Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 63
P1022/11	OPINION OF LORD MALCOLM in the petition of MIDLOTHIAN COUNCIL Petitioners; in respect of an application for a permanence order in respect of a child S ­­­­­­­­­­­­­­­­­________________

Pursuer: Ms M Hodge, advocate: Anderson Strathern LLP

Defender: Ms M Clark, advocate; Thorley Stephenson SSC

13 April 2012

[1] The petitioners seek a permanence order under and in terms of sections 80/84 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act) in respect of a female child, S, born in May 2010 (the child). The petitioners also ask for an order vesting in them certain parental responsibilities and rights in terms of sections 1 and 2 of the Children (Scotland) Act 1995 (the 1995 Act). The court is asked to extinguish the parental responsibilities and rights held by the child's natural parents, except those in relation to contact, and to dispense with their consent to the making of an adoption order. Authority is sought for the child to be adopted and for termination of a supervision requirement. Neither of the natural parents has consented to the making of an adoption order. Only the mother (the respondent) has lodged answers to the petition. At a proof she maintained her opposition to the orders sought by the petitioners. In this opinion quotations are annonymised without the use of obtrusive brackets.

Joint Minute of Agreement
[2] The following matters are the subject of agreement between the petitioners and the respondent, and set the overall context for the issues which require to be addressed. The child is the second child of the respondent. The respondent's first child is J, a son, born in June 2004. The respondent was born in 1985. She has a history of dependence on illegal drugs since she was 16 years of age, principally heroin. She has also used benzodiazepines and crack cocaine. She has an offending history dating back to 2000. There has been significant social work involvement. Her drug abuse has led her into criminal activity. Since 2003 she has had convictions for criminal offences for act of dishonesty. She has a conviction under section 12(1) of the Children and Young Persons (Scotland) Act 1937 in relation to J. In 2006 she received a drug testing and treatment order ("DTTO"), which she also breached, and was sentenced to a period of detention. In 2007 the anti-social behaviour team obtained an anti-social behaviour order preventing the respondent from entering specific shops and streets. The respondent breached that order on two occasions.

[3] In 2009 the respondent was referred to the substance misuse service. She is a registered methadone user. In October 2009 when she advised the substance misuse services of her pregnancy, the respondent had not seen a doctor. At the time she was using heroin and methadone. The respondent and her children's father have had a long term relationship, with periods of separation. She has experienced violence in the relationship. In October 2010 she informed her social worker that they had separated. She and the father remain friends.

[4] The respondent was made the subject of a 12 month DTTO II on 7 April 2010, following a conviction for theft and shoplifting. Amongst other things the order provided for twice weekly drug testing. At the time of her first assessment she was spending £10 a day on heroin, and was also receiving a prescription for methadone. The respondent was around 8 months pregnant at the time of her first assessment. She was assessed as suitable for a DTTO. Initially her attendance was irregular and her drug declarations were not accurate. She was issued with a formal warning in relation to non‑compliance on 27 July 2010. She was reminded of the importance of improved attendance on 6 August 2010. As a result of poor progress she was issued with a second formal warning in relation to non-compliance on 16 November 2010. She tested positive for cocaine until 14 September 2010.

[5] The respondent was a regular heroin user until 3 November 2010. Her drug tests were mainly negative from 14 September 2010 until 19 May 2011, with the exception of two tests on 16 November 2010 and 12 April 2010 which were noted as "opiates only". This could indicate the detection of either a small amount of heroin or possibly codeine‑based painkillers. On the latter date the respondent declared the use of a codeine-based analgesic. The respondent completed the DTTO II on 6 April 2011. Thereafter she agreed to a voluntary after-care programme. Her methadone prescription was taken over by Midlothian Substance Misuse Service on 7 June 2011. On 19 June 2011 she tested positive for benzodiazepines.

[6] The respondent has made considerable progress in overcoming her use of illegal drugs. The respondent remains stable on methadone. She has completed her DTTO and a 3 month voluntary after‑care programme. The respondent has rarely been employed because of her involvement with drugs. Since November 2010 she has completed a college course in beauty therapy. She is in receipt of state benefits and now volunteers in a charity shop three days per week. She has her own tenancy.

[7] The child's natural father was born in 1971. He has a history of drug dependence since he was a teenager. He has 13 previous convictions. He has been convicted of supplying illegal drugs and has a conviction for carrying an offensive weapon in 2003. In 2007 he was convicted of a serious assault and was imprisoned for 8 months. He has long term mental health issues and has been violent towards the respondent. He has breached a DTTO. On 2 February 2010 an 18 month DTTO was imposed by the sheriff at Edinburgh. On 27 May 2010 his social worker completed a review for the sheriff court confirming his poor engagement. The father was issued with formal warnings in June and July 2010, and a final warning in September of that year. A breach report was submitted to court in November 2010 for his failure to attend appointments and failure to demonstrate a reduction in drug use. The order was continued as he had begun to provide negative results for heroin and cocaine. He completed the DTTO in August 2011. He remains on prescribed methadone. He has another son aged 9 who lives in the borders with his ex-partner. He does not have contact with this child.

[8] KP is the respondent's mother. She resides in the same Midlothian town as the respondent. She has five other adult children. She has cared for J since 2005. She also cares for the child of another daughter, who recently died.

[9] J was removed from the care of his parents under a child protection order. His care was transferred to KP in May 2005. KP is currently seeking a residence order in respect of J in terms of section 11(5) of the 1995 Act. The respondent has not opposed the granting of that order. Since May 2011 the respondent has had unsupervised contact with J. Since August 2011 she has had overnight contact with J on two nights each week. J has contact with his father at his father's mother's house. The respondent would like to have J back in her care. J has had regular contact with his sister, and continues to do so once each month. J is fond of his sister and enjoys seeing her.

[10] On learning of the respondent's pregnancy with the child, on 16 February 2010 the petitioners held a child protection case conference (production 22/1/). The unanimous decision was to place the child's name at birth on the child protection register. During March-April 2010 an assessment was made to ascertain whether the child could be placed in the care of the respondent. The petitioners concluded that this would not be in the interests of the child. At a core group meeting on 14 April 2010 it was noted that the father's sister, JH, and her husband, SH, were being assessed as prospective foster carers for the child. The child has been a "looked after" child since her birth. A child protection order was granted shortly after her birth.

[11] After discharge from hospital, the child was placed with JH and SH. They reside together in a town to the west of Glasgow. On 8 July 2010 a children's hearing made a supervision requirement in respect of the child that she reside with JH and SH, with a condition of contact with the respondent and the father for an hour twice each week. Contact took place at the home of JH and SH from July 2010, but after a short period was transferred to supervised sessions at a social work office.

[12] The children's reporter referred the child to a children's hearing on 10 August 2010 in terms of section 52(2)(c) of the 1995 Act, namely that the child was likely to suffer unnecessarily or be impaired seriously in her health and development due to lack of parental care, the said grounds having been found established by the sheriff on 30 July 2010. A review child protection case conference was held on 23 August 2010. It was decided to remove the child's name from the child protection register. A looked after child review took place on 25 November 2010. The DTTO report (production 22/56) advised the review that due to poor progress the respondent had been issued with a second formal warning for non-compliance. The child was registered for permanence on 11 January 2011 at a meeting of the permanence and adoption panel.

[13] The petitioners do not consider that rehabilitation of the child to the respondent is a viable option. In an assessment of 18 March 2011, prepared for a review children's hearing on 28 March 2011, it was recommended that JH and SH should be assessed as adopters for the child. The review took place on 28 March 2011 at which the petitioners sought the advice of the hearing in relation to the proposed adoption. Neither the respondent nor the child's father were in attendance. The child's allocated social worker was absent. The panel continued the supervision requirement with a condition of residence with JH and SH. Contact with the parents was reduced from twice per week to once every two months. Contact with both maternal and paternal grandparents was reduced to once every two months, including an overnight stay. The children's hearing unanimously agreed to the petitioners' plans for permanence through adoption, and supported the application for a permanence order.

[14] The respondent appealed that decision in relation to the reduction of contact. The reporter conceded the appeal. By interlocutor of 3 June 2011 the sheriff granted the appeal and remitted the case back to the children's hearing. By the time of determination of the appeal the petitioners had lodged the current permanence order petition with Edinburgh Sheriff Court. Following the granting of the appeal, the children's hearing decided that it was unable to reconsider contact due to the initiation of the permanence petition. The petition first called in July 2011. It was established that a debate upon jurisdiction was required. The debate occurred in August 2011, following which the sheriff remitted the cause to the Court of Session.

[15] An advice hearing took place on 5 July 2011. The hearing appointed a safeguarder. On 18 August 2011, at a further hearing it was recommended that contact be changed to once a month. The safeguarder supported the petitioners' plan for adoption in his report of 10 August 2011. JH and SH underwent a kinship adoption assessment by social worker Philipa Hurley, commencing in July 2011. She recommended that they be matched with the child as approved adopters. At a meeting of the adoption and permanence panel ("the matching panel") on 6 December 2011, the panel unanimously recommended that SH and JH be approved as prospective adopters. The child has been placed for adoption in terms of section 83(3) of the 2007 Act. Neither natural parent consents to the order.

[16] By interlocutor of the Court of Session dated 6 October 2011 the child has had contact with her parents and grandparents on one weekend each month. At present KP, the child's maternal grandmother, collects the child from her home in the west of Scotland on a Friday. The child spends 24 hours with her. The respondent has two hours of contact with the child during this period at KP's house, supervised by KP. The respondent sees the child for one hour on a Friday evening to allow her to prepare the child for and settle her to bed. She sees the child for one hour on the Saturday afternoon immediately prior to her departure. J and his sister see each other throughout her time with KP. The child's paternal grandparents collect the child on the Saturday afternoon and she stays overnight with them. She is then delivered back to the home of SH and JH, or collected by them. The quality of the contact between the respondent and the child is positive. The father and KP have recently quarrelled, so the father has contact with the child at the house of his parents, supervised by his parents.

[17] After her birth the child suffered from mild neo-natal abstinence syndrome. She is now healthy and meeting her developmental milestones. JH and SH have given the child appropriate and sustained care. She has an emotional attachment to them. She is safe and secure. They have two sons aged 19 and 17, who both have a close relationship with the child. SH and JH are capable of providing a secure and loving home for the child within a stable family unit. The child is incapable of consenting to the order sought, being too young to express any views.

[18] The respondent volunteers in a charity shop on three days per week from 10am until 3pm. She is a good worker and is required to handle money and attend to customers. It is also a matter of agreement that a meeting took place at the offices of Children 1^st on Friday 28 November 2008 in relation to the child J, and that the persons named in the minute contained within production 7 for the respondent were present.

The social work evidence
Patricia Moran
[19] Patricia Moran gave evidence and also provided an affidavit. She is a qualified social worker currently based in Dundee. Previously she spent two years as a locum social worker for Midlothian Council when she was the allocated social worker for the child and her brother J. At that time J had been removed from his parents care due to their illicit substance misuse. There was "a very acrimonious relationship between all family members.". During her second pregnancy the respondent was using drugs heavily. She failed to attend appointments. In early February 2010 Ms Moran prepared an assessment for presentation to a pre‑birth child protection case conference (production 22/2). The assessment noted:

"As a couple (the parents) have failed to meaningfully engage in long‑term interventions with social work services or drugs support agencies to allow the return of their son. It their son is ever to return to their care they will require to evidence that they have changed their use of illegal drugs and improved their lifestyle. (The mother) has always gone back on her promises. There have been planning meetings and LAC reviews after which it was hoped that there would be new beginnings. Unfortunately (she) did not adhere to care plans."

As to the father, the assessment stated that he:

"acknowledged that his behaviour deteriorated during his teenage years when he started to associate with an anti‑social peer group. He said that with this peer group he frequently used alcohol to excess and engaged in violent conflicts with other local youths. (He) acknowledged that his lifestyle further deteriorated when he started to use illegal drugs when he was around 25 years old."

The assessment recorded that the father also has an older son to another woman, who lives with his mother in the borders region, and whom he rarely sees. Over the years he has had minimal involvement with J. The parents' relationship has been characterised by many separations and reconciliations. Overall the recommendation was that the baby be registered on the child protection register as being at risk of physical neglect. There were "serious concerns" about the risk posed to the child returning home to the sole care of her parents. The plan was to rehabilitate the baby to the mother's care, unless evidence showed that this was not in the best interests of the child - ie if she was unable to demonstrate commitment to improve her situation and the ability to prioritise and meet the needs of her child. It was noted that the parents did not agree with the recommendations.

[20] The case conference took place on 16 February 2010 (production 22/1). It was chaired by a child protection reviewing officer. It was attended by social work, police, medical, prison service and substance misuse personnel, plus the parents and members of their family. Apologies were received from JH and SH. The decision was that the child's name would be placed on the child protection register because of fears of physical neglect. The general recommendation was that after birth the baby be placed outwith the family. The chair confirmed this as the unanimous decision. The social work authority would apply for a child protection order when the baby was born. It was noted that KP, the respondent's mother, could not cope with another young person under her care.

[21] Ms Moran stated that the parents suggested to her that JH and SH could look after the baby. They had been in contact with JH. This was the first time that Ms Moran had heard their name. JH, who is the child's father's sister, had indicated that she was willing to look after the child for as long as was required. That was why she was invited to the case conference. In the result there was no discussion of JH and SH at the conference.

[22] Ms Moran was involved in a core group meeting on 14 April 2010 (production 22/24). At this time she was exceptionally concerned for the new child. She had made contact with JH and SH and had commenced their assessment. They were prepared to give one hundred per cent for as long as was necessary. Ms Moran warned them that it could be a long‑term commitment. Ms Moran stated that the mother asked for this to happen. As the birth approached, she wanted anything other than foster care. At that time Ms Moran mentioned "permanency" to the mother. In the minute of a core group meeting it is noted that SH and JH (wrongly described as the "maternal" aunt/uncle) were being assessed as prospective foster carers. In her affidavit Ms Moran stated that everyone was supportive of the decision that the child be placed with SH and JH, including the child's parents.

[23] The child was born in mid May 2010. On discharge from hospital she was placed in the care of SH and JH. There were initial issues about the baby's withdrawal symptoms. JH was particularly anxious about the baby's health. There was contact twice a week between the baby and her parents in the home of JH and SH. There were problems with this arrangement, no doubt contributed to by the parents' continuing illicit substances misuse. In due course the contact was moved to an external agency under supervision. KP became unhappy with the child's placement. The parents' relationship was difficult at this time. They were both on a DTTO. By this stage the child was the subject of a child protection order. In early July Ms Moran prepared an assessment for a children's hearing (22/29) which had been arranged to assess the need for a supervision requirement and condition of residence. At this stage Ms Moran considered that the parents' view that they could look after the child and J was unrealistic. Their issues had not been resolved, and they were unable to engage with those trying to support them. The mother would blame other people and lie about her drug use. In the assessment Ms Moran noted that "it is likely the local authority will proceed to applying for a parental responsibilities order so that JH and SH can be supported to provide care to the child long‑term". Despite the child's unplanned arrival, JH and SH were well prepared, with appropriate equipment and clothing. Their home was well furnished and well maintained. They had demonstrated their ability to be organised and motivated in baby routines and in meeting the child's needs. They were "a pleasant couple and very child centred." They had a good support network of friends and family. They were both in employment and the child attended a nursery two days a week. Ms Moran recommended that

"it would be in the child's best long‑term interests to remain within the care of JH and SH's extended family to whom she has a close attachment and clear sense of family identity. JH and SH have indicated that they would prefer the child to remain with them. The child would benefit from a permanent placement in a family who can give her positive regard, love and affection, as well as setting clear, consistent boundaries...The writer recommends that the child be subject of a home supervision requirement with condition of residence with JH and SH."

It was noted that the parents did not agree with the recommendations, stating that they should be given the chance to prove themselves. JH and SH had confirmed that they were able to commit to the child's long‑term care if required. The parents had agreed that they would support this if the child was unable to be rehabilitated to their care. A review family group conference meeting was held on 27 July 2010 to fully explore the extended family's intentions with regard to the child. In evidence Ms Moran commented that the parents were aware that the non‑return of the child was at least a possibility.

[24] On 8 July 2010 a children's hearing took place when the decision was made to renew a warrant to detain the child in a place of safety for up to 22 days. There were still too many concerns around the parents' lifestyles not to continue the warrant. It was also decided that contact between the child and her parents should take place for one hour, twice per week, and should be supervised by or on behalf of Midlothian Council.

[25] In August 2010 Ms Moran completed an assessment (production 22/6) for a review child protection case conference which was held on 23 August 2010. By this stage the social practice manager and the resource manager had decided to pursue permanency plans for the child with a recommendation to the adoption and permanency panel for adoption. Ms Moran had discussed this with the respondent and with JH and SH. The respondent was advised about this, albeit rehabilitation always remained an option. It was noted that recently the respondent had been on a DTTO order. Her attendance had been sporadic and she continued to abuse illicit substances. At the conference similar comments were made in relation to the father's performance in relation to his DTTO. The care provided by JH and SH was praised. It was noted that the child had contact with her parents for one hour twice a week, supervised by a care agency. This took place outwith the home of SH and JH. The respondent had attended all contacts - the father had attended just over half. The child appeared to be thriving and meeting all developmental milestones. She had regular contact with extended family members, including her brother. She spent a weekend every fortnight with her maternal grandmother and paternal grandparents. There was no doubt that the parents loved the child, but there was evidence that they continued to use illicit substances. They were unable to demonstrate by their actions that they would be reliable and responsible parents. Ms Moran recommended:

"It would be in the child's best long‑term interests to remain within the care of her extended family to whom she has a close attachment and clear sense of family identity. JH and SH had indicated that they would prefer the child to remain with them. She would benefit from a permanent placement in a family who can give her positive regard, love and affection as well as setting clear, consistent boundaries."

A decision had been made to pursue permanency plans with, given the child's age, a recommendation for adoption as the preferred long‑term plan. The child was subject to a supervision requirement with a condition of residence with SH and JH. The risk to the child's safety had reduced and registration was no longer required. JH and SH had confirmed that they were able to commit to the child's long‑term care if required.

[26] By letter dated 16 August 2010 (production 22/38) Ms Moran received a report from Fiona Oxley, a social worker on the drug treatment and testing order team. The report had been prepared for the case conference on 23 August 2010. The respondent had begun the treatment order in April. She had consistently tested positive for opiates on all bar one occasion.

"In addition to on-going heroin use the respondent continues to regularly use crack cocaine. In addition...it has been a concern that there have been occasions whereby she has not declared all her illicit drug use at the time of testing. This makes it difficult to provide her with the appropriate interventions and ultimately delays progress."

The conclusion was that, although the respondent presented as an intelligent and insightful individual who was willing to address her substance misuse with support, and despite their being an intensive drug treatment programme designed specifically to meet her needs, she had not applied herself in a constructive manner. She had not demonstrated a significant commitment to a changed lifestyle of the kind which would be required in order for her to be able to provide a stable environment for her child's future. Having read this report, Ms Moran's thinking was that the child would not be returning to her parents. She did not expect that the respondent would be able to overcome her problems, being so caught up in a lifestyle of drug abuse. The belief was that the respondent was being supplied by the child's father. Ms Moran left Midlothian Council in August 2010. The child's case was allocated to another social worker, namely Katie Baker. Before she left, Ms Moran spoke to Sue Brunton, the social work practice manager at the time, and advised her that her view was that the child was thriving and should remain with her carers.

[27] In cross-examination Ms Moran accepted the proposition that this was a "dark time" for the respondent. She agreed that it was the respondent's illicit substance misuse which impeded her ability as a parent. There was no doubt that she loved her children. Ms Moran had seen her with J many times and noticed warmth, affection and love. If she had not been involved in drugs she would have been able to care for her child. She was asked whether the respondent had approached JH and SH or whether it was vice-versa. She did not know. When under the influence of drugs, the respondent had been phoning JH almost every hour. The condition of the child's father, JH's brother, heightened the problems. The "dynamics" between JH and her brother were not good. Ms Moran agreed that the respondent's separation from the child's father towards the end of 2010 was a positive event. The respondent's family was "very difficult" with "lots of shouting, arguments, and threats when they are all together". If the respondent was off drugs there was always a fear that she would relapse. She had been clean before and then relapsed.

Katherine Baker
[28] Katherine Baker (known as "Katie Baker") gave evidence and lodged an affidavit. She obtained a certificate of qualification in social work in 1991. Until 1999 she worked for Wigan and Wirral Metropolitan Burgh Councils in their child care departments. She joined the petitioners in May 2010, having previously worked with Perth and Kinross Council in the adult social work department. She was assigned to the child's case on 19 August 2010. For a short period before that she had assisted Patricia Moran in various aspects of the case. She took over the case when Ms Moran left the department. At that time the council was intending to seek a permanence order. The child's parents were still "chaotically abusing illegal substances". There were increasing tensions between the parents and JH and SH, and Ms Baker organised the supervision of contact through a private agency. Under reference to production 22/28, Ms Baker indicated that the sessions at the contact centre began on 21 June 2010.

[29] After taking over responsibility for the case, Ms Baker's first main involvement was at a review child protection case conference on 23 August 2010. At this meeting it was agreed that the child's name could be removed from the child protection register. It was confirmed that there was a clear plan for the child to remain with her aunt and uncle, and to pursue adoption. Following this Ms Baker had to prepare for the adoption and permanence panel. It is normal to move towards adoption in respect of such a young child. That said, the decision not to pursue rehabilitation with the parents could always be reviewed. The minute of the case conference records a general discussion to the effect that the child's father found it difficult to accept that his current lifestyle had any bearing on his parenting skills. The mother was more realistic and accepted that, at that stage, she was not able to parent either of her children on a full time basis. Both parents found it hard to accept the level of contact with the child being curtailed to a couple of one hour sessions per week. They also found it difficult to accept that, because they had not been able to show any progress in respect of reducing their drug misuse, the child's long term needs may have to be met by someone else. Ms Baker found the child to be a delightful baby. The health visitor had reported that the child was meeting all her developmental milestones. All reports and discussions indicated that the child was thriving in her placement with her aunt and uncle.

[30] A six week review meeting took place on 25 August 2010 (production 22/46). The chair asked the parents if they were aware that the plan for their child was an application for a permanence order with authority to adopt. They advised that they were not aware of this, and did not want the child to be adopted. Ms Baker thought that the plan for the child had "not sunk in" with the natural parents. The parents were happy with the current placement, but would like the chance to work towards her return. JH stated that they were willing to do everything possible to ensure that, if the child was not returned to her parents, she would stay with them, whether under a section 11 order (under the 1995 Act) or a permanence order with authority to adopt. "They do not want the child to stay in the system for the rest of her childhood: they want what is best for the child." The chair of the meeting explained to the parents that the permanence panel would take everything into consideration, and if the parents did get back on track, they would have to sustain it for a lengthy period, show consistency, and be able to provide evidence of this. There were concerns that they would not be able to do this given that they had not been successful in the past.

[31] The respondent stated that she was on 120ml of methadone, 25ml of diazepam and her DTTO would end on 7 April 2011. The father was on 125ml of methadone, 35ml diazepam, 30ml Prozac (4 times per day) and pain medication. He also "topped up" with a £10 bag of heroin each day. It was noted that the respondent had attended all contacts with the child. As far as JH was aware, the contact was "going ok", with no problems with the child before or afterwards. The respondent asked how long she was be expected to provide clean samples before it was believed that she had turned things round, and asked, by this time will it not be too late to get the child back? The chair pointed out that it is never too late, and the final decision rests with the court. If she could prove that she was clean and could demonstrate capability of meeting the child's day to day needs, this would be taken into consideration. Ms Baker remarked that if the mother was still with the father and he was not clean, that would not happen. The mother would require to make a decision; does she want to stay with the father if he is not clean and she is? It was not long afterwards that the child's mother began to make significant progress in addressing her problems. At the meeting JH said that both she and SH were committed to the child and would do whatever it took to keep her within the family, even if that meant that they would require to be assessed for their suitability as adoptive parents. (It can be noted that some of the key issues which now require to be resolved were foreseen and discussed at the meeting in August 2010.)

[32] It was decided that the case would be considered at the December adoption and permanency panel, with all the information and the pros and cons of different options being put to the members of this meeting to gain their recommendation. A health assessment was prepared in November 2010 by Dr J Glen (production 22/7). It was noted that the child is "a healthy little girl who has never had any hospital admissions and who does not need any routine medications. Her carers have absolutely no concerns about her and find her to be a very happy and contented child. ...During the consultation the child was very happy, cooperative and alert. She thoroughly enjoyed any activity which required interaction with other people. If unsure she looked to her carers for reassurance and their response to her needs was prompt and entirely appropriate." The doctor examined the child and, in summary, expressed the view that she is very healthy and has entirely age appropriate development.

[33] A routine review took place on 25 November 2010 (production 22/54). Ms Baker prepared a report for this meeting (production 22/51). Fiona Oxley provided another report in relation to the DTTO (production 22/56) indicating that the respondent continued to demonstrate compliance issues and was not applying herself fully to the treatment plan. She had not demonstrated a significant or sustained commitment to the necessary changes in lifestyle. At the review meeting Ms Baker advised that she had concerns about long‑term contact. She was of the view that the respondent would undermine the placement should it be agreed that the child stay with SH and JH on a permanent basis. The respondent had told her that if the child calls them "mum and dad", she will correct her. The respondent confirmed that this was her intention, and that J would also correct the child. The chair confirmed that a section 11 application (in terms of the 1995 Act) had been ruled out given the issues with contact. Ms Baker added that "there is far too much tension in the family" for a section 11 to work. If the permanence order with authority to adopt was granted, contact could be considered. The chair informed the respondent that her DTTO report did not bode well.

[34] On 19 October 2010 Ms Baker prepared a report for the adoption and permanency panel to take place on 30 November 2010 (production 22/57). She noted that when the child was placed with JH and SH there appeared to have been no clear discussion with the carers or the birth family as to how this would be legally secured, or what it would mean in terms of who would have responsibility in respect of decisions concerning the child. The respondent seemed to have been under the impression that the child being with JH and SH would work in a similar way to J being at his grandmother's house. However the child being with JH and SH was different, and not just because of the distance involved, although that was a complicating factor.

"Understandably the respondent does not have the relationship with JH and SH that she enjoys with her mother. Since the child's placement, tensions have developed in the relationships between JH and SH and the respondent. JH felt that the respondent was making too much contact with themselves and was unsettled by her constant telephone calls and texts. She found that supervising the contact in the house was too stressful given that she did not have an easy relationship with the parents. This led to the contact being supervised externally by an agency... . The respondent has become more negative about JH and SH believing once any order is made they will not let her have contact."

The report discusses other factors contributing to the tension between the parties. Matters had reached the stage that the respondent was talking of the child moving to a foster placement; though she had been told that, if that were to happen, it would be for the purposes of adoption. Both the respondent and her mother wanted the child to have significant amounts of contact with all the extended family. KP still asserted that she would like to have the child in her care. She had been told that she was too old for this. KP hoped that both her daughters would be able to resume the care of their respective children.

[35] Ms Baker then discussed the options of a section 11 order; a permanence order; or a placement with different non‑family carers secured via adoption or a permanence order. For a section 11 order to work, "there would need to be good relationships between the adults, with them working together positively in the interests of the child and the other children." She was not convinced that this would happen. Whichever legal route was followed, she could foresee conflict if the child remained with SH and JH. It was not anticipated that the family members would be able resolve those issues. There were already issues over contact which the family seemed unable to resolve. There were other issues relating to a lack of trust. Ms Baker foresaw a series of conflicts between various family members "which could leave the child at the centre of an on‑going power struggle which would not be in her interests." She was concerned that a section 11 order "would leave many issues unresolved in a family that has shown itself unable to resolve such problems."

[36] In a thoughtful analysis, Ms Baker recorded that it seemed to her that the child's best interests would be met through adoption. That raised the issue: should that be with SH and JH or in a different, out of family placement? So far as SH and JH were concerned, there was no evidence of any issues of concern "other than that of relationships within the family." JH and SH had stated their willingness and desire for there to be ongoing contact with the child's parents, J and KP. However Ms Baker was not convinced that they would be able to "stand up" to members of the child's wider family, who could be demanding and not always diplomatic in the way they approached issues. "Ultimately if members of the child's family are unable to accept the placement and create difficulties for them, can JH and SH deal with this in a way that meets the child's needs?" She then considered the alternative of the child being placed for adoption with a different family. Ultimately her recommendation was that the child should be registered for permanency through the route of a local authority application for a permanence order with permission to place for adoption.

[37] The adoption and permanence panel met on 11 January 2011 (production 22/8). Ms Baker and her team leader, Angela Garcia, outlined the history in respect of the child. Panel members commented on the pressures that had grown around the placement of the child. Ms Baker indicated that the main area of conflict related to contact. It was noted that the child had a complex life. She attended nursery two days a week to enable JH and SH to work. In addition she had contact with her mother twice a week, and also spent overnights on alternative weekends with both maternal and paternal grandparents. Panel members commented that this amount of change of carers was excessive for a young baby, and that the arrangements appeared to be more in response to adult wishes to see the child, than to ensure that the child's primary need for consistency and a limited number of consistent carers was met.

[38] The child's parents joined the meeting. The respondent stated that she had approached JH as a family member to look after the child until she was in a position to look after her herself. A recent letter was the first time that she had heard about the plan for permanency. She had only expected the child to remain with JH and SH until she had time to sort herself out and become able to look after the child. The parents could see that the child had a bond with JH and SH. However the respondent did not wish the child to call JH "mum." She was concerned about J becoming confused if he was calling JH "auntie", while his sister was calling her "mum." She still hoped that the child could be rehabilitated to her care. Her drug use over the previous three months had decreased. She was handing in clean samples and complying with her DTTO. She expressed sadness that it had taken her so long to reach this position.

[39] The father stated that he would rather the child was returned to the respondent's care as "she is a good mum". If that was not possible, then a placement within the family would be his next choice. However this could never be adoption by JH and SH. The child should be placed in the care of KP, the respondent's mother. The respondent would prefer the child to be secured under a section 11 order for a year, to allow her time to stay off drugs and obtain a job so that she could support her children. She thought that it had been unfair that the child was removed from her at birth. She would have wished the child to be by her bedside in hospital until she was able to be discharged. It was explained to her that it is common practice that, immediately after their birth, babies not going home with parents are moved to the neo‑natal unit. She did not agree that looking after the child would be too much for KP. Both the other children were now at school, which meant that KP had nothing to do all day. Although she and the child's father were not living together, they were still close, and discussed matters together.

[40] JH and SH joined the meeting along with the child. JH confirmed that she had been asked by the respondent, whom she had met occasionally, whether she and her husband would be prepared to care for the child. They agreed to do this believing that the situation would normalise and that the child would be returned to her parents care, although they knew that handing the child back would be difficult. They had stated to the social workers that they would care for the child permanently if this became necessary. Once it became clear that their caring for the child would be on a more permanent basis, contact with the respondent and the birth family became difficult. The birth family harboured a sense of resentment against JH and SH, and did not want the child to bond with them. JH and SH understood that the child was to remain in their care. They were very happy to continue with this arrangement. They would do whatever it took to care for the child. The situation with the birth family was not as bad as it had been. SH was in communication with the respondent regarding contact, etc to take the pressure off JH, who was the focus of resentment from the respondent and KP. Neither JH nor SH wanted the child to go to foster carers. They did not want to apply for a section 11 order. JH could not cope with the lack of security involved in such an arrangement. There were many difficulties and tensions around contact arrangements. She and SH would require to know that contact would be reduced. There was a risk of constant challenges to their care of the child. JH said that sometimes she wished that the child could be allowed to just stay at home and settle into a family routine. The child needed stability in her life. JH and SH described the child as "brilliant" and "progressing well". Their teenage sons adored her and were keen for her to remain with the family. She was in good health. She had now become a "central focus" in their family, loved by all of them.

[41] After the parents and JH and SH left the meeting Ms Baker advised the panel that, contrary to the assertions made by the respondent, there had been no significant improvement in her drug use. In November she had come close to being breached for her DTTO. She was still using illegal drugs, and missing appointments or turning up late. Since Christmas she had produced only two clean tests. There were still concerns that the parents may be dealing in drugs as well as using them. That information came from intelligence from the police and the community. It was unclear whether the parents were together. The father had stated that he does not intend to come off drugs. The evidence against the respondent and her capacity to work with plans in her children's best interests was clear. So far as KP was concerned, social workers had concerns regarding her ability to cope with a third grandchild. That was why the child had not been placed with her at birth. KP joined the meeting. She said that the addition of the child to her care would be manageable. With regard to the possibility of the adoption of the child, KP was concerned about the effect on J if contact was at the discretion of JH and SH. She was happy to supervise contact between J and his parents.

[42] The panel considered their recommendation for the child. The child had to be looked at in her own right. J and KP's other grandchild had been left in KP's care for a long time before J's case was considered at panel. By that time he had become embroiled in family relationships and confusions. Nevertheless it had been considered that further checks and assessments were necessary, and also that the local authority had to apply for a parental responsibility order in respect of J. The fact that these procedures had not been followed through did not mean that J's sister should be left "in a similar situation of familial and individual dysfunction and at a much younger age". The child's parents were not in a position to care for her because of their continued use of drugs. The panel was being presented with a plan that a permanence order with authority to adopt should be sought in respect of the child, but, if this was accepted, it was not for that panel that day to recommend by whom the child should be adopted.

[43] The following was agreed:

1.     The parents are not able to parent the child.

2.     The child should not be placed with KP since, despite her current acceptable care of two grandchildren, she has a poor history of successful rearing of her own adolescent children (now adults) and remains subject to difficult pressures from those children. KP is now 50 years of age and is "fully stretched" with the caring role she has within her family.

3.     JH and SH remain an option as adopters.

4.     There is no real improvement in the respondent's drug use, and she has a long history of promising imminent improvement in her capacity to cope with life and parenting, without evidence of any such changes.

5.     The respondent has been imprisoned as a consequence of her drug use, but this did not bring about changes.

6.     Without any sound basis, the respondent continues to suggest to J that his return to her care is imminent. J has had to learn not to rely on what his mother says to him.

7.     The respondent has expressed emotion and regret regarding her failure to improve her lifestyle, and she clearly feels for her children. At the same time she has been unable and unwilling to prioritise her children's needs over her own, and she depends on her mother to carry out the parenting she states she wishes to give.

[44] It was unanimously recommended by the panel that it was in the child's best

long‑term interests to be cared for outwith the immediate family, and that adoption was the preferred option. An urgent review should be undertaken of what had happened in the past within the family along with an exploration of the family dynamics. Section 11 was not a viable option as it did not secure the child's future. The local authority should apply for a permanence order with authority to adopt. It was noted that contact arrangements would be very complex and require careful management to keep the child secure and develop emotionally and cognitively. The issue of overnight contact with the grandparents required to be addressed. It appeared to be an arrangement geared to the needs of the adults in the child's life. Adoption within the family might benefit the child's sense of identity and belonging, but the level of contact with the birth family required careful work and should be reduced. The family would all require to give permission to SH and JH to parent the child both practically and emotionally. It should be made clear to them that a stranger adoption could still be considered as the most appropriate way to secure the child's emotional and developmental wellbeing. Family members required to demonstrate the motivation and understanding that would be necessary to help an adoption in the family to be successful.

[45] In the early part of 2011 Ms Baker was receiving information that the respondent was testing clean for drugs. A case discussion meeting regarding permanence plans took place on 17 March 2011 attended by Mary Smith, Christine Schaffer and Angela Garcia (all more senior social workers). Ms Baker tendered her apologies as, by this time, she was on sick leave. However she had prepared a written summary, which is referred to in the minute of that meeting (production 22/101 pages 32ff). She set out the recent history. She noted that "in the last couple of months the parents have started engaging with drug services, and it is now three months since mother tested positive, and longer for father, although he has some missed tests." Following the panel recommendation, the plan was adoption, but no decision had been taken as to whether SH and JH were the preferred option. Ms Baker posed the question: should they proceed with this as the plan, only considering adoption outside the wider family if an assessment raised concerns? In her view the child's parents would continue to struggle to accept SH and JH as the child's adoptive parents. An adoption assessment of SH and JH would require to consider how they would manage this. She had concerns about the prospect of JH and SH being turned down because of the parents' attitude. Clarity was required. There was a need to review the levels of contact. Furthermore, since the parents had recently made a significant improvement in connection with their drug use, and if they stayed clean between now and a court hearing, it may be difficult to obtain a permanence order. "Is there a point at which we will reconsider a change of plan to rehabilitation? If not, are we confident we can get a permanence order on existing evidence?"

[46] At the case discussion meeting it was decided that the preferred route for permanence was for the child to be adopted by her current carers, pending a satisfactory assessment. It would be necessary to assess JH and SH's capacity to deal with and manage the birth parents, and probably other extended family, if their attitude towards the plan did not change. It was important that the child's maternal grandmother was part of this wider assessment. Contact with the parents and extended family should be significantly reduced. The recommendation to the children's panel (advice hearing) on 28 March was to be that the child should have monthly contact with her parents. As to Ms Baker's query as to parallel planning, the view was taken that any plan to consider placing the child in the permanent care of her parents was not in her best interests. The child had never been cared by them. The family she had known since birth was her present carers. The child needed long‑term security and stability. The agreed plans required to be progressed for her as soon as possible.

[47] Matters then moved towards the panel on 28 March 2011. The social work department prepared a report for that hearing (production 22/59). Ms Baker explained that much of that report was prepared by her before she left on sick leave. Parts of the document had not been updated to reflect the most recent situation, for example the passage regarding ongoing substance misuse at the foot of page 17. Over the page the report wrongly stated: "More recently (the respondent) is on a DTTO II Order. Her attendance has been sporadic and she continues to abuse illicit substances." Information regarding the child's father was not updated. Ms Baker's attention was directed to the report at page 24 and following. Ms Baker had not written this section. (Later evidence indicated that it was completed by Ms Garcia).

[48] Ms Baker's continuing absence from work prevented her attendance at the hearing on 28 March. The panel made a unanimous decision to renew the child's supervision requirement with a condition of residence with her aunt and uncle, with conditions of contact with her parents and grandparents. The panel unanimously agreed that the proposal from the social workers for a permanency planning application for the child should proceed as soon as possible. Contact with her parents was reduced to every two months, as the panel had been informed that, to date, the parents had only attended about 50% of the current contact arrangements. It was not in the child's best interests to be moved back and forth across the country when the contact was not being sustained. The contact with the child's parents was to take place when the child was with her grandmother, to be supervised by or on behalf of the social work department. The child was to have contact with her maternal and paternal grandparents every two months with an overnight stay with each grandparent. The panel also decided to provide advice to the court about the proposed application. That advice included the following: "The panel was informed that the child's birthparents still have a chaotic and unsustainable lifestyle." It was mentioned that the respondent had been on drugs since she was 15 years old, had breached her ASBO on two separate occasions, and had appeared in court recently with regard to seven acts of dishonesty. These were all focussed around her wish to fund her illegal drugs habit. She had breached all previous probation orders. The conclusion was that the child's life:

"would be better, happier and safer with her current carers, who obviously love her, consider her as part of their family, and the child has a stable routine which she thrives on, the child has lived with her current carers all her life."

A good deal of the evidence at the proof concentrated on the inaccuracy of important parts of the report to this panel. Unusually the child's parents had not attended. Nonetheless the panel decided to proceed without them, as it was felt that important decisions needed to be made as to the child's best interests. The panel noted its disappointment that neither parent had attended. In her evidence the respondent said that she had not been informed of this meeting. This is consistent with her regular attendance at other important meetings. In her affidavit Ms Baker stated that, in her absence, information as to the parents improved circumstances was not given to the children's hearing. In her evidence Angela Garcia, Ms Baker's team leader, who was present at the hearing, to an extent contradicted this. However it is clear that the written report presented to the panel was seriously misleading.

[49] On 6 April 2011 the respondent satisfactorily completed her DTTO II. Unsupervised contact with J was introduced that month. On 15 April she lodged an appeal against the decision to reduce supervised contact with the child from twice each week to once every two months. In due course that appeal was conceded by the reporter on the basis that the panel had proceeded upon erroneous information in respect of the operation of contact and the improved circumstances of the child's parents. On 26 April a petition for a permanence order was lodged at Edinburgh Sheriff Court. In her evidence Ms Baker said that the parents were angry that SH and JH had not done more to support their position at the panel hearing on 28 March. Thereafter there was an increase in the tensions between the parents and the child's carers.

[50] Fiona Oxley provided a report dated 16 May 2011 (production 22/11). The respondent had successfully completed her 12 month DTTO. Since the previous report the respondent's level of engagement had "progressively improved" and she had made considerable progress to address her substance misuse. She had consistently tested negative for cocaine and had tested positive for an illicit opiate on only one occasion since November 2010. Latterly she responded well to the available support. She had separated from the child's father in an effort to concentrate upon her own drug recovery, but continued the relationship as a friendship. Towards the end of the order she had presented as "very motivated to use her time constructively." She had significantly reduced the risk of her reoffending by achieving stability on a substitute prescription and demonstrating increased control over her drug use. Towards the end of May the respondent began a 9 week college course, successfully completing it in July 2011. The DTTO II review report (respondent's production 5) is in similarly positive terms. It was noted that the respondent had the opportunity to engage in the voluntary aftercare service and that specialist drug support was available to her.

[51] Ms Baker provided a report dated 24 June 2011 for a children's hearing (production 22/12). It recorded that the child's father's DTTO worker had confirmed that since January he had engaged positively with the service and had only once tested positive for prescribed medication. The father had moved into his own tenancy. JH and SH reported that the child was more settled and happier in her routine since contact was reduced. Although there had been progress in the parents' situation, the local authority remained of the opinion that, given the long standing of their drug problems; the length of time that would be required to demonstrate that they had progressed to the stage where they could satisfactorily parent the child; the child's timeframe; and the fact that she was very settled in her current placement, the plan remained that it was in her best interests to reside with JH and SH. The authority was not of the opinion that contact should be increased.

[52] In her evidence Ms Baker indicated that after the panel's decision in March, SH and JH proved to be resilient and increasingly committed to the child. They argued their case and spoke up at meetings. It had been an excellent placement and Ms Baker had no concerns about it. SH and JH had met all of the child's needs. When asked how they would cope with the wider family, she replied that it would depend upon the conditions of contact. If they could see a change in the parents and grandmother, in other words if they accepted the role of SH and JH, some contact might be possible. SH and JH would prefer no contact unless they saw a material change. She accepted that the child's parents had never done or threatened anything inappropriate in relation to SH and JH or the child.

[53] After the successful appeal against the previous decision in respect of contact, a further children's hearing took place on 5 July 2011. A safeguarder was appointed and the hearing was continued to 18 August. On 18 July the permanence petition called and a diet of debate on the issue of jurisdiction was assigned for 16 August. On 1 August the child's father satisfactorily completed his DTTO II. At the continued children's hearing a decision was taken to continue the hearing, and to report to the sheriff recommending an increase in contact between the child and her parents to once per month. The advice was that the panel supported the application for permanency with her current carers. The child had developed an attachment to them which might be jeopardised should her place of residence be changed. It was unclear whether the improvements in the parents' drug misuse could be maintained. "The timescales involved in determining their ability to provide a home for the child are not practicable considering the child's stage of development." The minutes of the panel are production 22/67.

[54] Production 22/68 is an update for the hearing provided by Ms Baker indicating that she had spoken to the respondent's drug worker who stated that she had missed her last two appointments. There was an indication that she had been unwell. The assessment of JH and SH as prospective adopters had begun and a legal issue was under consideration in relation to the permanency petition. The panel also had the benefit of the safeguarder's report dated 10 August 2011 (production 22/13). The safeguarder reported that, according to the child's parents, their relationship was over, although they remained on amicable terms for the sake of their children. The respondent said that she and the child's father had been kept together by their drug use, and since coming off illicit drugs she found that she and the child's father had nothing in common. Nevertheless they would both wish the child to be in the care of the respondent or of KP, with the father having continuing access. They had their own separate tenancies. They saw each other on Tuesdays and Fridays when they took J out. They also saw each other during contact with the child. They both considered that the reduction in contact with the child had been unnecessary and unjustified. Since the beginning of January contact had been exercised on a regular basis. This was contrary to one of the reasons given by the earlier panel for the decision to reduce contact.

[55] The safeguarder reported that both parents had made significant progress in addressing their drug use. When he visited the respondent she was bright and alert. Her home was clean and tidy, well furnished and in a good state of repair. There was no indication of a chaotic lifestyle. She had volunteered to speak to inmates at Cornton Vale Prison. She had four hours unsupervised contact with J on Fridays. The safeguarder expressed some concern that the respondent appeared not to have engaged with two drug related aftercare services which had been identified by the DTTO agency as "vital" to her rehabilitation. He had concerns about two alleged incidents during a family caravan holiday in late May 2010 involving excessive alcohol consumption by the respondent.

[56] The child's father had successfully completed an 18 month DTTO. Since October 2010 his drug tests had returned consistent negative results although there had been some indications of occasional illicit drug use. There had been no offending. He had made changes to his lifestyle, obtained housing and engaged with rehabilitative measures to occupy his time in a positive fashion. When the safeguarder visited his home it was neat and clean. He was being treated for anxiety and depression for which he was prescribed prozac. He was stable on methadone and valium.

[57] The safeguarder turned to what he called "the bigger picture", and to the child's best interests and long-term care. He noted that the child's parents were both devoted to her and wished to maintain contact with her as her parents. The respondent wanted to have the child in her care. KP would offer herself as the carer for the child, but would support her return to the mother's care. The parents' desire was to have the child progressively rehabilitated into the respondent's care. The view of social work was that a permanency order with authority to adopt would best meet the child's needs. Section 11 would not give her the legal certainty and the secure, stable, long‑term care she needs. SH and JH had looked after the child since she was four days old. She was settled and happy in what she has always known as her home. Her care placement should not be seen as an indefinite holding measure. There remained concerns about the parents' progress in controlling their drug use and whether turning their lives around could be sustained. It would take time to carry out an assessment into the respondent's ability to parent the child. The child's continuous, stable care would be upset, possibly jeopardised for an uncertain alternative.

[58] The safeguarder then expressed his own views. "The child's best interests and her needs for long‑term care could best be met if she were able to remain in the care of her current carers on a permanent basis." Continuing contact with her parents and some of her extended family would also be in the child's best interests if it was conducive to the stability of her care provision and made a positive contribution to her wellbeing within that provision. Despite the progress made by her parents, the child's best interests would be met by arrangements to secure her future "through a stable, permanent care placement...the overriding priority is to move to permanence, outwith her family if necessary." The safeguarder recommended that the current contact arrangements should remain in force.

[59] As stated earlier, in the result the children's hearing recommended an increase in supervised contact to once per month. However, because of the lodging of the permanence petition by the respondents and the operation of sections 95 and 96 of the 2007 Act, the children's hearing was unable to implement that recommendation. On 29 August 2011 the sheriff held that he had no jurisdiction in the petition. The cause was remitted to the Court of Session. On 6 October 2011 a court order increased supervised contact in terms of the panel's recommendation.

[60] In her affidavit Ms Baker indicated that she had no reason to believe that there were any problems with the current contact arrangements. All contact reports were positive in their terms. She stated that the respondent's wellbeing is good, she is looking better and is turning up to everything on time. The respondent considers that she should be rewarded for her progress by having the child back. Ms Baker said that the respondent does not appreciate the child's needs. Her time at college had been productive and beneficial. The respondent had been "back on track" since early 2011.

[61] Ms Baker provided a report for the adoption/permanency panel to be held on 6 December 2011 (production 22/75). She noted that the major issue in the case had been the relationship between the parents and maternal grandparent on the one hand, and JH and SH on the other.

"The main concerns have been around whether parents and grandmother will enable JH and SH to parent the child, and whether the child will become caught up in the ongoing tensions which will impact on her own issues of identity. The assessment of SH and JH has spent a long time looking at this issue and has concluded that SH and JH are able to deal with the issues. ...It is acknowledged that the child's parents have significantly changed their lifestyle and both appear to have been drug free for a year. However it is social work opinion that this change has come too late for the child. ... A rehabilitation plan that might not be successful would disrupt a very settled child."

So far as post adoption contact was concerned, any such contact would require to be supportive of the placement. There were concerns relating to the child's parents and maternal grandmother. Ms Baker would wish contact to be left at the discretion of JH and SH.

"I feel that a gap after the making of the order would be appropriate and would hope that once people came to terms with the decision some degree of contact, maybe on family occasions, could be started. I feel that JH and SH would manage this and would support it as in the child's interests as they would clearly be the ones making the decisions."

[62] The adoption/permanency panel met on 6 December 2011 (production 22/114). Ms Baker attended along with her team leader, then Robert Bayne, and Ms Hurley, the supervising social worker. Ms Hurley had prepared an assessment of SH and JH. Her evidence, given by affidavit, is recorded later in this opinion. SH and JH also attended and answered questions from the panel. The panel concluded that "despite all of the problems in the wider family, the child knows no other family (ie SH and JH) and to move her...for adoption by others would be extremely traumatic." The agency should give the "clear message" that the child will remain in the care of SH and JH, and that, if necessary, other family members will be excluded from direct contact with her unless they prove willing and able to give psychological permission to the child to be parented by SH and JH. The panel agreed that it now appeared that, despite all the many problems surrounding her placement with SH and JH,

"it is now in the child's best interests to be enabled to stay in their care permanently, and not to be moved either to new carers or to her mother, who remains at risk of considerable instability. The child has been a member of SH and JH's family since shortly after her birth and needs to be provided with certainty and security if she is to thrive psychologically over time."

The panel unanimously recommended that SH and JH be approved as prospective adopters for the child, and that they be matched with her for adoption.

[63] In her evidence Ms Baker explained that she was of the opinion that the change in the parents' lifestyle had come too late because once a child has a primary attachment, what advantage is there in her going to a different type of care? After the child is one year of age there are clearly defined attachments. The uncertainty and instability can go on for too long - why disrupt a child who is very settled? The main purpose of post-adoption contact is to maintain the child's sense of identity. Normally after an adoption, contact will be reduced substantially, the priority being to make the placement work, not undermine it. Both parents required to be supportive of the placement. In general, even if it was thought that post adoption contact would work well, the standard level of contact would be two or three times a year. If it was considered that the natural parents would not be supportive, Ms Baker would counsel against post adoption contact.

[64] Towards the end of her evidence in chief Ms Baker spoke more generally about the child's parents. She did not consider that the father could ever parent the child. He does not show insight into the needs of a young child. If the child were to be rehabilitated with the respondent, there would be a need to assess the father in his own right. When asked whether the child's parents might renew their relationship, Ms Baker found it hard to judge. She did not know if they would ever be a couple again. They had their "ups and downs" in the past. If both children were in the care of the respondent, that would be an additional reason for the father returning to the respondent. If the child was with the respondent there would be an issue as to how much one could supervise contact with the father.

[65] So far as the respondent is concerned, the view remains that she is deemed unable to care for the child, all in the context of what is best for the child. Given that the child is so well settled, to outweigh the risk involved in moving the child now, Ms Baker would require to be convinced that the respondent was offering something better. The only advantage she could identify was returning the child to her birth mother. Ms Baker did not discount that, but the child thinks of SH and JH as her parents. She is attached to them as her primary carers. It "could be catastrophic" for the child if, having been removed from them, she then had to return to SH and JH. The respondent is untested as a parent. The child is thriving and doing well with JH and SH. She would still have every chance to grow up knowing about her family. It would be contrary to her best interests to disrupt the current situation.

[66] As to post adoption contact, there had been so much antagonism Ms Baker did not know if it would possible. The parents would require to accept that the child had been adopted and that JH and SH were her parents. Because this was an in‑family adoption, if contact could be made to work, it could be more frequent than two or three times a year. However Ms Baker doubted that the child's father would ever be able to accept the adoption. It was not possible to have a proper conversation with him on the subject. Ms Baker could speak to the respondent. She had the capacity to move on. The important thing now is to support the placement. Contact should be left to the carers' discretion. They understand that the child's birth family is important. If the respondent was unable to accept the new situation, there would be a need to terminate contact as being too undermining. There could be a role for a mediation service. There might be indirect or "letter box" contact with the exchange of photographs, etc, again all at the discretion of the adopters.

[67] Under cross-examination Ms Baker accepted that the contact between the child and the respondent had allowed familiarity and a bond to grow, but not as a primary attachment. She agreed that the quality of contact between child and mother was good. The respondent was very affectionate towards the child. There was a difference between contact and full‑time care. Ms Baker agreed that the original impediment to the respondent looking after the child related to her drug use. Given that there had been such substantial progress on the respondent's part, Ms Baker was asked: is there now a dilemma? Ms Baker was clear that it is in the child's best interests that she stay with SH and JH. She had talked at an early stage about "parallel planning" because she wanted to make sure that the social workers had explored all the options. She accepted that the respondent had exceeded her expectations. Gradually unsupervised contact between the respondent and her son had been allowed to develop, and there is now unsupervised contact overnight between the respondent and J. Things are moving in a positive direction so far as J is concerned. Ms Baker was the social worker for the child, her brother and her two cousins. It had always been difficult to know when the child's parents were separate or together. They tended to come and go in this regard. The respondent seemed to be exasperated that the father did not have the same focus on the return of their daughter.

[68] Ms Baker was asked about the report (production 22/59) presented to the children's hearing on 28 March 2011. She agreed that it should have been accurate. She was not involved in the lodging of the report. She agreed that the parents' desire to prove themselves would have had more to commend it if the panel had been told that they had been free of drugs since the end of 2010. So far as the hearing itself was concerned, Ms Baker accepted that it was very unusual for the parents to be absent. She agreed that it would be influential that the parents had not attended. Inaccurate information had been given suggesting that both parents failed to attend half of the contact sessions. Important parts of the document were "entirely misleading". She could readily understand the parents' distress when contact was reduced so drastically, on the face of it, on the strength of this document. The parents considered that SH and JH should have spoken up for them at the hearing. This generated telephones and texts from both parents to JH and SH. Reference was made to one abusive call from the father recorded at page 28 of production 22/101. The last two review meetings had both been very difficult. The parents were angry at social workers, and angry and antagonistic towards SH and JH. Ms Baker had never heard parents talk to carers in such a way. She had not come across a kinship placement where there was "such a clash."

[69] It was put to Ms Baker that it was an exaggeration to say that those involved could not come together. She disagreed, citing issues such as who is to be called "mum" and "dad". It was not in the child's interests for there to be doubt as to who is making the decisions for her. She agreed that there had never been a parenting assessment carried out in respect of the respondent. Ms Baker could foresee a six month break, and then the possibility of a resumption of a relationship between the child and her parents. JH and SH did not have a fixed plan to move away. It was accepted that J is doing well at school and has a good relationship with his mother. Each week she has two nights unsupervised contact with J, all supported by the social work department. She could foresee that the respondent's involvement with J could become ever greater. Recently the respondent's sister had died quite unexpectedly. Despite her distress, the respondent had not defaulted to drugs, etc.

[70] In Ms Baker's view one cannot allow matters to remain "up in the air" - decisions require to be made now. There would be risks involved in moving the child to the respondent. It might not work out in the long run, and in the meantime the commitment of SH and JH would be damaged. SH and JH would be open to the possibility of meaningful contact post adoption. She is aware of J's needs regarding his younger sister, but in Ms Baker's view those interests are secondary to the need to support the child's placement and provide her with a stable and secure upbringing.

[71] That said, there does not require to be a complete breakdown in the sibling relationship. JH and SH are sympathetic to ongoing contact with J. The placement should be the first concern, and then, if possible, contact can be arranged around it. Ms Baker accepted that if the respondent became pregnant again, there would be a parenting assessment carried out with a view to the child remaining in her care. She agreed that it appears that, when drug free, the respondent is a competent person.

Maria Angela Garcia Morales (known as Angela Garcia)

[72] Ms Garcia gave evidence and provided an affidavit. She is a reviewing officer with education and children services with the petitioners. She first became involved with the child's case a few months before her birth. She was Katie Baker's team leader and supervisor. She has not had any involvement with the child's case since the end of May 2011, when another social worker took over line managerial responsibility for the case. Much of Ms Garcia's evidence confirmed the evidence given by Katie Baker. Looking after the child would be too much for the respondent's mother, given the responsibility she had for two of her grandsons. Section 11 procedure was an option which had been discussed, however Ms Garcia's view was that it would be compromising for the carers. Conflicts emerged from an early stage, for example, disputes regarding contact, and who was to be referred to as "mum and dad". The child required security and stability. This would not be promoted by the carers sharing parental rights with the natural parents. The preferred route was for permanence with SH and JH.

[73] Much of Ms Garcia's evidence was taken up with the report for the children's hearing on 28 March 2011 - production 22/59. She had little time to prepare the report. Ms Baker was on sick leave. Ms Garcia adopted the historical situation provided in previous reports and added a short update at the end. She was responsible for the section headed "Summary of Analysis of Key Issues; Strengths and Concerns." Ms Garcia attended on 28 March. It was a long and difficult hearing. She told the panel that the news was that there had been a slight improvement in the respondent's situation.

[74] Under cross-examination she indicated that Ms Baker had told her that the respondent had improved and made changes regarding her drug use. She had started to give clean samples. She had managed this many times before. Ms Baker had told her of a significant change in the respondent's drug habits, and asked her to consider what, if anything, that might mean for the future plans regarding the child. The decision taken in that regard was not Ms Garcia's decision. It was taken by more senior managers. The new information concerning the respondent was not "significant", in the sense that it did not result in social work reconsidering its plans for the child.

[75] Ms Garcia accepted that there were obvious pitfalls in using historical material when preparing a new report for a new panel. The report should have been accurate and up to date. The passage at page 18 concerning the respondent's continuing abuse of illicit substances was historic. It should have been deleted. However the current situation was discussed at the panel. Its members were told that there had been an improvement. The panel was told that the respondent had been providing clean samples. It was recommended that contact with the parents should be reduced to once a month. At the time there was no certainty or confidence that the improvement would be sustained in the long‑term, thus the plan remained for a permanent placement with JH and SH. Ms Garcia presented this plan to the panel. She accepted that it would have been better if the natural parents had attended. Had she not been on sick leave, Ms Baker would have represented the social work department at the meeting. At the time Ms Garcia was under pressure because of Ms Baker's absence from the department.

Karen Chinnadorai
[76] Karen Chinnadorai is a community mental health nurse with the substance misuse centre. She has known the respondent since August 2009. She spoke to her report (production 22/71), which was prepared in November 2011. When the respondent became pregnant there was concern for the unborn child. It was better to be stable on prescription than on street drugs. In early 2010 the respondent's lifestyle was chaotic. Ms Chinnadorai's view was that, once born, the child should not return home with the respondent.

[77] By June 2011 there was a change in the respondent's circumstances. She had been on a DTTO. She was doing "really well" with clear tests. She looked well. By November 2011 she was stable on methadone. When asked as to the position since then, Ms Chinnadorai explained that it was difficult to say. The respondent had missed appointments in December and January. She had not been tested over this period and Ms Chinnadorai had not seen the respondent. She was still reducing the amount of methadone.

[78] Ms Chinnadorai was asked about the prospects for continued abstinence. She explained that it is a relapsing condition. The loss of the respondent's sister was a high risk time, however she did not relapse. Much will depend upon with whom she associates, and life events. Some people have been on methadone for many years, though now there is "more of a push to get people off it." No explanation had been received for the missed appointments. The service expects people to attend once a month. The respondent commenced on 120mls of methadone. She is now receiving 70mls daily. Her diazepam usage remains the same.

Philippa Hurley
[79] A number of affidavits were lodged from people who did not give oral evidence. The only one referred to by counsel for the petitioners in her submissions, and the only one which adds anything of substance to the oral evidence, is that of Philippa Hurley. She is an adoption assessor within a family placement team. She was requested to undertake an adoption assessment in respect of SH and JH. This began in July 2011 and concluded with the decision of the adoption/permanency panel on 6 December 2011. This is a kinship adoption process, and Ms Hurley notes that the situation is complicated. The relationship which SH and JH have with their extended family is strained. The carers have many strengths. They are very child centred and aware of all risks. They have overcome a large amount of adversity and "backlash" from the family. They have proved themselves capable of acting as parents for the child, who is now part of their family. Ms Hurley had about 10 meetings with SH and JH. Their overall parenting capacity and understanding of the child's needs and development impressed Ms Hurley.

[80] Ms Hurley met with SH's parents. They are very supportive of the plan to adopt the child. JH's parents are understanding, but find the whole process difficult because of the conflict within the family. Ms Hurley did not obtain the opportunity to meet with KP. She tried to meet with the child's father, but with no success. She could not speak with the respondent. Her conclusions were that SH and JH are meeting the child's needs. They are a very strong couple. There are sensitive areas around family contact and much conflict. Ms Hurley recommended that the adoption process should proceed.

[81] With regard to contact Ms Hurley believes that this is very confusing and not ideal for the child. Her report recommends no direct post adoption contact. It is difficult to maintain contact when the child's natural parents are contentious towards JH and SH. JH and SH indicated that the child is very unsettled after contact. Ms Hurley's assessment and report is production 22/115.

Lay evidence
JH

[82] JH was so nervous she was almost unable to give her evidence. The whole experience was obviously a very considerable ordeal for her. She explained that her parents live in Midlothian. The child's father is her younger brother. As his troubles developed she saw him less and less. She learned of the respondent's pregnancy in about Christmas 2009. The respondent phoned, asking if she and her husband would take the baby, otherwise the baby would be taken into care. The respondent said that no one in her family could take the child. JH realised that this was do to with drugs. She spoke to her husband and her sons. They decided to say yes. She thought that the parents would conquer their problems and have the baby back in about six months.

[83] After the child was born and came to live with them, she had contact with her parents twice a week. This was not a success. They were still taking drugs. They would come late, sometimes very late. They were phoning late at night. Things were easier when contact was moved to the contact centre. The parents gave mixed messages, sometimes saying that they were doing a good job, and then telling them not to become too attached to the child. By early 2011 JH's husband was dealing with the phone calls and texts. JH did not want the child to be placed outside the family. She was settled, and they could care for her.

[84] After the March 2011 children's hearing, the parents said that JH and SH should have "fought for them" over contact. JH said that she did tell the panel that she considered that once every two months was insufficient. JH described the meetings and reviews as "horrible". She would say what she felt she had to say, and then keep quiet. One minute the child's parents were fine, the next they were "nasty." When the messages came, "it really hurt." She last communicated with her brother at a panel meeting, perhaps in August 2011, when he was "in my face". JH explained that her parents were in a difficult position, however they want what is best for the child. When asked about the prospects for repairing the relationship with her brother, she replied, "none."

[85] J did not come to JH's house very often. JH did not have a relationship with the respondent's mother, although they used to talk on the phone. She felt she had to watch her back. If they became the child's adoptive parents, they would always be honest with her. She would like there to be some form of contact. "It is her identity - her life." There may be a prospect of an improvement in relations. She would like the child to see KP and J, and maybe even her parents. Letter box contact would be good. JH confirmed that the child is very happy and settled.

[86] Under cross-examination JH indicated that she first met the respondent when the respondent was pregnant with the child. She denied that she had met the respondent many times before that. The respondent was "probably scared of me - hiding - because of the conflict with my parents." JH saw J two or three times a year. JH vehemently denied that she was friendly with the respondent and her brother before 2010. She hardly had a relationship with her own brother, and none with the respondent.

[87] It was put to JH that she had heard through family channels that KP was not to be considered as a carer for the child and that she, JH, phoned the respondent to offer her services in order to keep the child in the family. JH denied this. She accepted that the respondent indicated that she would have the baby back within six months. The respondent never said that she did not want to have the baby back.

[88] JH agreed that a family conference in August 2010 was a positive occasion. It was good to talk about things and there was general agreement as to a way forward. The person who was supervising contact at the contact centre was not helpful, and seemed to be playing them off against each other. It was put to JH that the respondent had made considerable progress in respect of her previous problems. She agreed. She had heard that the respondent had separated from the child's father. When asked whether this was a good thing - she replied - "I do not know - they do seem to love each other". In about autumn 2010 social workers asked whether JH would consider adoption. After about six months it had dawned on her that the child may not be returning to her parents, "so I just got on with it". If the child was not returning to her parents then "of course" she could stay with JH and SH. "She has a home with us as long as she needs it."

[89] JH was asked if she would work with the respondent, social workers, and mediation service if the court decided that was for the best? JH indicated that she would "rather not work with the child's mum". She could not handle the phone calls and the texts - "it used to be constant."

SH
[90] In contrast to his wife, SH was relatively relaxed and confident when giving evidence. They occasionally saw the child's father if they went to his wife's parents. At the start he had no real knowledge of the respondent. He first met her at his wife's parents' house when she was pregnant with the child. He knew that they were both heroin addicts. His wife said that she had been approached by the respondent regarding potential care of the child. Otherwise the baby would be removed from the family. After he had thought about it, SH was in full agreement with his wife that they should take care of the child. Initially he assumed that it would be short‑term, as he was led to believe by the child's parents that they would overcome their problems. After the child came to live with him and his wife, there was contact with the parents but it was strained. In particular there was animosity from his wife's brother, who resented that they had his child. There was a lot of animosity towards him and his wife.

[91] The child's parents felt that they could come and go as they pleased. Even after contact took place outwith their home, there was still animosity. There were reverse charge phone calls in the middle of the night. There were snide comments coming back from the visits. Meetings at the social work offices were awkward. His wife received blame, as if it was all her fault. She was very stressed by the whole situation. "A lot of bridges have been burnt." When asked if it would be possible to re-build the relationships, SH's response was that "too many things had been said." The respondent even told him that she wished she had put the child into care.

[92] The child has become part of SH's family. Now he cannot imagine life without her. They have built their lives around her. The child has been with them since she was born. She knows them as her family and her home, and she should stay with them. The process of the assessment of them as prospective adopters had been long and drawn out. There is not much contact now with the child's parents, therefore it does not affect them to the same extent. Asked about post adoption contact, SH said that it would be confusing and disruptive for the child. Nonetheless they would explain her birth family to her as she matured. As to J, SH believed that it would positive for the child to see him, so long as it was not disruptive. J was told things by his parents and grandmother which he then conveyed to the child.

[93] Under cross-examination SH denied that he had met the respondent before Christmas 2009. On two previous occasions, when they had been in the same house, the respondent had run straight upstairs. It was the respondent who phoned his wife to ask her if she would take the child. In SH's opinion, the key issue is not about what other people want or feel, but about the child's best interests. However, much had been directed at his wife. It was difficult to put into words all that his wife had to put up with. It was very unfair and he "found it hard to be amicable with these people, the way his wife had been treated." When they met face to face there was a lot of aggravation. They gave the impression that his wife had "stolen their baby." The big issue is the respondent's inability to accept that they are parenting her child. She is resentful towards JH. The child calling them "mum and dad" is a difficult issue. SH accepted that on one occasion the family came together and, for a time, had managed to clear the air.

[94] So far as J is concerned, SH indicated that in an ideal world the child and her brother would see each other regularly. The problem is that J says to the child, "you should come home with me and stay with mum and dad". SH sees no value in maintaining the link between the child and the respondent. The child will be told everything when she is sufficiently mature. If the child wanted to see her parents that would be addressed. He will answer her questions. There will be no secrets. The child will be told everything once she is able to understand it. SH confirmed that he will do all that the child's best interests require.

[95] In re-examination, in respect of the family meeting, SH indicated that, for a month or so thereafter, things were better. After the permanency panel in January 2011, the situation became much as it is now. At meetings the child's father launched personal attacks on his wife.

The respondent

[96] The respondent is 26 years of age. She has lived in a council house in Midlothian for three years. The first six months were shared with the child's father. After the DTTO she studied computer skills at a transition project. She participated in a beauty therapy course at college. Once she got into the routine her attendance improved. She is looking for paid work but voluntary work in a charity shop keeps her busy. She is allowed to organise the shop and attend the till on her own. The fact that someone has trusted her has given her confidence. She has been told that she is a "people person."

[97] The respondent met the child's father when 17 years old. He was 32 at the time, and involved with drugs. She could not blame everything upon him, but when they broke up about nine months ago, her life began to go somewhere. He had said that he was too old to change his life. She had to pick either him or the children. Towards the end of 2010 she decided to change her life. Previously she had been consistently involved with drugs and the child's father. She was shoplifting to fund the habit. When J was removed from her, his father had been violent towards her. The police were called. J was taken to her mother. At present J is allowed to stay with her two nights a week. Until March 2011 she was not allowed J on her own. Since November 2010 she has not been under the influence of drugs. She is involved with J's education. She goes to his Christmas plays, sports days, etc. She is stable on her methadone prescription.

[98] When she was pregnant with the child, she found it very hard to come off drugs. She had been abusing drugs for 7 years. She asked her social worker about the options with regard to the child. She wanted her mother to look after the child, but the social workers did not approve. Her mother had a lot on her hands. The child's father had been talking to JH and SH, and JH phoned her. She asked if she could come to one of the meetings to put her name forward regarding the child. At first the respondent was grateful to her. She would fight to keep the baby in the family. It was JH who phoned the respondent to make this offer. The respondent passed her name to the social work department and she was invited to a meeting.

[99] The respondent stated in evidence that, at the time, she knew JH and SH very well. She had met them lots of times. J used to go to his father's parents. J had previously stayed overnight with SH and JH. She did not understand why they were now saying that they did not know her before she was pregnant with the child. She had been with JH's brother for some 8 years and there were gatherings at birthdays, etc. She got on well with JH.

[100] The respondent was told by her social worker that the child would be with JH for around six months until it was decided what would happen. She was receiving mixed messages from the social workers, sometimes to the effect that the child would never return to her care, and then from others that there was a possibility of rehabilitation. She knew that she would require to be clear of drugs and demonstrate that she could look after herself and the child. However she was unable to make any progress on this until the end of 2010. After the birth, the child was not allowed at her bedside. There was no bonding whatsoever. She took heroin to blank it all out. In early 2011 she had renewed hope that she would recover care of her child. Whilst she had been clear of drugs before, she felt that it was different this time. She wanted to do it for herself. Before she had tried to do it for J, and it never worked.

[101] As to the children's hearing on 28 March 2011, she had not been invited. She always went to such meetings. She was shocked and devastated when informed that her contact with the child had been reduced. She saw the report which had been given to the panel. It was "all lies", stating that her life was chaotic. This was not true in March 2011.

[102] The contact at the home of SH and JH after the child's birth lasted for just over one week, then JH stopped the contact. They were ten minutes late because of difficulties in finding the house. SH and JH did not trust them to sit with the child. That was hurtful. On the second visit they asked to take the child for a walk. JH said that she was not "walking the streets with a junkie." The third contact did not go well. The respondent wanted to cuddle the child, but JH refused. The atmosphere in the house was different. Contact was easier at the contact centre. The respondent did not understand the concerns of JH and SH about texts and phone calls. The children's panel had told her to phone four times a day to check on the child's welfare. She did not call late at night. The child's father never called when the respondent was in his company.

[103] The respondent separated from the child's father in about August 2010 when he said he felt too old to change his life. The respondent wanted to gain custody of her children. The child's father did not want his life being "tied down with kids - that was a fundamental disagreement." There were many occasions when the child's father did not attend contact sessions with the respondent. On occasions, if there was a delay with the trains, the respondent would be late.

[104] The respondent said that J "adores" his sister. He tells his sister how much he misses her. He talks to everyone about her. If the respondent tells him that she might not come back, he becomes angry and misbehaves. The tensions were mainly between the child's father and JH. After a family meeting, which took place when the child was about three months old, JH said that they would get through this, but thereafter things became worse.

[105] The respondent did not have any issues with JH and SH. The child was always presented well for contact sessions, wearing the clothes that the respondent had sent her. When she spoke to JH on the phone they would talk about the child and how she was doing. The respondent was surprised when JH said that SH would take over the responsibility for communications between them. She has no understanding of suggestions of "conflict" or "antagonism". She has thanked JH and SH for what have they are doing and has offered them money, which they have refused. She was present during their evidence in court and was shocked by it. She did not think that JH could, or would work towards good contact. Rather she simply wants to settle down with the child, and have no contact between the child and her birth parents. The respondent said that she has a brilliant relationship with her daughter. There is a bond and the child "loves her to pieces." She runs after the respondent calling her "mummy". She puts up her arms and asks the respondent to pick her up.

[106] The respondent anticipates no difficulties in the child transferring her attachment from JH and SH to herself. She would allow JH and SH to take the child for weekends. She accepted that rehabilitation would take time, and she thought she could work with JH and SH to achieve this. She acknowledged that JH and SH are giving the child what she needs, but she is confident that she can do the same. The only difference is that she would be a single parent. She will never go back on drugs. She is certain that she will not relapse after this length of time. She spoke of the shock of the sudden death of her sister in September last year. Her sister had a history of drug abuse. The respondent wants to come off prescribed methadone. She does not want to rely upon medication. Her dose is now down to 65mls. She has no fears about coming off methadone.

[107] J stays with the respondent on weekday nights after school. She feeds him and returns him to school on time. The future regarding J is up to her mother. She acknowledges that the social workers still have concerns about the rehabilitation of J to her care. She will take part in any parenting assessment which might be required. She is concerned that the child may lose contact with her wider family. The child knows that she is her mother. In the respondent's view every child should stay with their natural mother. She has resolved her problems. She "knows" that she will not return to her previous lifestyle. Previously she has only been clear of illicit drugs for a maximum of 3 months. She has separated from the child's father.

[108] Under cross-examination the respondent accepted that the social work records state that it was she who approached JH and SH to look after the child. She received mixed messages from social workers and panel members, who said that there were "always options". She sees the child's father every Sunday. He is still clear from drugs and is looking much better. She denied that she would ever have said anything negative about JH. She has not been angry with JH and SH regarding the reduction in contact - it was not their fault. She has not been critical of them. She denied being jealous of JH and SH and of harbouring resentment. It was put to her that she had seen how upset JH was in the witness box as a result of hostility. She was shocked when she saw JH shaking and crying in the witness box. She denied that there was any hostility towards her. It was put to her that she had made a comment to Dr Edward (whose evidence is recorded later in this opinion) that JH "has an evil streak". She accepted that she had said that. She stated that at the outset JH had been "lovely" to her, but "then it all stopped". She wonders why JH is doing all of this. She denied that after the panel decision in March 2011 JH and SH received critical phone calls and texts. She denied that her family was in the habit of falling out with people.

[109] The respondent stressed that any rehabilitation of the child to her care would be done gradually to minimise the risks to the child. As to the child's father, she would not allow him to see the child whenever he wanted. She would make sure that she was present when the child saw her father, so that she could be certain that the child was safe. She did not understand why JH had stopped communicating with her. She did not accept that her communications with JH had been too frequent. On the contrary she ought to have phoned more often. The respondent denied that she had been resentful towards and jealous of JH, making her the focus of her criticism.

[110] In re-examination the respondent indicated that J's father only has contact with J when she is there to provide supervision. She did not consider that J should be on his own with his father. She did not anticipate any difficulty in managing contact between the child and her father in the future.

KP

[111] The respondent's mother gave evidence. The respondent was 17 years of age when she met the child's father. He was older. It was not a good relationship. Her daughter became involved with drugs and could no longer care for J. J came to live with her, and she supervised contact with the respondent. When her daughter became pregnant again, she offered to take the child. She thought she could manage, given that the two boys in her care were at school. She was disappointed that the social work department took the view that this was not an option. KP considers that her general health is good. She spoke of a family meeting in 2008 concerning J. Other family members attended, including JH. That was when KP first met JH. The respondent and J's father were also present.

[112] KP stated that "JH put her name down for the baby". After the child went to stay with JH and SH, KP visited. While the visit was generally friendly, she felt that SH was watching them. This created tension. She felt as if she was being supervised. To give JH and SH some respite, the child would come to KP's house. She mentioned to Katie Baker that she felt that she was being watched or supervised by SH, something which did upset her. JH did not want the child to be disturbed when she was sleeping. KP denied that she had ever said anything offensive to JH and SH - "I just told the truth". Her telling the truth "caused them a bit of upset". There came a time when JH did not want to be in the same house as KP. KP was puzzled by this.

[113] KP has no difficulty with the child being in her house. The respondent has two hours contact with the child. KP has seen a big difference in the respondent, who is now allowed to have unsupervised contact with J. She had "sorted herself out". KP has no concerns about a possible relapse. The child's mother has been off drugs for too long. She is "coming off her methadone". The family are all proud of her. She saw no difficulties arising from the attachment of the child to JH and SH.

[114] Under cross-examination KP denied that, since she realised that adoption was a possibility, her attitude towards JH had changed. It was put to her that there were ruptures in her own family, for example, she did not see the daughter of another of her children. KP indicated that she was seeing a solicitor about this. She accepted that she had fallen out with the father of the respondent's child.

[115] After her evidence was concluded, counsel for the respondent made a motion for KP's recall, which I granted. She referred to a meeting of 28 November 2008 concerning a family plan for J. This was the meeting which she had spoken about during her earlier evidence. She was asked how it came about that JH and SH were present. All the family came together to provide support for J. Everybody met everyone else. KP agreed with the proposition that, at the meeting, she had it in her mind that the respondent had already met JH. JH said that she would take J to her house if he could stay overnight, but KP would not allow an overnight visit. JH offered to help, and subsequently this involved J's paternal grandparents taking him to JH's house. On one occasion J's father's parents came to KP's house. This was about four weeks after the meeting. The respondent and J's father were present. On three to four occasions the grandparents collected J at KP's house, and the respondent would go with them when they left KP's home. In summary, KP was of the view that the respondent had met JH long before she became pregnant with the child.

AP
[116] The respondent's younger sister, AP, gave evidence. She lives with KP. She is a support worker in a nursery. She hopes to become a nursery nurse, and is presently attending college on Tuesday evenings. She described J as boisterous, cheeky, lovely and happy. He loves his mother. His mother dotes on him. She has come a long way from her previous lifestyle. She "wants to be there" for J and S, to prove that she can be the best mother. J has always had a strong bond with his mother. AP sees the respondent often.

[117] The child visits KP's house once a month. She is lovely and looks like J. J loves his little sister. She can say J's name. She has heard the child call the respondent "mum" - or at least it sounded like "mum". The child interacts well with her mother. The respondent is very motherly and has always had that instinct. AP has no concerns with regard to the respondent caring for the child and J. She is a different person now - more determined and motivated.

[118] The respondent was a big support for her mother following on the death of the respondent's sister. There is no indication that she will revert to drugs. It would have an impact on J if he did not see his sister. It would be "heartbreaking". As to the situation between JH and SH and the respondent, AP acknowledged that it had been difficult. There is "negativity" around it. AP visited JH and SH's house a week after the child was born. There was "a lot of negativity". They sat in the living room and AP did not hold the child. She felt as if she was being constantly watched. There was "not a nice atmosphere". Overall - "it's been strained - hard for everyone". The respondent would contact JH to see how the child was, and not receive a reply. "It has become more difficult".

Mrs Susan McIntosh

[119] Mrs McIntosh is the head teacher of J's primary school. She said that J is a "lovely wee boy who is keen to please". He is hard working, polite and very popular. The respondent has involved herself with J, especially regarding his schooling, as opposed to his time at nursery. In the first instance KP deals with the school, but more recently there has been more interaction with the respondent. The respondent comes to plays, parents nights, etc at the school with J and KP. They all seem close and friendly. J talks of his sister all the time. He is delighted with her, and discusses her with the class teacher. This is a "very positive aspect of his life". Mrs McIntosh has met the child twice. She confirmed that recently the respondent has looked much healthier and happier.

Doctor Katherine Edward MA, PhD., DClin, CPsychol.
[120] After completing a doctorate in clinical psychology, Dr Edward served for two years as a clinical psychologist with Fife Primary Care Trust, within the child and adolescent clinical psychology service. Thereafter she spent seven years as a member of the fostering panel (assessing and reviewing foster carers), and more recently acted as panel chair. She is currently engaged in independent chartered clinical psychology work in a variety of settings, including assessment and therapeutic work with children, adolescents and adults with a wide variety of psychological presentations. She has completed more than 150 medico-legal assessments and reports addressing psychological issues. She has been called to give evidence in court on over 20 occasions. She is a member of the British Psychological Society. She is registered with the Health Professions Council and is a member of a number of professional psychological organisations.

[121] In late November 2011 Dr Edward was jointly instructed by agents on behalf of the petitioners and the respondent to provide an assessment in relation to the care situation for the child. She was asked to respond to certain specific questions. Dr Edward's report has been produced (production 22/116). The report followed upon an interview with Katie Baker, JH and the respondent. She also observed contact between the respondent and the child, and obtained information from the social work department file and other legal documentation associated with the case.

[122] Dr Edward's report begins with her observation of contact between the respondent and the child at KP's house. It was a positive occasion with the child interacting happily with her mother and brother. Dr Edward then gives an account of her meeting with Katie Baker, when Ms Baker explained the full history. Amongst other things Ms Baker described

"a number of very difficult family interactions between the respondent, KP, siblings and the wider family. She described considerable conflict and arguments, and notably unstable relationships. She also explained that the respondent's sister had sadly recently died, possibly due to drugs, and her brother is on remand for murder. There are clearly significant issues with regard to her sister's children, one of whom is also cared for by KP, and one who is cared for by her paternal grandmother. Contact with this child is a source of considerable difficulty".

[123] Ms Baker explained to Dr Edward that it is likely that there will be a section 11 order granted to KP in relation to J and the other grandson in her care. She may eventually wish to return J to the respondent's care, although, at present, the social work department would be opposed to that. With regard to the child involved in the present action, she "is in a very different situation". The family cannot co-operate nor support the child's placement with JH and SH. There are issues about the conflict in the family around the care situation for the child, and the lack of recognition for JH and SH's roles. At times they have been the subject of abuse. An adoption panel recently decided that, despite the progress made by the respondent in improving her health and lifestyle, the adoption should proceed. The child's father remains 'uncontrollable' during meetings, and very negative towards his sister JH. It is thought that the respondent does not comprehend the bond the child has developed with JH and SH.

[124] Dr Edward's report records that the social work department's view is that this is "a dysfunctional family unit" and that the larger family picture must be part of any assessment. At present the child's father is not welcome within KP's house. So far the child has had a stable and high quality placement. Rehabilitation to the respondent would involve moving the child to an environment which is, at best, unstable and dysfunctional. JH and SH have always prioritised the child's needs and have provided her with a very high level of care.

[125] As to post adoption contact, the recent adoption panel decided against direct contact. A court order awarding the respondent direct contact would not be in the child's best interests. The placement would be undermined by the lack of acceptance of JH and SH as carers by the wider family. Ms Baker's view is that discretion regarding direct contact should be left to JH and SH, who are aware of the possible benefits of contact for the child, and will be able to manage and assess relationships as time moved on. This would also prevent the child's parents coming to the view that contact is a right, and encourage them to accept the role that JH and SH were playing. Despite all that has happened, JH and SH remain supportive of the concept of direct contact between the child and KP and J, but, in Ms Baker's view, they will require to be able to exercise some degree of control over contact.

[126] If the respondent became pregnant again, Ms Baker would be thinking in terms of a full parenting assessment carried out by the social work department in the hope that the respondent would be able to care for the child. At present the question is not so much the respondent's ability to parent a child, although concerns did remain as to the stability of her relationship with drugs. The key issue concerns the best interests of the child, and whether they would be promoted by a move from JH and SH to the respondent. If the child did return to the respondent

"there would be little hope that a relationship between her and JH and SH would be nurtured, or even referred to in a positive manner, and this could obviously be very damaging for the child".

[127] Dr Edward's report recounts her meeting with JH at JH's home. JH made it clear that they only considered taking care of the child because they were specifically asked to do so by her parents, otherwise their baby would have gone into care. JH warned that at meetings the respondent would insist that it was JH and SH who asked to take care of the child. It was a big decision to take the baby into their home. They had significant support from SH's family and their friends. The child has everything that she needs in their family, and they are delighted with the way she has settled into nursery. Nursery was necessary because both SH and JH work. They structure their commitments so that they each have a day off per week, however they have found that the child is extremely happy at the nursery.

[128] JH told Dr Edward that she hardly knew the respondent before she was contacted about her unborn child. From the outset contact was unreliable. The child's parents arrived whenever they liked. At first they seemed grateful that JH was caring for their child, "but it swiftly changed". JH had to change her mobile phone because of the level of difficult texts and phone messages from the respondent. More recently the respondent's attendance for contact has improved.

[129] As to post adoption contact, Dr Edward's report records that JH stated that she would want there to be contact between the child and J. If a social worker were to work with J and explain what he should not say, for example because it would hurt the child, then he would be able to manage it. The child's needs have to come first. JH became emotional when talking about the situation concerning J, and expressed considerable sympathy for him. With regard to KP, she finds matters difficult. KP can be very negative to her. There is "real antagonism" towards her now, and not just within her role as the child's carer. The child's parents had said that they would rather someone outside of the family was adopting the child. JH finds this exceptionally hard to understand. However, if the adoption proceeds, contact would be easier if it were left to their discretion. JH considers that she needs some level of control over the situation. To date they have never had any control. They would need it in order to safeguard the child. JH indicated that she would be very pleased if J could come over and visit the child with JH's parents. She is concerned that the reality is that the child's parents will never accept her role in the child's life, and as such "contact would simply be too difficult". The child needs to know that she is safe and secure. Contact with the child's parents would not allow that. However, it is very hard for JH to think about the child growing up without any contact with J. The outcome of the recent adoption panel was a huge relief for her. Before then JH had been made to feel as if she was the child's babysitter. She is doubtful as to whether anyone can be certain that the respondent will remain free of drugs. The child is very much a focal point of their family. JH's sons are devoted to her.

[130] During Dr Edward's visit, the child was observed responding very positively to all interactions with JH. There was "very good attunement" between JH and the child.

"A significantly high level of positive, affectionate behaviour was displayed on both sides, which were highly suggestive of a positive and secure attachment. JH spoke about how much she loves the child, although I would state that this was apparent both with interaction and the manner in which JH spoke of the situation".

[131] Dr Edward's report records a meeting with the respondent in early January 2012. It was arranged that this would take place at the respondent's house, but when Dr Edward arrived no one was home. It was subsequently arranged that Dr Edward would meet with the respondent and observe her contact with the child at a social work department office. This took place in a small room, which had little in the way of appropriate play material, and was not designed for the purpose. The child appeared content in the company of the respondent, who did well to keep her occupied. Throughout the child seemed comfortable with physical contact with the respondent. The respondent changed the child's nappy and distracted her appropriately during this procedure. In general it was a positive contact session, notwithstanding the inappropriate and sparsely equipped environment.

[132] After the child left, Dr Edward had a discussion with the respondent, though the available time was cut short by the respondent's need to collect J from school. Nonetheless Dr Edward considered that the discussion covered all the main issues. The respondent indicated that she cannot understand why the child has not come back to her, given that she has extensive contact with J, including unsupervised overnight contact. The best thing for the child would be to be with her mother. The respondent stated that it was JH who asked if she could care for the child. Contrary to the opinion expressed by JH, the respondent felt that she did know JH reasonably well before this issue arose. She had been going out with her brother for 8 years. Whilst the child was receiving good care, the respondent was of the view that the child should spend less time in a nursery.

[133] In her report, Dr Edward records that, on being asked about her relationship with JH, the respondent stated that they do not talk now as JH does not respond to her telephone messages. At the initial contact sessions they wanted to take the child out of the house, but JH refused permission. The respondent told Dr Edward that she will fight for as long as she can against the child being placed with JH. According to the respondent, JH has "admitted that she is never there" and that it is mainly SH who is with the child. The respondent is concerned that, post adoption, JH would "cut the rest of the family out of her life". "JH can seem so nice, but she has a really evil streak in her". JH just wants to keep the child. JH was "jumping up and down" when she heard that she was getting the child. The respondent said that JH would make it very difficult for her to have contact with her baby. She was concerned that JH would not allow contact between the child and J. There were no valid reasons for the social work department's views about her caring for the child, particularly since they have "given her J". J wants the family to be together. According to the respondent, the social work department have "got it in for her", although they have kept her informed.

[134] In her report Dr Edward then sets out the background from the papers that had been provided to her. This background has been set out at length earlier in this opinion. Dr Edward notes that the adoption panel on 6 December 2011 explored all the relevant issues around the care situation for the child, and met with the parties. The conclusion was that JH and SH should be approved as permanent adopters, and, so far as ongoing contact is concerned, if the child's placement with JH and SH could not be supported, contact would require to be restricted or stopped.

[135] Dr Edward then addresses the specific questions raised with her. The first was - "Would it be seriously detrimental to the child to reside with the respondent"? She notes the concerns which have been expressed regarding the respondent's ability to provide stable care for her own children. These concerns have existed since before J was placed into the care of his grandmother. J remains in the care of his grandmother. Dr Edward notes that the respondent has made positive changes in her life; changes which are acknowledged by all parties. Nonetheless

"significant concerns appear to remain on the part of the social work department and the child's carers as to whether the respondent could provide stable and quality ongoing care throughout her childhood".

Observation of contact between the respondent and the child did not raise any concerns about her "in situ" ability to respond to the child's needs and interact appropriately with her during those periods.

"However, it is the wider context of the child's situation that causes more concern. There does appear to be evidence that the respondent's family situation is not fully functional and would not be able to prioritise the child's needs. Primarily, the obvious antagonism towards JH and SH since they took on the care of the child would appear to suggest that there is a lack of insight into the child's needs, and a lack of ability to prioritise those over the emotions of the adults within the respondent's family. Historical concerns about the respondent's contact with the child also suggests that, should her current lifestyle become less stable, as has happened in the past, she is likely to show considerable difficulty in responding to the needs of her child".

[136] Given the respondent's recent positive progress, Dr Edward does not suggest that there is firm evidence that returning the child to her mother would be seriously detrimental to her as such; however, Dr Edward states that there remain clear concerns in relation to the family dynamics, past history and ability to acknowledge and respond to the attachment the child has built with her carers , such that returning the child to the care of the respondent "could" be seriously detrimental to her.

"In addition, one must consider the significant issue of the impact on the child of her removal from the care of JH and SH".

Dr Edward was then asked the following questions:

"Would it be in the best interests of the child for there to be an attempt at rehabilitating the child into the care of the respondent? If not, why not? If so, how should that attempt to rehabilitate be approached in the best interests of the child"?

In response Dr Edward notes that one must consider the value to the child of altering her current situation and what she might gain as a result. At the moment the child enjoys a very positive, stable and secure living arrangement. She holds a positive and secure attachment to JH and SH. They are her primary attachment figures. Their parenting and home is all she has known. There are no concerns about the ability of her carers to prioritise her needs, though this has "clearly led to a significant rupture in their family relationships". The respondent acknowledges that the child is likely to have a bond with her carers, but Dr Edwards is "doubtful of her understanding of the meaning of that bond in relation to the child's development and well-being". It is most unfortunate that SH and JH's commitment to the child is seen as such a negative factor within their own family.

[137] Dr Edward continues:

"Had it been possible to rehabilitate the child to the care of the respondent within the first six months of her life, there would have been a much greater possibility of the child transferring her attachment successfully and suffering few ill-effects of such a move. However, even in that circumstance it would be vital that such a move was measured, and that the child's time with her early carers not undermined. However, the child is now 20 months old and I would suggest that it would be extremely difficult for her to manage removal from the care of SH and JH, and such a break in attachment could cause significant developmental damage. This is made more likely by the fact that I have little confidence that, given the very antagonistic family relationships, the child would be able to retain positive and meaningful contact with SH and JH, or that her time with them would be referred to in a positive manner by the respondent and her family.

As such, in considering rehabilitation of the child, one would appear to be considering removing her from her primary attachment figures, who are committed to her ongoing care and have to date evidenced their ability to prioritise her needs. The child would then be placed in the care of her birth mother, who does appear emotionally attached to her, and the child is clearly content and comfortable in her company. However, she is not her primary attachment figure and I do not feel that the child perceives her as a mother figure. Whilst it is possible that the respondent could offer an appropriate and stable life to the child, there do exist concerns about the family dynamics and past evidence of a lack of ability to care for her own children. As stated, there are also significant concerns about the manner in which her early attachment to SH and JH would then be managed and portrayed.

As such, it appears that the best interests of the child would be served by not attempting rehabilitation, as this course holds very significant concerns for her, while her remaining in her current home would offer her a continuation of the security and stability she has been afforded over her first 20 months of life. I understand that these factors have led to the same conclusion and prior assessments and a more recent adoption panel. Despite the obvious distress it would cause the respondent not to have the child returned to her, it would be my opinion that her best interests could be served by allowing her to remain within the care of SH and JH".

[138] In response to further questions, in her report Dr Edward reaffirms and explains her opinion that it is in the child's best interests that she remain in her current placement. There would be no significant benefit, but considerable cost to the child in removing her from her current home and attachments and transferring her to other carers. The most appropriate order would be that which would secure the child's permanent placement within the home of SH and JH, and provide the maximum amount of security for the child within that placement. This could most appropriately be achieved through formal adoption. This would formalise the parenting role already fulfilled by SH and JH, "and allow them the opportunity to make decisions for the child as is appropriate to their role in her life (rather than the power to make these decisions lying with other authority)". Given the difficulties within the family, this would provide a clear understanding as to where the child's permanent placement will be. As the child becomes older and more aware of her context, adoption would allow her to feel secure within her family as a permanent member of it. "Such security would be to the benefit of her emotional development".

[139] Dr Edward was asked as to the child's best interests in relation to contact between her and the respondent. She notes that, from the outset, there has been considerable difficulty in respect of contact between the child and her birth parents. This was demonstrated through lax adherence to the times of contact, possible lack of appropriate interaction with the child, and an apparent lack of commitment to the process - all likely to have been a product of the lifestyle of her birth parents at the time. Notwithstanding the improvement in the respondent's commitment to contact in recent times, and her positive one-to-one interaction with the child, "the level of antagonism shown towards SH and JH has increased and been sustained at a level that cannot be seen to be conducive to the well-being of the child". There does not appear to be any acceptance from the respondent's family that the child's placement has been to her benefit, and, given the concerns expressed about the family dynamics, Dr Edward has significant concerns as to whether that can or will shift. JH has considerable empathy for the position of J and hopes for an ongoing relationship between him and the child. Having observed them together at contact, Dr Edward is of the view that J is clearly very fond of the child and he would be likely to suffer if his connection to her was permanently severed. JH is more ambivalent about the situation with the respondent, and she is doubtful as to whether the respondent and the child's father could manage contact with the child post-adoption. Dr Edward notes that these concerns have been echoed throughout the prior assessments and hearings in the case.

"It is interesting in a case where a kinship placement should be seen as a positive for a child who could well have been placed outside of her birth family from the outset, that it is in fact a complicating factor. It would certainly be to the child's developmental benefit if she could maintain relationships with her birth mother, grandmother and brother. However, it would be essential that these relationships were conducted in a manner that was positive and constructive for the child and for J. Any behaviour within those relationships which aims to undermine or denigrate the child's relationship to SH and JH ,or SH and JH themselves, could significantly and negatively impact on the child and her emotional development. It would likely also be detrimental to J if he is exposed to open animosity or negativity.

The child's best interests are of course the paramount concern here, and I would suggest that her need for a stable home and family life is a greater priority than the continuation of her relationships with J, the respondent and KP. As such I would suggest that direct contact would only be in her best interests if it took place in a manner which was fully supportive of the child's placement".

[140] So far as contact with J is concerned, this could most easily be arranged when the child is visiting or being visited by JH's parents, or possibility facilitated via the social work department. As to contact with KP and the respondent, that will depend upon their acceptance of any new permanence plan made for the child. Whilst continuing contact with the respondent could and should be a positive aspect of her daughter's childhood and development, it should only be attempted if the respondent has shown a sincere commitment to safeguard the child's best interests by supporting the decisions made regarding her placement. Some level of ongoing assessment and/or mediation with the respondent would be necessary following any decision about the child's future. This should inform decisions about contact following any decisions about permanence. This may mean that direct contact with KP and/or the respondent is not possible. That would be distressing for them, however Dr Edward hopes that if the decision is made to make the child's placement permanent, then the respondent and KP will be able to draw on their obvious care about the child to help them to act in her best interests. It would be a significant responsibility for SH and JH to require to assess and facilitate such contact. Nonetheless Dr Edward suggests that their views as to whether they feel that contact would be positive should be the deciding factor as to whether contact takes place. This would encourage acknowledgement of their role in the child's life. It should also be the case that KP and the respondent retain the ability to communicate with the child through cards and letters, even if direct contact is deemed inappropriate. Furthermore, to allow the child to grow up in a full and meaningful understanding of her past and her birth roots, it would be important that SH and JH are given support to introduce an understanding of her adoption and birth family to the child from an early age.

[141] In summary, in her report Dr Edward concludes that rehabilitation to the care of the respondent would not be in the child's best interests; her placement with SH and JH should be made permanent through adoption, thereby providing security for the child throughout her life; and post adoption contact would be beneficial only if it was conducted in a manner which was supportive of the child's placement with SH and JH. The respondent and her family will require to be assessed as to their ability to support the decisions made about the child. That assessment can only be made after permanent decisions have been taken.

[142] In her evidence in court, Dr Edward indicated that she was provided with a limited timescale for her assessment. She tried to focus on the essential aspects of the case. She mentioned that, particularly in adolescence, a healthy and balanced view of a person's identity is strongly related to psychological health. "Attachment" is very important in child psychology. A lack of attachment can have neurological and physiological impacts. A primary attachment is good and positive when the child recognises that her needs will be met by the carer. This is what Dr Edward meant by "attunement". If there is a lack of a secure attachment, there is a greater likelihood of moderate/severe psychological, behavioural and educational difficulties. A primary carer does not require to be a natural parent. For a young child, the more secure the attachment, the better. Attachment is relevant all through childhood and into adulthood. A lack of attachment can cause problems regarding the formation of secure and lasting relationships.

[143] In Dr Edward's view there is a secure attachment between the child and SH and JH. A permanent break could be very traumatic and cause significant problems. It would have to be managed very carefully. If it were to happen, one would hope to break an attachment within the first six months of a child's life - a year at the outside. In the present case the child would find this extremely difficult. It can work, but it is never ideal. There are times when it simply does not work. Therapeutic work can offer the prospect of some repair of the damage. For a child it is confusing to have two people called "mummy". Dr Edward noted that the child was not in any distress when she left the respondent. Her sense is that there is no significant attachment between the child and the respondent. The respondent has no goodwill or positive feelings towards JH, describing her as having "an evil streak".

[144] It would be usual for an adoptive parent to have the responsibility for dealing with issues concerning maintaining contact with foster carers. If the child was returned to the respondent there would require to be a great deal of co-operation between the parties so that the child could feel that her early attachments were important and valued. Dr Edward has concerns that the difficulties in the relationships would rule out that kind of planning and co-operation. Even in cases where there is no animosity, it is difficult to achieve. It could be very detrimental to the child if she sensed that her current carers were viewed negatively. Within the respondent's family, child care does not seem to be a simple process. There are problems about giving priority to the children over and above the feelings and desires of the adults. A functional family unit would prioritise the child above all else.

[145] The antagonism springs from the respondent's desire for the child, and JH and SH's desire to retain her. It grew because the child was with JH and SH. In Dr Edward's experience the context of this is unusual. The child attends a nursery, but there is no evidence that anyone other than the respondent has concerns about this. In Dr Edward's view, if the child was returned to the respondent there would be a high risk of a negative impact on the child's development, learning behaviour and long term mental health if the transition was not managed properly. Dr Edward can see no benefit or purpose in the child being removed from her current stable home to live with the respondent's mother, who, in any event, has much on her hands with the other children. Rehabilitation would be detrimental to the child: whether that was "serious" would depend upon the circumstances, which cannot be predicted with certainty.

[146] When asked - why adoption? - Dr Edward stated that as children grow up it is important that they feel "claimed". It is beneficial if the child's carers are able to make the decisions regarding schooling, medical matters, holidays, etc. If parental responsibility remains with the local authority, this causes practical problems for carers, and the child does not have the sense of having been adopted into the family. This child's overall position has been uncertain for 20 months. "Will she spend her whole childhood not knowing if she will stay with SH and JH or move to the respondent?" In Dr Edward's view there is not much value in a desire to keep options open "just in case". Adoption provides stability and allows JH and SH to have responsibility for decisions. It will formalise the roles within the family, and allow others to understand that the child will live with SH and JH. It would provide stability, clarity and certainty.

[147] So far as post adoption contact is concerned, Dr Edward notes that there is some evidence from studies to suggest that an adoption helps the birth parents to be sensible and reasonable regarding contact. In the present case there would require to be a shift in the attitudes of the respondent and her mother if contact was to be a positive experience. It is difficult to know how this change in attitude is to happen, but the respondent would require to help and engage in a positive manner. In Dr Edward's view, a decision on contact should not be made at this stage. Post adoption an assessment can be carried out in order to determine how parties have reacted to the new situation. It would be undermining if the child was told that she was living in the wrong place and with carers who did not have her best interests at heart. SH and JH would struggle if they felt that contact was having damaging consequences. JH will help the child to understand her roots and place within the family at an appropriate stage as she matures. Dr Edward can envisage there being no contact. At present the issue depends upon whether it can be managed in an appropriate manner. Contact with J would be positive for the child if well managed. There is no reason for J not to have contact, probably at the home of the shared paternal grandparents, or at the home of SH and JH. Much depends upon the arrangements and how contact is explained to J. If and when the adoption decision is made, the birth parents views might shift, allowing them to react more positively and take part in a constructive spirit. There is some research to this effect. Whatever else, there could be indirect contact to maintain a connection. Even then there would require to be a framework, otherwise it could be overwhelming to the adoptive parents. It is a two way process.

[148] Dr Edward understands that the social work department is not one hundred percent confident that the respondent has reached a level of permanent stability. There would require to be a good reason to justify moving the child. Dr Edward cannot think of one. She accepts that she has not met SH, but does not consider that it would make a significant difference. The quality of their care is not an issue. Dr Edward adheres to her report. When asked whether there was anything she would wish to add, she said that she had found this a difficult case in which to reach conclusions. It is an unusual case. She had not reached her conclusions easily or swiftly.

[149] In cross-examination Dr Edward readily accepted that the child played happily with the respondent, and seemed happy and engaged. J was enthusiastic about her. Everything seemed entirely natural. J is fond of his little sister. The respondent seemed able to react and attune to her daughter's needs during the contact session. Dr Edward was asked about the child's use of the word "mama". Dr Edward saw the child three times, and she always used that word, sometimes when interacting with JH, sometimes when with the respondent, and sometimes not directed towards anyone. It is an easy word for a child to use. A child will use it to develop speaking skills. A child will use the word to attract attention. The child showed no discomfort towards the respondent - there was intimacy between them. There was a hug, and the child played with his mother's hair. This was all very positive. Dr Edward agreed that the child has some level of relationship with the respondent, similar perhaps to that of a nursery worker.

[150] Dr Edward agreed that she cannot say definitely that there would be serious harm to the child if she came to live with the respondent. One would need to follow this through on an experimental basis and see how matters played out. Dr Edward has real concerns as to how the wider antagonism discussed earlier can be ameliorated. The situation seemed to be deteriorating. The antagonism is important, but so is the issue of the child's primary attachment. Dr Edward agreed that, speaking in general, the best scenario is for a child to be cared for and brought up by her natural parents. However the issue is how long one can, or should, delay in identifying a permanent home for this child. There are real doubts as to whether the family can work together in the child's best interests. The conflict is very open and very strong - and personal, in the sense that it is not just that the child should be with the natural parents, but that she should not be with JH and SH. The phone calls and texts were very difficult and demanding for SH and JH. A decision on the child cannot wait for everything else to be resolved.

[151] Dr Edward took the views of the social work department into account. She accepts that the respondent has made very positive progress since late 2010. The increased contact with J is an expression of some confidence in her by the social workers. It was put to Dr Edward that post adoption SH and JH would not allow contact with the respondent. She responded that she considered that they would act in the child's best interests. At present the best thing for the child is a secure placement with carers who have claimed her as part of their family. She could still maintain links with her birth family. Whether that happens will depend upon how her family responds. The priority is a secure long term placement. Other factors do not outweigh the importance of that benefit. It was put to Dr Edward that the current situation is stable. However, she does not perceive it as a stable and comfortable arrangement. It is fraught with emotion. A resolution is needed now. In due course the child will come to understand that she was not abandoned by her natural parents.

[152] In re-examination Dr Edward explained that, even if rehabilitation to the respondent was managed in a gradual fashion, it could still cause damage to the child. It would require months of work. Even then it may not be successful. There is "an enormous amount of unknown territory". An unsuccessful rehabilitation would be very damaging for the child. If she heard SH and JH being denigrated, it could cause distress and damage to the child. In reaching her conclusions, Dr Edward had reflected upon and taken into account the weight to be placed upon the possibility of maintaining the maternal bond. However, given the uncertainties, it was less important than maintaining a stable and settled home life for the child.

Counsel's submissions
[153] Counsel were both good enough to provide detailed written submissions. The following is a summary of those submissions.

Ms Hodge's submissions
[154] Counsel for the petitioners outlined the relevant statutory framework. With regard to case law, she referred to S v L 2012 SLT 1204; City of Edinburgh Council, Petitioner, [No 2] 2010 Fam LR 92; Aberdeenshire Council v W 2011 SLT (Sh Ct) 186; and Inverclyde Council v M T and M S [2012] CSOH 27.

[155] Counsel then surveyed and summarised the background to the matter and the relevant evidence. Although disputed by the respondent, Ms Hodge emphasised that the family tensions are real. The impact of the natural parents' lifestyles and history on the petitioner's social work department could not be underestimated. That department has a long history of involvement with J. In December 2011 Ms Baker told the adoption and permanency panel that, although willing to accept the improvements in the respondent's lifestyle, she was untested as a mother and was still deemed unable to care for the child. The child's father lacked awareness, could not grasp the processes, and did not take in plans being made for his children. He has demonstrated no insight into the needs of such a young child. So far as the respondent is concerned, Ms Hodge submitted that the court cannot be confident that she has the willingness or the skills to manage any kind of transition in care successfully, nor that the "high risk" spoken to by Dr Edward would not arise, namely damage to the long term development of the child in terms of identity, ability to form relationships, and to feel valued. If rehabilitated to her mother, there are "too many unknowns in the child's future." If it proved unsuccessful, then, notwithstanding the damage to her primary attachment, the child would have to be returned to JH and SH. If the child was adopted outwith the family, it would involve her being moved first to foster carers, then to adoptive parents. The kinship adoption, even notwithstanding the tensions, would mean that she stands a better chance of learning about her family. It was now "too late" for rehabilitation given the passage of time and the formation of the child's primary attachment to SH and JH.

[156] In her report to the December panel, Ms Hurley emphasised the continuity of the child's care, the attachment of the child to SH and JH, and their understanding of her need for stability. She perceived the difficult family dynamics as possibly disruptive, particularly if matters remain as they are. Counsel referred to and relied on Dr Edward's report and evidence. With regard to post adoption contact, Ms Hodge referred to Ms Baker's evidence that if the child could not be supported in its placement, such contact should be indirect. There should be no order for contact . This would allow the family to work it out for themselves. She was confident that JH and SH have the capacity to deal with that. Dr Edward's view is that, while it is in the child's interests to maintain contact with her parents, brother and grandmother, these relationships should not have precedence over the primary attachment.

[157] Counsel addressed the relevant statutory tests in support of her invitation to the court to grant a permanence order in respect of the child, with authority to adopt and the other provisions mentioned at the outset of this opinion, all as sought by the petitioners.

Ms Clark's submissions
[158] On behalf of the respondent, Ms Clark invited the court to refuse the orders sought by the petitioners on the basis that the statutory tests have not been discharged. A permanence order would not promote the welfare of the child throughout her childhood. Furthermore it would not be seriously detrimental to the welfare of the child for her to reside with the respondent. The respondent is able to discharge parental responsibilities and exercise parental rights in a satisfactory manner. There is no proper basis for dispensing with her consent to adoption. Furthermore the orders sought are inconsistent with the article 8 rights of the respondent, the child and J. In the event that a permanence order is made, an order should be pronounced regulating contact.

[159] Ms Clark discussed the statutory tests, and made reference to various cases, including East Lothian Council, Petitioner [2012] CSIH 3, S v L (cited earlier), and the European jurisprudence referred to in that decision. It is only if the test for a permanence order is satisfied that the court proceeds to consider whether the ancillary provision granting authority to adopt should be made. For the court to make a permanence order, the petitioners would require to have established that residence with the respondent is likely to be seriously detrimental to the child's welfare. That test has not been met. In any event, there are no proper grounds for dispensing with the respondent's consent to adoption.

[160] Ms Clark then discussed the evidence. It was submitted that it is plain from Dr Edward's report and evidence that she concluded that it cannot be said that it would be seriously detrimental to the child to live with the respondent. It is an unusual feature of this case that the mother can love and care for the child. The most that Dr Edward could say was that residence with the mother "could" be seriously detrimental to the child, but only when looking at issues other than the mother's ability to care for the child. The previous impediment to the child living with the mother was her drug abuse. That impediment had been removed. The respondent loves the child. She can provide emotional and practical care for the child. She has the ability to discharge her parental responsibilities.

[161] It was submitted that refusal of the petition does not mean nothing can be done. An application in terms of section 11 of the 1995 Act is available to determine the issue of residence. That would be a less drastic and less interventionist remedy. It would recognise the entitlement of the respondent, the child, and her sibling J to respect for their right to family life in terms of article 8 of ECHR. It has to be borne in mind that the test is not one of detriment to the child, but serious detriment. Ms Clark submitted that poor family dynamics is not a reason for predicting serious detriment. They should not be given "the status of a colossus that obscures the relationship between natural mother and child". Such tensions as there are will not prevent the family from working together to further the interests of the child. In any event, in the main any discord concerns to the relationship between JH and her brother, the child's father.

[162] Caution should be exercised in respect of relying upon the evidence from JH and SH. No doubt they care for the child, but they want to adopt her. This will have influenced their evidence. They both said that they first met the respondent when she was pregnant with the child. Both denied any prior relationship or knowledge. This was directly contradicted by other evidence in the case, including from the respondent's mother. In this regard JH and SH were both incredible and unreliable. It is difficult to understand the reasons for their evidence, "other than a desire to confine the relationship to a circumstance pertaining to the child". The aim was to mislead the court towards a view that there is little or no potential for the family to work together. The evidence of JH and SH is "tainted". The views of Dr Edward were predicated upon the situation as presented to her by JH and SH, therefore her opinions on the issue of whether the relationships between the parties have no potential for improvement should be approached with caution. There was evidence that the family had come together before - and it could do so again. The fact that the child had been placed in kinship care should not work against the potential for her rehabilitation within her natural family.

[163] Reliance was placed upon the evidence of J's head teacher, who spoke of J's delight in his little sister. The picture was of a functioning family supported by love and affection. KP is a straightforward woman - there was no sense of contrivance in her evidence. She spoke of the love of her daughter for J and the child. She is recognised by the social workers as a protective factor in relation to the child and J. The respondent's younger sister spoke of a close relationship between J and the respondent, and between the child and the respondent.

[164] Counsel submitted that this is an unusual case in that it involves kinship care, and a mother who, because she has turned her life around, can now provide a loving and caring home for the child and a continuing relationships with her brother and grandmother. There is a good quality of contact between the mother, brother, grandmother and child. Most adoption cases arise from the absence of such factors.

[165] In the event that the court is minded to grant a permanence order, Ms Clark submitted that the court should not grant authority to adopt the child. That could only be done if the court found that the respondent's consent should be set aside because she is unable to discharge her parental rights and responsibilities in respect of the child, and is likely to continue to be unable to do so - or - because the child's welfare "requires" that the adoption should proceed notwithstanding the absence of the mother's consent. Counsel submitted that the evidence does not allow the court to conclude that the respondent is unable to discharge her parental rights and responsibilities in respect of the child. With regard to the fallback "welfare" alternative, this will arise only in very limited circumstances. Whatever the court's view as to the current position, it cannot be said that the respondent will not be able to discharge her parental rights and responsibilities in the future. The respondent has made major progress in overcoming her previous lifestyle. All the indicators for the future are good. Reference was made to the affidavit evidence of Jennifer Melville confirming the college course and a successful work placement.

[166] Counsel then presented a submission under reference to section 6 of the Human Rights Act 1998 and article 8 of ECHR. Reference was made to Johansen v Norway 23 EHRR 33. Deprivation of parental rights with a view to adoption is only permissible "where particularly strong reasons for such a measure are at hand." The authorities are under a duty "to exercise exceptional diligence." The mere passing of time should not be a decisive factor. In this regard counsel submitted that the assessment prepared by Angela Garcia in March 2011 failed this test. It is not possible to be confident as to the eventual outcome had the report been wholly accurate. In the context of article 8 it is necessary to consider the rights of J, and also those of the child herself. Reference was made to paragraphs 122-4 in S v L. A less interventionist order should be made which caters for the preservation of the family relationships.

[167] Counsel urged caution in considering the surrendering of the issue of the continuing relationship between the child and her mother and brother to SH and JH. "They have a desire to eradicate the presence of the mother from the child's life." They only have sympathy for J and KP. The likelihood is that the adoption of the child by SH and JH will result in her losing these loving relationships. The better course is to refuse the petition and allow the arrangements to be managed in the future by reference to section 11 of the 1995 Act, thereby facilitating the natural development of a relationship with the mother in the context of a parenting assessment. This would allow the continuation of the relationship with SH and JH, perhaps as uncle and aunt, and preserve "the natural order". There is no particular urgency in finalising matters. In the event that the adoption is authorised, it would be in the best interests of the child that an order for contact in favour of the mother, the brother and the grandmother is also made. The respondent said in evidence that she would not seek to undermine the adoptive relationship.

[168] In a short reply Ms Hodge submitted that Dr Edward is of the view that removal of the child would be detrimental to her. The concerns she described are serious. In any event, it is a matter for the court. So far as article 8 is concerned, if adoption is deemed a necessary and appropriate procedure in a democratic society, the circumstances in the present case give rise to a necessity for the local authority to exercise its powers.

General observations on the evidence
[169] I have set out the evidence in detail. The following are some general impressions and observations. I was impressed by the two key professional witnesses, namely Ms Baker and Dr Edward. They both gave their evidence in a measured, thoughtful and balanced way. From a relatively early stage, and until the middle of last year, Ms Baker was the social worker for the child, for J, and for the other children in the wider family. She had direct contact with and knowledge of the key persons during the critical period when major decisions were taken. She is familiar with the important meetings, reviews, panels, etc. She spoke with the authority flowing from her deep knowledge of all those whose interests are directly engaged in this matter, including the child's parents, their wider family, and the child's carers. Dr Edward was given a difficult remit, to be performed within a relatively short timescale. She found her task far from straightforward, but after careful thought and reflection she gave the court the benefit of clear and considered professional opinions on the questions put before her on the joint instruction of the petitioners and the respondent.

[170] For JH, giving evidence was an ordeal, though she still came across as someone who cares deeply for the child and will be able to provide her with a stable and loving environment. Fortunately SH was more comfortable giving evidence. I formed the opinion that he is a level headed and sensible person, who can be trusted to act in the child's best interests. Both SH and JH have proved themselves to be resilient and capable people. But for their willingness to look after the child, she would have been fostered outwith the family. KP has been an equally resilient and robust figure. She certainly bore out that impression when she gave evidence. Her children have had serious problems, and she has had to adopt major responsibilities for the next generation.

[171] For reasons recorded earlier, the respondent has lost the care of her two children. However, since late 2010 she has made remarkable progress towards overcoming her problems. Her separation from the child's father has been beneficial, and there is a prospect that, over time, J will come to spend even more time with her. Clearly she wants to care for her daughter, and I am sure that her evidence as to her love and concern for both the child and J is genuine. She sought to minimise the problems and difficulties in her relationship with SH and JH. In the circumstances that was understandable, but, against the whole background of the evidence, I have no difficulty in concluding that there are real concerns arising from the poor relations between the child's carers on one side, and her parents and wider family on the other.

[172] A number of factual disputes were ventilated at the proof, for example, was it JH or the respondent who first suggested the care arrangements for the child? There was also a dispute as to the extent to which the respondent and JH knew each other before this arrangement was made. There is some controversy as to the cause of and the responsibility for any antagonism between the carers and both parents and KP. I regard these particular factual disputes as secondary, and not critical to the ultimate decision. However, if it had been necessary to resolve them, I would have considered that, given the content of the contemporary records, and the overall likelihood of the situation, the suggestion that JH and SH might take charge of the child emerged in the course of discussion, and was put to JH and SH by the respondent and/or the child's father. It matters not if I am wrong in that. On any view this arrangement quickly became an agreed course of action, designed to prevent foster care outwith the family. The social workers were more than prepared to endorse it.

[173] For whatever reason, JH is keen to minimise her prior relationship with the respondent. It seems most unlikely that she had no relationship with her brother's partner, who was also the mother of J, her nephew. JH was so nervous when giving her evidence that I am not confident that she fully understood all the questions and all her answers. However, against the bigger picture, none of this causes me to question her ability to care for and to prioritise the child's needs. Though clearly this issue is seen as a matter of importance by the respondent, in my view it is far from critical to the correct disposal of the petition.

[174] There is an overwhelming body of evidence, including contemporary records, that from an early stage there were major problems in the contact arrangements and the relations between JH and SH and the other side of the family. Undoubtedly the chaotic lifestyle of the child's parents, which continued until well after the child's birth, was a major contributory factor, especially in respect of the difficulties experienced in relation to contact and telephone calls/text messages, etc in the second half of 2010. The progress made by both birth parents in this regard has not repaired the breach. Counsel for the respondent invited me to conclude that these concerns have been exaggerated. It may well be that, in the respondent's wider family, arguments, strong words and plain speaking are the norm. They are used to it, and find it difficult to understand why others cannot cope with such apparent antagonism and hostility. However the problems are real to JH and SH, and to the social workers. While much of the proof revolved around these issues, and they are undoubtedly a factor to be taken into account, once again in my view it is not necessary for me to apportion blame or responsibility, nor to identify the precise reasons for the rift. What matters is that it exists - and this has implications for the future - though, as I will explain, it is not the sole or even the determinative factor.

[175] Counsel for the respondent stressed that the evidence supports the view that the mother can provide emotional and practical care for the child - or at least that it cannot be concluded that this will not be the case. She submitted that the evidence does not justify breaking the child/mother link, especially when the court's task is not to choose the superior environment for the child, but to apply the relevant tests in the legislation. In particular I was urged to take the view that it would not be seriously detrimental to the child to reside with the respondent. It is one of the particular features of this case that, if the respondent became pregnant now, there is every chance that she would be allowed to take the new baby home and care for the child, no doubt after a thorough parenting assessment.

[176] It is also noteworthy that the child has never lived with her mother. In accordance with normal practice in such cases, she was removed to the neo-natal unit immediately after birth - so there was none of the immediate bonding which normally occurs between mother and newly born child. In the meantime the child has bonded and formed a close primary attachment with JH and SH. In all practical respects they are her parents, and have provided the only nurture and home which the child has known. She is well cared for by a couple whom she regards as her mother and father. They can, and if allowed will provide her with a secure, stable and permanent home and family life. The question in the present case is not simply - can the respondent provide love and emotional and practical care - but would it be seriously harmful to the child to upset the current position and sever her primary attachment? On any view that would be a risk, not only because of the respondent's history and the possibility of a relapse; not just because of the poor relations in the family; but also because the respondent is wholly untested as a parent. But even in the absence of such risks, the question would still arise - why move the child now? The big factors in the respondent's favour are that she is the child's natural mother and she is pursuing an ever closer connection with the child's brother J. There are obvious attractions in an outcome which maximises the possibility for the child to form a close relationship with her elder brother.

[177] Counsel for the respondent urged the court to do nothing dramatic meantime, and give the respondent more time to prove her ability to look after both her children. That is a seductive argument, but it is countered by the benefits - the pressing need as some would have it - of removal of the current doubts and uncertainties as to the child's future. The respondent's approach would subject the child to a continuing state of uncertain limbo, and leave her and her carers fully exposed to the turbulence of the inter-family hostilities. The counter argument is that to deprive the child of the stability, permanence and continuity which the orders sought by the petitioners would provide, would, in itself, be seriously detrimental to her and contrary to her medium and long term welfare. The serious detriment would arise from failing to confirm the current settled and secure situation, which has prevailed since the child's birth, and which can safely see her through to adulthood.

[178] Given that she is slowly being rehabilitated with J, the respondent finds it difficult to understand why different views should be taken in respect of the child. However, J and the child have two very different histories, and are currently in very different places. It by no means follows that what is best for J is also best for the child. It is in the respondent's favour that her personal circumstances and her level of contact with J have improved so much since the authorities took the initial decision to move towards a permanence order with authority to adopt. However, as recently as December of last year, the permanence and adoption panel reaffirmed that plan. Dr Edward, after very careful reflection, has decided to support that plan and the panel's decision. The social work department still has concerns as to the respondent's long term ability to parent J. There is no immediate plan to transfer full parental responsibilities for J, either in legal or practical terms, to the respondent. She remains on a methadone programme, albeit her dose is reducing and she appears to be progressing well. It is to her great credit that she has coped so well with the recent tragedy of her sister's death. She does have a warm and apparently affectionate relationship with the child when they meet. That said, full time parenting is a very different matter from occasional contact sessions. In my opinion it cannot be concluded that there would be no serious risks in rehabilitating the child to the respondent's care. If it was tried, but failed, the serious damage to the child is obvious.

[179] It was submitted that I should be cautious as to the evidence given by JH and SH because they so clearly want to adopt the child. They must be fearful that the progress made by the respondent will thwart their wishes. I am not sympathetic to that submission. I have formed the view that, to the best of their ability, SH and JH gave their evidence in a straightforward, balanced and moderate fashion. The only concern I have is the extent to which JH's nerves may have impacted upon her ability to do herself full justice in the witness box. I reject the submission that their evidence was tainted or tailored to their self interests. No doubt in such situations there will always be huge pressure on witnesses to persuade themselves of a gloss on the facts which is most favourable to the desired outcome. However, in accordance with all the other independent evidence in the case, I am fully prepared to proceed upon the basis that JH and SH are honest and trustworthy people who always have and always will put the child's best interests first.

[180] In any event, counsel's charge of self interest could equally be directed at the respondent and her mother. In their case there was perhaps even greater scope for and temptation to see matters in the most favourable light. Happily, as indicated earlier, I consider that I need not agonise over areas where the evidence of the respondent and KP might or might not be criticised in terms of reliability. The really important facts, and inferences from facts upon which my decision is based, do not depend upon the outcome of such an exercise. There is more than enough solid and uncontentious ground to render it superfluous to attempt to resolve every difference in the accounts given in the witness box. None of these disputations are material to the proper outcome of this petition.

[181] Emphasis was placed upon a family meeting in the second half of 2010 when everyone came together and resolved to "get through this". That was a positive meeting, and it gives hope for the future; but against the rest of the evidence, it casts no real doubt on the reality of the conflicts and tensions which continue to bedevil family relationships.

[182] Counsel for the respondent referred to the evidence of J's head teacher and to that of the respondent's younger sister. I have no difficulty in accepting their evidence. Reference was also made to the inaccuracies in the report prepared by Angela Garcia for the panel on 28 March 2011. It was very unfortunate that the earlier parts of that report, which were taken from earlier assessments, were not revised and updated. The problem was compounded when (they say because they were unaware of the meeting) the parents did not attend and the panel proceeded regardless. However Ms Garcia said in evidence that she did provide panel members with a verbal update. I have no reason to disbelieve that evidence. It would be very surprising if she did not mention the current situation. In any event the reduction in contact was the subject of a conceded appeal, and in due course contact was increased. As at March 2011, the improvement in the respondent's lifestyle was still at an early stage. Later panels, which had been provided with the correct information, supported the social work proposals. Nonetheless it was most unfortunate that there were inaccuracies in the report. This was exceptionally distressing to the respondent and the child's father. That said, the clock cannot be turned back. Though one hopes that appropriate lessons have been learned as to the dangers of a "cut and paste" approach, this unhappy episode does not alter the need to reach a decision on the facts as they are today. In any event it seems to me unlikely that, if the report to the March panel had been in different terms, and if contact had not been reduced to twice a month, events would have taken a materially different course. While I will return briefly to the issue of article 8 of ECHR later in this opinion, I record now my rejection of the submission that Ms Garcia's report is evidence of non-compliance with the rights of the respondent and others under that article.

The relevant statutory provisions and case law
[183] The key statutory provisions are set out in sections 14 and 80-84 of the 2007 Act. Some of the relevant provisions are either not applicable or not controversial. However I must address the following issues which are critical to the correct disposal of this petition.

1. In deciding whether to grant a permanence order, I must have regard to all the circumstances of the case; treat the need to safeguard and promote the welfare of the child throughout her childhood as the paramount consideration; and consider whether it would be better for the child that an order be made than that it should not be made. I must also decide whether the child's residence with the respondent is, or is likely to be, seriously detrimental to her welfare. A similar, though less controversial question arises in respect of the child's father.

2. If I reach the stage of considering whether to grant authority to adopt, I must decide whether the child's parents consent should be dispensed with, either on the ground:

(a) That each is unable satisfactorily to discharge parental responsibilities or exercise parental rights in respect of the child, and is likely to continue to be unable to do so; or

(b) The welfare of the child otherwise requires that parental consent be dispensed with.

In deciding on whether to grant authority for adoption of the child, I must have regard to all the circumstances of the case, including the value of a stable family unit in her development; the likely effect upon her throughout her life of the making of an adoption order; and the need to safeguard and promote her welfare throughout her life, which must be the paramount consideration. Again it is necessary to consider whether authority to adopt is better for the child than no such authority. The statutory provisions make reference to the child's religious persuasion, racial origin and cultural and linguistic background. No real issue arises in respect of these factors. The child is too young to express her own views. It is agreed that she has been placed for adoption.

[184] The relevant statutory tests have been considered in a number of recent cases. Both counsel made reference to S v L (cited earlier), a decision of the First Division. It concerned the part of the 2007 Act dealing with adoption orders, but those criteria mirror those relating to a permanence order with authority to adopt. In the opinion of the court delivered by the Lord President, Lord Hamilton, his Lordship addressed a submission that the legislation was not compliant with article 8 of ECHR. It was noted that adoption does not necessarily cut off all relationships between a child and his or her biological parents. After a review of the relevant legislation, at page 1210 the following general conclusions were reached:

"The overall criterion for dispensing with the consent of the parent or guardian is accordingly that the whole-life welfare of the child requires that course be taken. The word 'requires' imports an imperative demand. The question which arises is whether such a legislative provision is inconsistent with the article 8 rights of the biological parents (or of the child).

The obligation of the state is to ensure that...the best interests of the child is the paramount consideration. That is consonant with the general requirement (in article 3) that in all actions concerning children the best interests of the child are to be a primary consideration."

The Lord President made extensive reference to a decision of the Court of Appeal, namely In Re P [2008] EWCA Civ 535. In that decision it was stressed that the court must not sanction a major interference with family life unless it is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the child or children. There must be "cogent reasons" justifying major interference such as adoption or taking a child into care. Adoption without parental consent is "the most extreme" interference with family life. Reference was made to Johansen v Norway 23 EHRR R 33 in which the Strasbourg court said that "such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests." The court has to be satisfied that the child's welfare "requires" adoption as opposed to something short of adoption. The Lord President said that In Re P provides useful guidance on the proper approach to the statutory criteria for dispensing with parental consent in relation to a proposed adoption. The word "requires" has the "connotation of the imperative; what is demanded rather than what is merely optimal or reasonable or desirable."

[185] The guidance in S v L is also relevant in relation to the "welfare" justification for dispensing with parental consent. There can be situations where it has not been proven that the natural parent is unable to discharge parental responsibilities, yet the court dispenses with that parent's consent to the proposed adoption because the welfare of the child "requires" it. The Lord President indicated that the instances for the application of the welfare test may be limited. However a submission that the welfare test is impermissibly vague was rejected. It has a legitimate aim (the best interests of the child) and seeks to achieve that aim by proportionate measures.

"It is thus justified - 'necessary in a democratic society...for the protection of health or morals, or for the protection of the rights and freedoms of others' (including subject children)."

[186] The proposition that cutting off a child from its roots can only be justified in very exceptional circumstances was approved in Görgülü v Germany [2004] 1 FCR 410. In that case there were strong factors in favour of the biological father and the decision turned very much on the particular circumstances of the case. In P v United Kingdom (2002) 35 EHRR 31 (a freeing for adoption case) the proposition was formulated thus - "that a measure which would cut a child from its roots could only be justified in exceptional circumstances or by the overriding requirement of the child's best interests."

[187] No doubt the expression "a child's roots" is open to interpretation. In the present case, at least to my mind, it is of importance that the child has never lived with her parents and has known only SH and JH as her carers. In asking the court to dispense with the respondent's consent to the proposed adoption, the petitioners are not inviting interference with any day to day family life which the child has enjoyed in the past. It is the biological parent who is seeking to upset the status quo, and, in a practical sense, remove the child from the only home she has known. Furthermore, as I will explain later, the proposed kinship adoption would not necessarily sever the child from "her roots", if that phrase is used in the sense of her wider birth family.

[188] Counsel for the petitioners made reference to the decision of the sheriff principal of Grampian Highlands and Islands in Aberdeenshire Council v W 2011 SLT [Sh Ct] 186. There are parallels between the factual circumstances in that case and the present. While every case has to be decided on its own particular facts and circumstances, there are certain general themes in the decision which resonate in the present case. The local authority had petitioned the court seeking a permanence order in respect of a child with authority to adopt. Two children had previously been removed from the parents on the grounds of neglect and were subsequently adopted. The third child had been made subject to a child protection order at birth and had resided with prospective adoptive parents. Her natural parents had enjoyed supervised contact. The sheriff refused the order.

"There was evidence, which I can readily accept, that as children get older their care needs change. This is not a case where there is evidence that the respondents have sacrificed all capacity to care for a child of any age by, for example, dependence on drink or drugs or by a propensity for violence towards the child, or violence towards each other in the presence of the child and to her detriment - although there was evidence that there has been violence between the respondents. It may well be that the respondents could adequately care for an older child".

Thus the sheriff, despite having found that the parents were not immediately able to care for the child, concluded that he was unable to dispense with parental consent for adoption because he could not conclude that they were likely to continue to be unable to do so.

[189] In an appeal by the petitioners, the sheriff principal held that the sheriff had erred in his overall approach to the relevant statutory provisions. For present purposes, it is of greater interest to note the underlying justifications for his decision to reach a different view on the merits of the petition. He stated that "the essential requirements of a healthy childhood are permanence, continuity and stability" (para 15). An adoption policy review group report had advised:

"Delays carry very real risks for children. They suffer more disruption in change and more emotional damage. So permanence must be implemented quickly."

The sheriff principal regarded these observations as uncontroversial. The sheriff had felt unable to grant the application chiefly because he considered that a full kinship care assessment should have been completed by the petitioners and that, pending the completion of such an assessment, the possibility of the child being looked after by grandparents was an option that ought to be fully explored. The sheriff considered that it was better for the child that she should, for the time being, remain subject to the current supervision requirement, and that her future should be determined by the children's hearing within the limits of their authority. At para 17 the sheriff principal expressed the view that

"far from leading to a speedy resolution of the measures to be taken to secure, so far as possible, permanence, continuity and stability for CW, the sheriff's decision to refuse the application means that this resolution has been deferred for an indeterminate length of time, and certainly for as long as CW remains subject to a supervision requirement imposed by the children's hearing."

Later in his opinion the sheriff principal noted that the child had been in the care of the prospective adoptive parents for a period in excess of 13 months and that to remove her now from their care would run the risk, which he considered would be a substantial one, of causing her "significant psychological damage." The sheriff had noted that there had been no evidence that a significant change in the care arrangements for the child would have a seriously detrimental effect. Thus a kinship care assessment with a view to the possibility of the child being looked after by grandparents should not be ruled out on that account. However the sheriff principal, under reference to observations of Lord Simon of Glaisdale in A v B and C 1971 SC (HL) 129, held that there was no requirement for expert evidence, and that it could readily be understood that to remove CW from the care of the prospective adoptive parents, in which she was thriving, and transfer her at some future date, as yet unknown, to the care of persons who were effectively complete strangers to her would be likely to be seriously detrimental to her.

[190] If regard is had to the whole of his opinion, it is clear that, in the particular circumstances of that case, the sheriff principal was motivated by many of the same considerations which have driven various panel members, social workers and other experts to conclude that, notwithstanding the considerable progress which has been made in recent months by the respondent and the child's father, the child's need for continuity and stability in the future should take priority. In other words, looked at solely through the prism of the child's medium and long term welfare, in the absence of something obviously better for her, to upset the current arrangements and plans would be likely to cause serious detriment of the kind envisaged in the legislation. As will become apparent, so far as this case is concerned, I have formed similar views.

Decision
[191] In addressing the statutory tests, I have sought to apply the guidance in the cited case law, not least that in S v L. There are some unusual features in this case. The fact that it involves a prospective kinship adoption is not so uncommon, but it has triggered complicating factors. At the time the decision was taken to move towards permanence and adoption, the parents were still in the grip of illicit drug abuse, and were suffering all the adverse consequences of such a habit. The passage of time has afforded the parents the opportunity to make major strides in overcoming their addiction. However no one has suggested that the child's father is either now, or in the future, likely to be of a mind or in a position to care for the child. Though he does not consent to the proposed adoption, he has not opposed the petition. He has not given evidence. The respondent is in a different position. She wants to unite her family, and it is clear that if she became pregnant again, she might well be allowed to keep a new baby. Furthermore there is a real prospect that, in the not too distant future, she will be given the major share of the responsibility for her son J, who is a full sibling of the child. In these circumstances it is wholly understandable that the respondent finds it difficult to understand why the child should now be adopted by JH and SH. However, all the professional opinion and the consistent advice from independent panels is that this is what should happen.

[192] The fundamental reason for the view that the adoption should proceed is the attachment which the child has formed to JH and SH, who have cared for her since birth. She regards them as her parents. The child will soon be two years of age. The choice is to recognise and formalise the only family situation she has known; to leave matters in a state of continuing uncertainty; or to move now to rehabilitation with her mother. I have already recorded in detail the progress of the case through the social work department and the various reviews, panels, etc; and also the opinions of the social workers and a child psychologist. Dr Edward stressed the potential for real damage to the child if her current very settled situation, which has served her well since her earliest days, is disturbed. She is being brought up on the other side of the country from the respondent and her family. Given the conflicts in the family, this geographical separation may well be an advantage.

[193] The reality is that the child has been fully accepted into the family of JH and SH. The attachment is secure and there are no concerns for her if she is left with JH and SH, nor for their ability to look after her and give priority to her best interests, including, if practicable, maintaining meaningful contact with her birth family. Despite all the problems and tensions which the placement has caused, SH and JH have proved to be robust and resilient in their concern for the child and intention to adopt her. My impression is that they cling to the hope that if the child is placed with them on a formal and permanent basis, her birth family will, in time, come to accept this, and thereafter the family dynamics may improve to a sufficient extent to allow SH and JH to facilitate and foster the development of a relationship between the child and her brother, birth parents and wider family. For myself, I consider that such a hope is by no means unreasonable or unrealistic. Of course it will not be easy, but once the current "battle" is over, surely there must be a prospect of peace, or at least an acceptance of the court's decision and a general determination to focus upon the child's best interests. Although I did not hear evidence from the child's father, the information before the court suggests that he may find this particularly difficult. I have fewer reservations about the ability of the respondent and her mother to react in a positive fashion once the court process is over. Whatever the outcome, there will remain every incentive for the respondent to maintain her new lifestyle, not only because of her son, but also with a view to her longer term relationship with the child.

[194] Having had regard to the decision of the Inner House in S v L, I consider that there is no merit in Ms Clark's submissions under reference to article 8 of ECHR. My task is to consider and apply the statutory criteria set down in the 2007 Act to the relevant circumstances of this case. Firstly I ask myself whether the child's residence with either her mother or father would be likely to be seriously detrimental to her welfare. The child's father does not seek to care for his daughter. On the information before the court, and notwithstanding the admirable progress which he has made in recent times regarding his previous addiction to illicit drugs, so far as he is concerned I have no difficulty in answering this question in the affirmative. The real question relates to the respondent. It is true that Dr Edward was somewhat guarded in her terminology when answering this question. However, while fully appreciating that this and the other key questions are matters for the court to determine, I accept and agree with the main thrust of the evidence given by Dr Edward and Ms Baker. Setting that evidence, and all the other evidence, against the whole background of the case, I am of the view that it would be seriously detrimental to the child's welfare if she were to reside with her mother. She has always lived with SH and JH. To uproot her now would be a huge wrench for the child, and in my opinion would be seriously damaging in itself. Furthermore, while the concerns regarding the respondent's lifestyle have abated, they have not gone away. In the meantime the passage of time has strengthened the attachment between the child and her carers, and has increased the importance of an end to the ongoing uncertainty. What the child needs now is a permanent, secure and stable home. SH and JH have provided that, and will continue to do so for as long as is necessary. The respondent remains untested as a full time parent. She is on a methadone programme, and the evidence of her current drug worker did highlight that the respondent's future is by no means free from uncertainties and potential pitfalls. Dr Edward referred to evidence indicating that the wider family is "not fully functional" and appears to be unable to prioritise the child's needs. It would be disastrous for her if an attempted rehabilitation was unsuccessful, or if at some point in the future, the respondent relapsed to her former lifestyle.

[195] Counsel's submission that the respondent should be given more time to prove her ability to parent the child and J is a seductive one, but I am persuaded that any further delay and continuing uncertainty would, in itself, be undesirable and seriously damaging to the child. There is also a very real concern regarding the hostility and resentment harboured by the respondent, the child's father and KP in respect of SH and JH. Continuing uncertainty will do nothing to lay aside and resolve these destructive sentiments - and if rehabilitation were to be attempted, they could harm the child by undermining her view of and relationship with SH and JH, who would remain her aunt and uncle.

[196] It is obvious from Dr Edward's discussion in her report, and from her oral evidence, that she has significant concerns for the wellbeing of the child should she be returned to the respondent. Dr Edward is unwilling to say that serious detriment is inevitable. That strikes me as proper caution on her part. However, her overall conclusion, with which I agree, is that to destabilise the primary attachment between the child and her carers would be difficult for the child and likely to cause her serious damage. As one would expect, in Dr Edward's view the child does not perceive the respondent as her mother. Dr Edward states in her report that

"there would appear to be no significant benefit, but considerable cost to the child in removing her from her current home and attachments in transferring her to other carers, particularly while SH and JH are willing and able to offer her a permanent placement".

I agree with this.

[197] The fact remains that the respondent is the child's natural mother. That is an important factor which I and others involved have taken fully into account. However the legislation requires the child's welfare to be the paramount consideration. Any desire to renew the biological link cannot supersede that primary focus. Her future must be determined by her own best interests, which, in my opinion, require that the court grants a permanence order with authority to adopt. Adoption by SH and JH does not necessarily mean that the child is cut off for all time from her birth family. It secures her placement with SH and JH and, as Dr Edward put it, provides "the maximum amount of security for the child within that placement." This would "be to the benefit of the child's emotional development." SH and JH would then have full responsibility for the child and for the decisions to be made in respect of her future. They have consistently said that they will be amenable to appropriate contact with the child's natural family, so long as they can be assured that this will not damage her, for example by undermining SH and JH. They are particularly mindful of the desirability of an ongoing relationship between the child and her brother, and they are prepared to take advice from professionals with regard to how such matters can be managed.

[198] My view is that a permanence order will safeguard and promote the welfare of the child throughout her childhood. While the respondent and others have expectations based upon their biological relationship with the child, I have held firmly in mind that the child's welfare is paramount. The focus must be on her, and on her interests. The likely effect of the order on the child, especially if authority to adopt is attached, is that it will have all the beneficial effects which I have mentioned. The evidence has persuaded me that the making of such a permanence order is markedly better for the child than if there is no such order.

[199] Against this background, it will be no surprise that I have also concluded that it would be better for the child if the permanence order included authority for adoption, and that this is preferable to the absence of any such authority. Furthermore, for all the reasons given, in my opinion the welfare of the child requires the consent of her parents to be dispensed with. Having formed that view, it is not necessary for me to dwell upon the other possible ground for dispensing with the mother's consent. However, if I had required to address that matter I would have been unable to conclude that in the future it is likely that the respondent will be unable to care for the child.

[200] In reaching these decisions, I have had regard to the need to safeguard and promote the welfare of the child throughout her life as the paramount consideration. Section 14 of the Act specifically refers to the value of a stable family unit in a child's development. The desirability of continuity, permanence and stability is one of the main justifications for the orders sought by the petitioners.

[201] All of this will be a very considerable disappointment and blow to the respondent, and also to her mother and wider family. If and when the child comes to read this judgment, she should understand that her mother has made wholly admirable progress in overcoming the major problems which caused her placement with SH and JH in the first place. I am in no doubt that, in large measure, these achievements have been driven by a desire on the part of the respondent to care for her son and daughter. I hope that by the time the child is old enough to read and understand this judgment, she will have a relationship with all of her family, including her parents, brother and maternal grandmother. She will also appreciate that, rather than the emphasis being on negative factors, the decision to authorise her adoption by SH and JH has been taken primarily because of the positive benefits of allowing her to be nurtured and to thrive in the same loving and secure environment which she has enjoyed since her birth.

[202] In my opinion the best way to secure and protect these positive benefits is for the court to make no order regarding contact, but to encourage SH and JH, the respondent and her mother, aided by professional help from the authorities, to lay aside their personal feelings, accept the decision which has been taken, and work together in a spirit of co-operation so that the child can develop an appropriate and beneficial relationship with all her family members, including her brother. I am optimistic that in due course this can be achieved, but it will involve a degree of self‑sacrifice on the part of all involved and a commitment to giving priority to the child's best interests.

[203] I do not consider that I can draft a contact order now which would best promote this outcome. It can come only if SH and JH have the confidence that others will support, not undermine their status as adoptive parents. I agree with Dr Edward's observation that it would be to the child's developmental benefit if she could maintain relationships with her birth mother, grandmother and brother (I would add her father), but that it is "essential" that these relationships are conducted in a positive and constructive manner for the child and J. The court cannot order that attitude and general approach, it can only encourage and invite all concerned to put aside their differences and work towards that goal. If nothing else, it should provide more than sufficient motivation to the respondent to maintain her excellent progress in overcoming her previous problems.

[204] Finally I wish to record my thanks and appreciation to the professional persons who offered their advice to the court, and especially to Ms Baker who took the main brunt of explaining the lengthy and complex background, and to Dr Edward, who responded to the joint instructions within a short period, and after giving these difficult issues careful and thorough consideration. I am also grateful to counsel for the professional and efficient manner in which they conducted the proof and for their helpful submissions on the facts and the law. I shall pronounce an order in the terms sought by the petitioners, all as outlined at the start of this opinion.