S For Authority To Adopt The Child Fy
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Smith,Lord Kinclaven |
| Neutral Citation | [2014] CSIH 42 |
| Year | 2014 |
| Published date | 09 May 2014 |
| Date | 09 May 2014 |
| Court | Court of Session |
| Docket Number | XA105/13 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 42 | |
| Lady Smith Lady Dorrian Lord Kinclaven | XA105/13 OPINION OF THE COURT delivered by LADY SMITH in the Petition of S For Authority to Adopt the child FY _______________ |
Appellant: Scott QC, Clark; Aitken Nairn
9 May 2014
Introduction
[1] This case concerns a petition for the adoption of F, who was born on 28 July 2006, and has lived virtually all her life in family with Mr and Mrs S. They are, currently, her foster parents but they wish to adopt her. F was placed with them when she was one month old. The appellant is F's natural mother. F has never lived with her. She does not consent to F's adoption.
[2] By interlocutor dated 23 August 2013, the sheriff at Glasgow dispensed with the consent of the appellant and granted the adoption order. That part of the interlocutor which dispensed with the appellant's consent is in the following terms:
"Dispenses with the consent of the first respondent, B Y, the mother of the said child, to the making of said adoption order on the ground set out in section 31(3)(c) and section 31(4) of the said Act as well as on the ground set out in section 31(3)(d) of the said Act;".
As is set out more fully below, the provisions of section 31(3)(c) and 31(4) of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") concern the issue of whether a parent is able satisfactorily to discharge parental responsibilities and/or exercise parental rights, and section 31(3)(d) concerns the issue of whether the welfare of the child requires that consent be dispensed with.
Background
[3] The origins of this case are the death of the appellant's nine month old baby daughter. The appellant is from Pakistan. She and her husband, FY, entered the UK in late 2001/ early 2002, at which time they had one child, a son, W, who was born on 23 December 2000. They both claimed asylum on grounds of religious persecution. The basis for that claim was false. The true reason for their coming to the UK was that the appellant wanted her son to be educated here. The appellant has lived in Scotland since arriving in the UK and was granted leave to remain here on 21 February 2014. FY was deported in or about March 2012 and his whereabouts are said to be unknown; his consent was, accordingly, dispensed with by interlocutor dated 6 July 2012.
[4] The appellant gave birth to a daughter, A, on 25 December 2004, when she and FY were living together in Glasgow. Thereafter, the appellant was in full time employment and FY cared for the children when she was working. On 16 September 2005, W told a member of staff at the nursery he attended that FY had struck A. Later, W told hospital staff that FY had hit A and had also punched him on the stomach.
[5] On 17 September 2005, W, who was then four years old, was removed from the care of his parents and placed with foster carers; he has remained with them since then. The sheriff observes: "His life changed almost beyond recognition overnight." (Note: paragraph 167). Glasgow City Council is seeking a permanence order in respect of W, in proceedings which remain pending.
[6] W has repeated his report of FY having assaulted A and him to various professionals since 2005. Contact between the appellant and W ceased in July 2008; W has refused to have contact with her since then and their relationship has broken down.
[7] On 16 September 2005, A became ill, was admitted to hospital and died there, on 18 September 2005, having suffered significant injuries which included head trauma. FY was charged with having murdered A and assaulted W. The appellant was charged with a contravention of section 12 of the Children and Young Persons (Scotland) Act 1937 and granted bail subject to a special condition that she was not to discuss the allegations in the charges with W. That was an important bail condition, given the nature of the charges against FY and against her and W's status as a witness. The charge against the appellant was, ultimately, withdrawn (on 18 January 2008) but FY was convicted on 24 January 2008, after trial at Glasgow High Court, of the culpable homicide of A. He was sentenced, on 27 March 2008, to six years imprisonment. W had, at the age of seven years, been a witness in the trial of his father, FY.
[8] FY appealed against his conviction. His appeal was refused on 12 May 2011. The Scottish Criminal Cases Review Commission have, since then, referred his conviction to the High Court of Justiciary and it is understood that the final hearing in relation to that referral is due to take place shortly.
[9] The appellant knew, by late 2005, what W had reported about FY having assaulted both A and him immediately prior to A's death. She did not, however, between then and the trial, believe it. Nor did she accept that FY had been responsible for A's death, after he had been convicted.
[10] The appellant had contact with W after he was placed in foster care. She had to be persuaded to tell him that A had died having, in the meantime, left W under the misapprehension that his sister was still alive and being treated in hospital.
[11] Despite the bail condition to which we have referred, the appellant made it clear to W, on a number of occasions, that she did not believe what he had said about FY's behaviour to A and to him. On 9 December 2005, when W spoke of what FY had done, at a medical appointment, she told him that he should not say such things and said that he was lying; she accused a social worker of having caused W to make the allegations which, on the sheriff's findings, were ill founded. She went as far as to, during a contact visit on 6 June 2007, try physically to prevent W articulating what he had to say about FY's actions by wrapping her arms tightly around his head.
[12] On 4 February 2008, during a supervised contact session, W, under reference to his report of FY's behaviour, referred to the appellant not having believed him and said that if she did not believe him in the first place, she still would not do so. The appellant responded by saying that she did believe him. In June 2009, at the suggestion of the social work department, the appellant wrote a letter to W in which she apologised for not having believed what W had said about FY's behaviour.
[13] On 27 March 2008, the date when FY was sentenced, the appellant gave an interview to a journalist in which she said that it was W who was responsible for A's death, not FY.
[14] The appellant has, since March 2008, continued to make statements which indicate that she does not accept that FY caused the death of A. She has, notwithstanding her representations to W in February 2008 and June 2009, remained and remains, at best, ambivalent regarding the matter of FY's guilt. The sheriff considered that she is:
"...at best ambivalent about the second respondent's responsibility for the death of A. At worst she continues to hold the child's brother W responsible for the death of A" (Note: paragraph 157)
and concluded:
"Her inability to accept the guilt of the second respondent has not changed over the past, almost, eight years." (Note: paragraph 159).
[15] Social workers responsible for F have been and remain concerned about the appellant's handling of W at the time of and following A's death and her attitude to the matter of FY's guilt. They consider that they demonstrate an inability to meet F's emotional needs.
[16] By July 2011, the social workers responsible for supervising F's placement considered that the time had come to tell F about A's death. The appellant was reluctant to agree to that. She did not appear to understand why it was important to do so in a planned and supportive way prior to F starting school, where there were children who knew about the circumstances of A's death. F was told about it in the course of a visit by a social worker on 5 July 2011. She was shocked and needed the support of W, who was present in S's house at the time.
[17] Also in 2011, between July and December, a foster child who had been living with Mr and Mrs S for three years and who had been like an older sister to F, was moved to another placement and, in December 2011, F was present at a children's hearing when there was some discussion about the appellant's wish to have F live with her.
[18] From early 2012, F exhibited increased levels of anxiety if separated from Mrs S. The sheriff concluded it was likely that
"the coincidence of the said events during 2011 has operated to make the child anxious about separating from the female petitioner in particular." (Note: paragraph 207).
F has told social workers:
"I want to stay with ......,my mum and .....my dad. I mean it! Maybe once a month maybe, I would see (the appellant). I would like .....to come with me or someone." (Note: paragraph 55)
and the sheriff was told by a clinical nurse specialist who had worked with F in relation to her increased levels of anxiety and who gave evidence, that F was aware of the current adoption process and "very,very,very worried that she would leave the petitioners' care" and be placed with the appellant (Note: paragraph 57).
[19] Mr and Mrs S have provided a stable family home for F since she was first placed with them which has been of great value in supporting her overall development to date. They consider that they have always been F's parents; they love her. Mr S, who was born in Pakistan, is of the same religious persuasion, racial origin and cultural background as F and speaks Urdu, which is also the appellant's first language. Mrs S is of white Scottish descent. Mr and Mrs S are both Muslims. F views them as her parents. She views their extended family as her extended family. She wishes to live with Mr and Mrs S forever; they are her primary attachment figures. F wishes them to be her parents. She is also close to W; Mr and Mrs S facilitate frequent and regular contact...
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