Perth And Kinross Council For A Permanance Order
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2017] CSOH 101 |
| Date | 14 July 2017 |
| Docket Number | AD30/15, |
| Court | Court of Session |
| Published date | 14 July 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 101
AD30/15, AD31/15, AD32/15, AD33/15
OPINION OF LORD BRAILSFORD
In the petitions
PERTH AND KINROSS COUNCIL
Petitioner
for
(1) A Permanence Order in terms of the Adoption and Children (Scotland) Act 2007, section 80 in respect of a child RSH and (2) Permanence Orders with authority to adopt in terms of the Adoption and Children (Scotland) Act 2007, in respect of children, CMH, MRH and AJH
Petitioner: Loudon; Digby Brown LLP
First Respondent: Sharpe; Balfour & Manson LLP
Second Respondent: Cartwright; Drummond Miller LLP
14 July 2017
[1] These are four petitions in which applications are made in respect of sibling children under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”). The four children are RSH who was born on 14 June 2005, CMH who was born on 26 May 2009, MRH who was born on 21 May 2011 and AJH who was born on 7 January 2013. In relation to RSH in addition to the mandatory provisions set forth in the Act ancillary provisions are sought as follows: (a) vesting in the petitioners in respect of the said child the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the Children (Scotland) Act 1995 (“the 1995 Act”) and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act; (b) extinguishing in relation to the said child the parental responsibilities mentioned in section 1(1)(a), and (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a), (b) and (d) of the 2007 Act in respect of both the mother and the father of the child; (c) granting an order that there shall be no direct or indirect contact between the said child and the parents of the child; and to terminate the child’s Compulsory Supervision Order. In respect of the children CMH, MRH and AJH in addition to the mandatory provisions ancillary provisions were sought as follows: (a) vesting in the petitioners in relation to the children the parental responsibilities mentioned in section 1(1)(a), and (b)(i) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act, all in terms of section 82(1)(a) of the 2007 Act; (b) extinguishing in relation to the children, the parental responsibilities mentioned in section 1(1)(a), in (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a), in (b) and (d) of the 1995 Act all in terms of section 82(1)(c) and (d) of the 2007 Act in respect of both the mother and the father of the children; specifying that there should be no direct or indirect contact between the children and the mother and the father and granting authority for the children to be adopted. The mother of each of the four children is LWAH. The father of each of the four children is RRH. These persons were served with the petitions and compeered as the first and second respondents. For convenience and clarity they will be referred to throughout this Opinion as the “first respondent” or “second respondent”.
Procedural History
[2] The petitions were each presented to the court in November 2015 and were the subject of case management. On 7 January 2016 an eight day diet of Proof was allowed and for the purposes of such Proof the court permitted evidence in the petition relative to RSH to be held as evidence in the other three applications. The Proof was subsequently fixed for 30 March 2016 and seven ensuing days. By interlocutor dated 24 March 2016 the court, on the joint motion of the first and second respondents, discharged the said diet of Proof. The reason for the discharge was delay in preparation by the respondents occasioned by issues in relation to obtaining legal aid. A further eight day diet of Proof was allocated to 24 May 2016. This Proof could not proceed by reasons of lack of judicial availability on that date. A fresh diet of Proof was subsequently arranged. For the convenience of parties, the Proof was split into two four day diets, the first commencing on 20 September, the second on 11 October 2016. During the course of the second part of the diet of Proof, it became apparent that additional time would be required, primarily to enable the respondents to investigate a medical issue which had arisen in relation to RSH. The issue required the respondents to obtain the advice of a geneticist and to allow both an application for legal aid for that purpose to be processed and subsequently to allow the geneticist time to prepare a report, the continued diet of Proof was set for 16 May 2017 and five ensuing days. The diet of Proof was completed within that time period.
[3] The compeering parties reached agreement on many of the background facts relative to these applications. The result was a Joint Minute of Admissions. The Joint Minute was formally part of the process in relation to the application concerning RSH. It did however contain the extent of the agreement between the parties in relation to all four children. For clarity, the Joint Minute is reproduced:
“1. The Petitioner is Perth & Kinross Council, a local authority with an office at Pullar House, 35 Kinnoull Street, Perth PH1 5GD.
2. The child is RSH. He is male. He was born on 14 June 2005 at Dundee. He presently resides with foster carers and is designed c/o Perth & Kinross Council. He is not and has never been married or had a civil partner. He has no guardians.
3. The First Respondent is LWAH. She is RSH’s mother. She resides at [ ] She resides there with the Second Respondent, RRH, who is RSH's father. The Respondents were married on 21 May 2010. Both Respondents have parental responsibilities and rights in respect of the child.
4. RSH has three full siblings. They are: CMH who was born on 26 May 2009 at Dundee; MRH who was born on 21 May 2011 at Dundee and AJH who was born on 7 January 2013 at Dundee. Both Respondents have parental responsibilities and rights in respect of the three siblings. CMH and MRH are female and AJH is male. None of the three siblings is or has ever been married or had a civil partner. None has any guardians. CMH and MRH are living with foster carers, who are prospective adoptive parents. AJH is living with foster carers. The three children are designed c/o Perth & Kinross Council.
5. On 8 November 2012 RSH was referred to the Reporter by Dr Catriona Morrison, Locum Consultant Paediatrician, NHS Tayside, Perth Royal Infirmary, Perth. Production 6/4 is an accurate copy of the letter of referral.
6. On 28 February 2013 an Initial Assessment Report for the Reporter regarding RSH was prepared by Emma Brooksbank, Senior Social Care Officer of the Social Work Department of the Petitioner. Production 6/5 is an accurate copy of the Report.
7. On 28 March 2013 a Social Background Report for the Reporter regarding RSH was prepared by Janice Contreras, Social Worker. Production 6/6 is an accurate copy of the Report.
8. On 13 September 2013 CMH, MRH and AJH were referred to the Reporter by the Social Work Department of the Petitioner. Reports relating to the children dated 15 October 2013 were prepared by Janice Contreras, Social Worker. Production numbers 6/7, 6/8 and 6/9 are accurate copies of the Reports relating to CMH, MRH and AJH respectively.
9. On 29 October 2013 Children's Hearings in respect of all four children were unable to make any substantive decisions. The Hearings directed the Reporter to arrange further Hearings to consider Grounds of Referral.
10. On 21 November 2013 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/10 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing. Similar Orders were made in respect of CMH, MRH and AJH. The Hearings remitted the Grounds of Referral to the Sheriff for Proof.
11. On 12 December 2013 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/11 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached. Similar Orders were made in respect of CMH, MRH and AJH.
12. On 30 December 2013, at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/12 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached. Similar Orders were made in respect of CMH, MRH and AJH.
13. On 14 January 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/13 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached. Similar Orders were made in respect of CMH, MRH and AJH.
14. On 7 March 2014, all four children were made subject to Child Protection Orders and were removed from the care of the Respondents. Since that date, the children have been continuously in foster care. On 11 March 2014 at Children's Hearings, the Child Protection Orders were continued.
15. On 18 March 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/15 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing. The Hearings sent Grounds of Referral to the Sheriff for Proof.
16. On 8 April 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/16 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.
17. On 24 April 2014 at Children's Hearings, all four children were made subject to Interim Compulsory Supervision Orders. Production 6/17 is an accurate copy of the Order relating to RSH and the Reasons for the Decisions reached by the Hearing.
18. On 28 April 2014, Grounds of Referral were established at Perth Sheriff Court.
19. On 8 May 2014 and on 30 June 2014 at Children's Hearings, Interim...
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