and DL have subsequently had a child born on 12 June 2014. That child was accommodated through a child protection order on his discharge from hospital following his birth. DL had been convicted of public indecency, lewd and libidinous practices and breach of the peace with a sexual element. At the date of the proof he and the mother were still in a relationship.
[8] Thereafter contact between the child and the mother was reduced, and since February 2014 has taken place once every six weeks. On 12 March 2014 the child moved to reside with prospective adopters, and he has remained in their care since that date. The sheriff found as a fact that the child is happy and settled with the prospective adoptive parents. He attends nursery. There are concerns about his behaviour before and after contact with the mother, and the prospective adopters do not believe that such contact is good for the child, although they would support indirect letterbox contact without photographs.
[9] The sheriff found that the mother has consistently failed to engage with social workers, health professionals and other agencies who had tried to offer assistance with parenting the child. She has failed to follow advice about not associating with...
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