PETITIONS OF CITY OF EDINBURGH COUNCIL FOR PERMANENCE ORDERS UNDER SECTION 80 OF THE ADOPTION AND CHILDREN (SCOTLAND) ACT 2007 IN RESPECT OF THE CHILDREN AMDS AND SDS AGAINST LL [2021] ScotCS CSOH

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITIONS OF CITY OF EDINBURGH COUNCIL FOR PERMANENCE ORDERS UNDER SECTION 80 OF THE ADOPTION AND CHILDREN (SCOTLAND) ACT 2007 IN RESPECT OF THE CHILDREN AMDS AND SDS AGAINST LL [2021] ScotCS CSOH_24 (05 March 2021) URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_24.html Cite as: [2021] ScotCS CSOH_24, [2021] CSOH 24, 2021 GWD 11-149

OUTER HOUSE, COURT OF SESSION

[2021] CSOH 24

AD26/19 & AD27/19

OPINION OF LADY WISE

In the petitions of

CITY OF EDINBURGH COUNCIL

Petitioner

for

Permanence Orders under section 80 of the Adoption and Children (Scotland) Act 2007

in respect of the children AMDS and SDS

against

Respondent

Petitioner: Inglis; City of Edinburgh Council

Respondent: Aitken; Lisa Rae & Co

5 March 2021

Introduction

[1]

This is a single opinion in respect of two applications for permanence orders both at

the incidence of the City of Edinburgh Council. The two children who are the subject of the

proceedings, AMDS and SDS are both girls. I will give them fictitious names to help give

them identities as individuals for the purpose of this opinion. The elder girl is 7½ years old

and I will refer to her as Amy. The younger girl is 6½ years old and I will refer to her as

Sarah. They are both children of the respondent to whom I will refer as either LL or the

respondent. I presided over a proof in this matter although unusually the principle of a

permanence order being granted was not opposed. The issue of principle raised was

whether or not, in the particular circumstances of these cases, the Compulsory Supervision

Order ("CSO") in respect of each girl should be revoked as it normally is on the granting of a

permanence order. There are also issues about how best to regularise the information to be

given to the respondent in future as part of managing any future contact between her and

the girls against a background of her mental health challenges.

Undisputed facts

[2]

The parties lodged a detailed joint minute of admissions (number 106 of process)

summarising the undisputed factual background. What follows is taken largely from that

helpful agreement. Amy was born in April 2013 and Sarah in August 2014. The respondent

is mother to both girls and her former partner was their father. He died in 2018. The

respondent has a son by a previous relationship to whom I will refer as Simon. He was born

in October 1998. Simon's father was a man to whom LL was married at the time. Simon

was accommodated by the petitioner between 2006 and 2011 due to his parents' misuse of

drugs. Both Simon's father and the girls' father died as a result of drug abuse. LL herself

has reported beginning to take unprescribed drugs at the age of 14 years. Her relationship

with Simon's father involved chaotic drug use, frequent separations and violence. In 2003

she sought social work support with Simon's alleged violent behaviour. Simon was

subsequently accommodated by the petitioner with the approval of the children's hearing

due to parental drug abuse, poor parenting, lack of stability and consistency and

behavioural needs. After the death of her husband in 2010 LL began a relationship with the

girls' father, PS, which was also characterised by drug abuse and allegations of domestic

violence. LL was referred to social work in November 2012 during her pregnancy with

Amy. At the time of referral, she appeared to be consuming only methadone and diazepam

prescribed to treat her drug addiction. By early 2013 she tested positive for heroin. Amy

was born with Neonatal Abstinence Syndrome Score. She was discharged into LL's care

with monitoring and support by a team working with drug using mothers. When Sarah was

born, PS was present and he was registered as the father on her birth certificate.

[3]

In July 2015 a social worker visited LL in response to concerns about PS's role with

the children. LL denied that he was Sarah's father. On 26 January 2016 LL attended her

general practitioner and alleged to him that Amy had been sexually assaulted by LL's own

father. A medical examination was inconclusive. LL gave assurances that she would allow

no further contact between Amy and her own father. When interviewed by the police on

24 July 2016 LL alleged that Amy's father (PS) had sexually assaulted Amy. On 3 August

2016 Amy was medically examined but the outcome of that examination did not support

any allegation of sexual assault. Amy and Sarah's names were entered on the Child

Protection Register in August 2016. In consequence of increasing concerns about LL's

mental health a Child Protection Order was sought and obtained on 14 August 2016 and

both girls were placed with foster carers. In December 2016 the children were removed from

that placement because the carers could no longer manage their behaviour. A new

placement was found. LL was admitted to hospital at 4.00am on 21 March 2017 with a

suspected overdose. She claimed to have taken a friend's medication in error. On 30 March

2017 a toxicology screening of LL showed positive results for cocaine. LL refused to

participate in any further tests until 7 November 2017.

[4]

LL was assessed in or around May 2017 by a consultant psychiatrist who concluded

that her behaviour was caused by drug abuse rather than a diagnosable mental health

condition. On 16 June 2017 a sheriff at Edinburgh having heard evidence found the grounds

of referral established in respect of both girls. On 16 June 2017 LL contacted the Child

Exploitation and Online Protection Command. She alleged that her phone was being

hacked and she was being sent images of children being mutilated. A few days later she

alleged to a worker that her children had been cloned and those who the local authority

were saying were her children were not in fact hers. She repeated that she had been sent

graphic images of child abuse which she claimed the police were not pursuing seriously. On

20 July 2017 LL attended a police station where she showed officers images of her children

and alleged that their eye colour had been altered. She alleged also that she was being sent

pictures of dead children.

[5]

The children's hearing removed a requirement that LL's contact with her children be

supervised in November 2017 so that an assessment could be made as to whether

rehabilitation of mother and daughters was viable. The following day LL underwent a

toxicology test which disclosed dihydrocodeine and cocaine as well as prescription

medication. She was observed to be smelling of alcohol when attending the surgery. Later

that month during a home visit the social worker, Maya Cronin, observed a pipe of the type

used to smoke crack cocaine, a lighter and a razorblade all within reach of the children. LL

claimed that these had been used by visitors after she had retired to bed. A subsequent

toxicology analysis was positive only for prescription medication. In December 2017

Maya Cronin and the girls' foster carer discussed a planned rehabilitation of the children

with LL. Later that month Amy was delivered to nursery by LL carrying a tin of lip balm

which contained a substance that LL later admitted was dihydrocodeine. Amy told a

nursery worker that they were her mother's tablets. As a result of this incident LL's

unsupervised contact with the children was withdrawn.

[6]

On 3 February 2018 LL's mother contacted police because she was concerned about

her daughter's mental health, reporting LL to be obsessed with hurt and abused children.

LL was admitted to the Royal Edinburgh Hospital that day and remained there for just over

a month. She was observed to drink alcohol on the ward and was prescribed antipsychotic

medication, methadone and diazepam. About a month after her release from hospital LL

contacted police and alleged that her children had been cloned and were victims of human

trafficking.

[7]

A local authority permanence panel resolved in May 2018 that Amy and Sarah were

in need of permanent care outwith their birth family. The following day, the girls'

placement with their foster carers ended because the carers were unable to continue to

manage their behaviour. New foster carers, Mr and Mrs H, were found. LL's supervised

contact was reduced to monthly at the same time. Thereafter, the foster mother reported

that Amy was very aggressive towards Sarah and that there was regular fighting between

them. Amy's nursery also reported a number of aggressive incidents involving her. At a

permanence review on 22 August 2018 on the recommendation of Dr Katherine Edward it

was agreed that the children should be placed separately. A few weeks later Amy alone

moved to live with Mr and Mrs C.

[8]

Throughout 2019 LL uploaded film onto YouTube in which she repeated allegations

that the girls had been cloned and trafficked. These posts included pictures of the children

who were named, and a medical report from Community Child Health. In March 2019

Mr and Mrs C informed Ms Cronin that they could no longer manage Amy's behaviour and

she was moved to another couple for respite care. Sarah has remained with Mr and Mrs H.

In April 2019 LL's flat was raided by the police who found cannabis with a street value

of £1,000. It appeared that the flat was occupied by her son Simon. LL was taken by police

to the Royal Infirmary of Edinburgh on 25 May 2019 where she was admitted with psychotic

symptoms. During her stay in hospital she admitted taking alcohol, cocaine and

non-prescribed Valium. She was discharged on 31 May 2019.

[9]

The children's hearing approved Amy's long-term placement with a Mr and Mrs CO

on 3 June 2019 and contact between LL and both girls was withdrawn. Since May 2019 LL

had been prescribed and has been taking an opiate blocker called subutex. She has been

randomly tested for unprescribed drug use on seven occasions since then. The results of all

those tests have been clear in respect of use of any non-prescription drugs. LL now engages

with her community psychiatric nurse once per month. She has engaged with the recovery

program "Change Grow Live".

[10]

Mr and Mrs CO have advised the social work department that they cannot commit to

caring for Amy until adulthood. In September 2020 Mr and Mrs H advised the social work

department that they do not wish to be approved as long term foster carers for Sarah. On

30 October 2020 Amy saw her mother LL for a period of direct contact.

Evidence led at proof

[11]

The petitioner led evidence from Maya Cronin a qualified social worker since 2006

and a team leader of one of the Edinburgh social work areas. Ms Cronin spoke to her

affidavit number 102 of process. After correcting an error as to the contact date in

October 2020 she adopted her affidavit as her evidence. Ms Cronin confirmed that she is the

author of the statutory reports in this case which she also confirmed were true and accurate.

So far as the current situation is concerned Sarah remains with Mr and Mrs H although the

social work department is looking for alternative carers for her. Amy remains with Mr and

Mrs CO meantime.

[12]

Ms Cronin confirmed that the one recent direct contact session between Amy and her

mother had taken place following the recommendations made by the two psychologists

Dr Katherine Edward and Dr Lucie MacKinlay. The session seemed to benefit both mother

and daughter and Ms Cronin thought it was in the best interests of both Amy and LL that, if

they continued to be relatively settled, a further direct contact session be arranged. She

could not commit to a specific timeframe given that both Amy and LL have been impacted

significantly by trauma which could re-emerge at any time. This was all thoroughly

documented in the reports and not disputed. The next contact session could take place

within a few months if the position remained settled and after she had spoken about it to

both Amy and to LL's community psychologist. Maya Cronin was aware that LL has a

positive relationship with her community psychiatric nurse Carol Finnigan. LL engages

really well with her and this has been a very positive development. Maya Cronin had asked

Carol Finnigan if she would give a view on LL's mental health so far as future contact was

concerned and she had indicated that she would be happy to do that from time to time. If

the social work department was organising future contact the plan would be that about a

week before any planned session a view would be sought from Carol Finnigan and from LL

herself.

[13]

Ms Cronin felt that if Amy and Sarah were left within the children's hearing system

it would have a detrimental impact on them and undermine their sense of permanence. She

did not want that for them. The social work department had successfully managed to have

the girls excused from children's hearings to date but as they get older there would be a

greater expectation that they would attend. Ms Cronin was firmly of the view that it would

be inappropriate to keep the girls within that system. On the exchange of information

post-permanence, the witness confirmed that it was generally considered appropriate and in

the best interests of both the children and any parent for this to happen. She considered that

LL had a right to ongoing information and that she genuinely cared about the girls and

needed reassurance that they were doing well. Ms Cronin has suggested that LL receives a

letter once or twice a year from the allocated social worker updating her on relevant

developments in respect of each child including their experiences at school, their contact

with each other and also that they have received birthday and Christmas presents sent to

them. In recent times, LL has telephoned Ms Cronin occasionally to ask how the girls are

and there is no difficulty with that. On other occasions Ms Cronin will take the initiative.

[14]

Under cross-examination Ms Cronin accepted without question that each individual

child is different with different needs and that bespoke solutions were required. Any

outcome had to promote the girls' best interests. The hope was to promote feelings of

stability and predictability in the girls and find continuity in their care arrangements such

that they will be able to form a secure attachment with future carers. Ms Cronin was not

prepared to say that it was atypical that after a break of 18 months contact had resumed

within weeks of a proof diet. The background was that Amy and Sarah had originally had a

high level of contact with their mother but the 18 month break had made a big difference for

Sarah. While LL was in a different and better place than she was in the spring of 2019 the

children's views and needs had changed and appropriate action had been taken in their best

interests. When Amy had expressed a view to Dr MacKinlay that she would like to see her

mother Maya Cronin had been happy to implement that. When pressed, the witness was

willing to accept that the situation was unusual. Looking ahead her position was that she

and her department would like to see Sarah also having contact with her mother. She

accepted that there was an unusual level of uncertainty in relation to their future placements

and she would have wanted them to be placed permanently by now. Sarah will of course

have to move on from Mr and Mrs H who had been assessed as permanent carers and had

previously given the message to Sarah that she could stay there until adulthood. Sarah has

not yet been told of their change of heart because the department does not know where and

when she will be leaving. She may have picked up some clues as she is currently quite

anxious. She is incredibly invested in her present carers and has claimed them and so it may

be difficult to ask her to claim others. The tentative plan is to move her to open ended foster

care that has the possibility of becoming long-term.

[15]

Unlike Sarah who has been in the same placement since 2018, Amy left Mr and

Mrs H in October of that year and then went to Mr and Mrs C and then to Mr and Mrs C O.

Both girls have been in several placements and further changes cannot be ruled out. The

witness accepted that she was unable to say where Sarah would be living in 4 months' time,

whether her educational provision would alter and whether she would be in the same or a

different geographical area. The department was very committed to sibling contact. This

takes place monthly but there could be an impact on that when Sarah is moved if she is

anxious. Possible and future carers for Sarah will be told that there could be parental

contact involved.

[16]

So far as Amy is concerned she is now doing well and they are very content to keep

her until new carers are found. They feel they are too old to commit to her long term care.

Amy knows that Mr and Mrs C O are not her carers forever although if she could choose she

would want to stay with them. Again the department is actively seeking new carers

although Ms Cronin could not provide a clear sense of when Amy would move and whether

or not it would be during 2021. They would try not to move her to anyone other than

people committed to providing permanent care for her. The placement will be Amy's sixth

since 2016 which was far more than the witness would have hoped. On balance Sarah will

be more difficult to place because she is so invested with her current carers. It will be easier

to place Amy although difficult to replicate the quality of care currently being given by

Mr and Mrs C O. Both girls may have to move school and lose peer groups and friends and

extracurricular interests, although ironically this was less of a concern at the moment given

the very restricted activities during the coronavirus pandemic. In essence Ms Cronin agreed

that she could not say that the children's future is predictable or certain although they do

currently have secure attachments.

[17]

Ms Cronin was adamant that she had not given up on these girls attaining

permanent placements. They were still only 6 and 7 years old and the aim is to provide

them with the security and stability that permanent care would bring. While the granting of

a permanence order cannot create a placement it will have other benefits. LL's life was still

unpredictable although it was very positive that since May 2019 she had been stable in terms

of drug use and had fully engaged with workers. Otherwise the recent reintroduction of

contact with Amy would not have been successful. Permanence orders for girls of this age

contrasted with orders made for much younger children. Amy knows LL as her mother.

Ms Cronin thought that both girls would seek out their mother on social media if there was

no contact of any kind. In her experience the longing for an absent parent becomes stronger

in the teenage years. One of the ways in which they could be helped to understand her

mental health was to see her if that was practicable. An exchange of information about what

was going on with the girls was important both to LL and to the children themselves.

[18]

Ms Cronin had worked in previous cases where parental responsibilities and rights

are shared as between the local authority and foster carers. She had a broad understanding

of how this worked. When asked what she meant by stating in her affidavit (at

paragraph 11) that LL "has a right to information" she confirmed that even after the

granting of the permanence order LL will be provided with written information once or

twice a year and verbal information when she needs it. When she used the word "right" she

intended to mean that there was no dispute that this will happen. She accepted that the

social work department would select or filter the information so that it focused on the

different important areas of each child's life. Although LL had not been attending Looked

After Children Review meetings ("LAC reviews") Ms Cronin always asks her what she

would like to know from those meetings and feeds back the information to her. All of the

important things are covered. It was suggested to the witness that if LL received a copy of

the child's plan and/or was able to participate in LAC reviews she would have all the

information and know of what issues she wanted to raise. Ms Cronin said that she required

to prioritise the best interests of Amy and Sarah. Although LL does receives the child's plan

in the minutes of the LAC reviews at present the social work department will not do that in

future unless ordered to do so by the court.

[19]

The local authority's preferred outcome would be that following each LAC review

LL will be telephoned with the independent reviewing officer advising her what has

occurred. Ms Cronin is open to a flexible working arrangement in future whereby if LL

highlights what she wants to hear everything will be done to provide her with the necessary

information. For some years LL had a difficult working relationship with the social work

department following her son being accommodated. Ms Cronin has built-up a good

relationship and feels she can work with her. Ms Cronin had kept the case after becoming

team leader 3 years ago and will seek to maintain that continuity. If she requires to hand the

case over it will be to a member of her own team. LL had made a lot of complaints against

the department and there had often been a reason behind those complaints. On each

occasion Ms Cronin had looked at the complaint and if something had gone wrong she had

apologised. It had been a process of gaining an understanding of LL's mental health. Her

community psychiatric nurse talks of "fixed ideas" and there had been times when LL had

pursued these to the point of "bubbling over" but this was not always meant

antagonistically.

[20]

Ms Cronin was clear that LL understood that the granting of the permanence orders,

which she had now accepted should be made, will be the end of her decision making power

as a parent. She still wants to be involved in discussions thereafter but has acknowledged

that she will not be the decision maker. It would benefit the girls' welfare for them to have

more information about their mother and her mental health. Over the last year or so LL has

started to recognise how her mental health can impact on the girls. The hope is to help her

understand why the children had to be removed from her care. In 2019 LL had posted

YouTube videos claiming that the children had been removed from her unjustly. She could

not seem to see how that might be perceived by the girls when they can access social media.

She has now removed these from the internet and now wants to understand the impact her

mental health can have on the girls.

[21]

The witness intended no criticism of LL for wanting to be involved in discussions

about her children in future and to receive information. The background however was of

uncertainties with the girls' placements and considerable uncertainty about LL's future

mental health. Ms Cronin could not accept that it would be in the best interests of the girls

for LL to be part of the decision making process. She had explained in her affidavit

(paragraph 12) the difficulties that have arisen with LAC reviews. Although LL has made

good progress now, there had been police reports in both July and October 2020 with

cannabis being found in her home. That should not detract from the overall improvement

that LL has made. When the witness reported in December 2019 she could not see that

direct contact between LL and the girls could happen. Then in May 2020 when she spoke to

Dr Edward she still was not planning for any such contact but it had not been ruled out. It

was in about July 2020 that Amy started expressing a wish to see her mum. She attended a

LAC review in August 2020 and expressed that wish. She had received lovely gifts from her

mum in April and had been at home during the pandemic and had time to think about

things. Then in September 2020 Dr Edward and Dr MacKinlay together had concluded that

if LL remained well direct contact could take place. Ms Cronin had found Dr MacKinlay's

report really helpful. She recognised that mental health was the primary issue for LL rather

than drug use. The drug use had gone alongside her mental health for some years but not

really since September 2019. Dr MacKinlay had also assisted Ms Cronin's understanding

that LL's mental health issues would not go away and had to be managed. Amy had been

given several opportunities to discuss contact and her mum, her brother and her

grandmother were often mentioned when she was looking at her memory box. There would

be no difficulty with the promotion of contact where appropriate.

[22]

The clear position of the local authority was that if the permanence order was

granted they would not intend to invite LL to future LAC reviews but she would

nonetheless have some input. Ms Cronin would call and speak to her in advance and would

also speak to the community psychiatric nurse. The children's hearing system if it continued

would be a bit different. LL would be there with legal representation and would give an

account of her circumstances. The difference between the two processes was really that the

social work department did all the preparation for a LAC review but in the children's

hearing system the parent could ask others to prepare reports for submission. For example

LL could ask her community psychiatric nurse to prepare a report for the children's hearing.

A LAC review took the form of an update on the children's circumstances whereas a

children's hearing was focused on what measures of care the children needed and also took

into account what parents sought. The general position was that after the permanence order

has been granted the social work department just accepts that they will not have information

from the parent for a LAC review. This particular case was different in that the intention

would be to contact LL before each LAC review.

[23]

It was put to the witness that in essence the social work department wanted to

control what LL is asked, what she is told and to deprive her of participation in LAC

reviews. The witness pointed out that there is an independent chair for the LAC review

who presides over the meeting and the minutes; the purpose is for the local authority to

ensure that the children are getting what they need. Ms Cronin had never been involved in

a permanence order where the children's hearing was involved after the order was made. If

that was to happen, LL would be able to put in her own reports for hearings but if she

wanted to do that for LAC reviews as well that could be considered. To keep Amy and

Sarah in the children's hearing system would perhaps benefit their mother but not them.

The local authority was best placed to make decisions and the children's hearing,

comprising panel members who do not know the children, would not be better placed. The

children's hearing could not assist in finding carers for two very traumatised children.

[24]

Ms Cronin accepted without hesitation that without the present proceedings and the

expert witness input there would have been no contact between the respondent and Amy in

October 2020. She disagreed, however, that such matters could not be left to the discretion

of the social work department in future. It was her department that had commissioned a

report from Dr Edward initially and found it helpful and might well instruct a further one in

due course. She could understand why the respondent had expressed a view that following

the granting of a permanence order she might be shut out and that contact simply would not

happen but she disagreed with that view. Contact between the respondent and the children

had been terminated by the children's hearing because it was having a detrimental effect on

the girls. By March 2019 the respondent had failed to attend a children's hearing on six

occasions. While on at least one of those she was in hospital she had also been in England

and able to make the YouTube videos she had posted and on a different occasion had said

she was on holiday. In January 2019 the children's hearing had noted her non-attendance

and recorded that it was not in the children's best interests to defer the matter again.

Ms Cronin was pleased at the progress that the respondent had made over the last year or

so, but the position in 2021 and 2022 could not be predicted.

[25]

When it was put to Ms Cronin that the benefits to the children of remaining within

the children's hearing system were (1) the involvement of independent decision makers,

(2) that decisions would accordingly be properly informed by the mother's participation

with the benefit of legal representation, (3) that the only real issue for determination by the

hearing would be contact and (4) that the children's hearing could control the nature and

level of assessment by ordering reports, Ms Cronin disagreed. She stated that it was not just

that she was relying on her own input, but the school, the carers and all those involved with

Amy and Sarah would feed into discussions about who the girls see and where they live. A

number of traumatic changes in the past have left these children with no sense of belonging

and so she felt strongly that a permanence order was required for them so that the

uncertainty of decision making would be "off the table". Ms Cronin had no experience of

there being children's hearings post-permanence but the local authority's duty was to put

the children first and they could do that without the involvement of the children's hearing.

[26]

In re-examination Ms Cronin reiterated that the professionals currently involved

were in her view best placed to make decisions for Amy and Sarah including decisions to

promote their mental health. While a permanence order itself would not help the local

authority find families for the children it would mean that there was no need to ask for

permission when they require to be moved. Timely decisions could be made. Similarly on

the issue of contact, discussions would take place with the carers, the respondent and with

professionals involved with the children but the decision should be left to the social work

department. It was understandable that the respondent would always want as much contact

as possible but what she wants and what the girls need do not always coincide. Having to

attend children's hearings would create anxiety for Amy and Sarah because in future they

would be expected to participate. It would be very hard for them to express views about

contact in the presence of their mother. While in the period up to about 2018 the children's

hearing had been the correct decision making forum the local authority was now asking the

court to decide who should make those decisions in the longer term.

[27]

Dr Katherine Edward, clinical psychologist, also gave evidence for the petitioner.

Her first report, dated 2 August 2018 included her résumé. Dr Edward is a psychologist of

very considerable experience who has assisted the court on many occasions as a skilled

witness. She adopted her first and second reports as part of her evidence. Matters had then

moved on and she and Dr MacKinlay had prepared a joint report dated 11 September 2020.

Having adopted that third report as part of her evidence Dr Edward confirmed that it had

come about after a request to consider a route map for contact with a view to responding to

the respondent's concerns and mistrust of the social work department to facilitate contact.

Having discussed matters at length Dr Edward and Dr MacKinlay agreed that whatever had

happened in the past, moving forward an expectation of direct contact between each of Amy

and Sarah and their mother at a frequency of twice per year would be to their benefit. It was

acknowledged that this would likely take place sooner for Amy who was older and had

already expressed interest in such direct contact. If contact could be agreed, Dr Edward was

aware of the respondent's engagement with Carol Finnigan, her community psychiatric

nurse and would expect that Ms Finnigan could give a good response if asked about the

respondent's presentation. She would be an extremely suitable person to help inform the

social work department about the viability of direct contact on any particular occasion.

Dr Edward was confident that the social work department would facilitate contact in a way

that coincides with the interests of both girls. The pattern that would be established was

that very close to any planned contact an assessment of the respondent's mental health

would have to be made. If there was any sudden deterioration, no contact could take place.

Dr Edward and Dr MacKinlay had also concluded that following the completion of at least

two successful direct contact sessions, an independent assessor would require to be involved

in the event the social work department had deemed that direct contact would not be

appropriate on any given occasion.

[28]

Under cross-examination Dr Edward agreed that when she had prepared her first

report she did not envisage direct face-to-face contact would take place between the

respondent and her children in the foreseeable future. Such contact as there had been in the

past was unsupportive of the girls' placement at that time. Her report in 2018 had indicated

that future contact might be possible but no prediction of when or how could be made

because the respondent's presentation was really concerning. There had also been the issue

of whether the girls should stay together. In May 2020 the purpose of her second report had

been to consider what the position was in relation to contact at that time. Dr Edward had

not seen the respondent and so was not looking at her presentation, she was addressing the

significant shift in the circumstances of both girls. She knew that there had been a number

of changes in the respondent's circumstances too but she was focused on the girls' situation.

Dr Edward agreed without hesitation that as Dr MacKinlay had met the respondent on five

or six occasions she may have gained more detail than Dr Edward had of LL's circumstances

and ability to engage in contact. However Dr Edward remained able to form a view of the

needs and presentations of the girls which is the first stage in considering contact. If contact

would be detrimental to them the mother's presentation would not matter. Sarah had

responded badly to indirect contact and although there was more scope for direct contact

with Amy the point where that could actually happen had not been reached by May 2020.

Dr Edward had been made aware that Amy was going to ask Ms Cronin if she could see her

mother after lockdown but she did not have a sense of when Amy had first expressed that

view. There was no suggestion Amy was fixated about seeing her mum and did not speak

of it regularly but she had raised it. Dr Edward became aware of it in mid-May when the

country was in the middle of a lockdown period and so it did not seem to be an imminent

possibility.

[29]

Dr Edward was aware by the time of proof that a session of direct contact with Amy

had taken place and she understood that it had gone well. It had been a positive experience

for both mother and child. While in May 2020 she had not been clinically convinced that it

was the right time for direct contact things can change quickly especially for these girls.

When Amy said she wanted contact the social worker assessed it and it happened.

Dr Edward considered that was an example of the system working. She thought that it

would be appropriate to consider a further contact session about 6 months after the first one.

If Amy was keen and the mental health professionals were supportive then it could take

place. She and Dr MacKinlay had discussed matters and agreed that at least for Amy

contact should be going ahead at this stage. What had happened between May and

September 2020 was that Amy's placement had been stable and 6 months of stability for

either of these girls was real progress having regard to the background. This resulted in

Dr Edward being more confident to recommend moving forward on contact.

[30]

The witness agreed that there were some differences between her and Dr MacKinlay

on the need for immediate contact as clinical judgment would not always come up with the

same answer. Dr MacKinlay felt stronger about contact happening more immediately but

by September 2020 there was no disagreement at all as things were looking more positive

and contact was more likely to be to Amy's benefit. A section from Dr MacKinlay's first

report of July 2020 (number 7/1 of process) was put to the witness where it stated that

terminating contact between a child and a parent as a result of the parent's mental illness

was inappropriate. Dr Edward agreed with that in general terms but might disagree that

such contact should always be direct as opposed to indirect. She described Amy as one of

the most disturbed young people she had seen. While some form of contact would always

be appropriate where possible, it would require to be carefully assessed and managed.

Dr Edward considered that it was exceptionally positive that Amy had now enjoyed one

face-to-face contact session and she hoped that this could continue. She would be mindful

however of the ever-changing circumstances for these girls when making any

recommendations for the future. Dr Edward is a clinical psychologist and she would not

draw conclusions based on the last 3 or 6 months but on the girls' entire lived experiences.

While she might present a more cautious view than Dr MacKinlay, neither psychologist

would promote contact if it was not in the children's best interests. She agreed that a

permanent termination of the relationship between mother and children would have a

negative impact but indirect contact would keep the relationship going. The issue was

whether direct contact could take place.

[31]

The witness tended to agree with Dr MacKinlay's view as expressed in her report

that it would be better to have contact between the respondent and the girls managed before

they choose to access her themselves through social media. Both psychologists had concerns

about how the girls would deal with this and felt they needed a good understanding of their

situation first. The best way of achieving that would be a lived experience of well-managed

direct contact although Dr Edward would not rule out that this could be done indirectly by

an explanation from the social work department. She agreed that the case was complex and

that it was not simply a situation where a parent who has been unable to care for children

has to relinquish decision making to the local authority. These children were traumatised

and damaged by parental care as a result of their mother's fluctuating mental health. Their

ability to manage placements has been affected by that. Dr Edward's involvement in this

case over 2 years suggested that this was not a situation where maternal contact with the

children would somehow be overlooked when placements change. She felt that the social

work department would continue to have the issue of contact front and centre of their

decision making.

[32]

There was some discussion about how it came about that Amy did not want to ask

Maya Cronin in relation to her desire for contact with her mum. Dr Edward could not

explain why Amy might have said to Dr MacKinlay that she did not want to tell

Maya (Cronin) but what was clear was that the social work department responded to a

request when one was made. She thought it was understandable that the social work

department had been cautious about the re-instigation of contact especially because of the

issue of the girls not being placed together and the knowledge that Sarah's placement would

not be long-lasting. In Dr Edward's view the issue of contact would always have to be based

on the girls' needs and presentation at the material time. If that meant contact was

appropriate mum's mental health would then have to be assessed. The shared conclusion of

Dr Edward and Dr MacKinlay (paragraph 9 of the joint report) was that it was appropriate

that the social work department would assess and facilitate contact but that the respondent

required additional assurance. If the court was to put in place a structure that would give

her that additional assurance that would be best but only an independent assessor could do

that. It could be seen as a check on the exercise of discretion by the social work department

although such an assessor would have to understand all of the information and the girls'

situation. If the assessor did not have sufficient information that would lead to additional

risk. In contrast social workers do not work alone but in a team and so the issue of whether

contact happened would not be at the behest of only one person.

[33]

In re-examination Dr Edward confirmed that she continued to be of the view that

future contact should be managed and controlled by the social work department. Her

impression was that the respondent was able to speak realistically about contact when she is

well and that she can, in that situation, respect the decision making process. When she is

unwell she loses that ability and cannot consider the girls' interests and becomes disordered.

[34]

Evidence was led in the respondent's case from the respondent LL herself. She

confirmed that she is 46 years old, that she lives in Edinburgh and does not work. She spoke

to her affidavit, sworn on 1 December 2020, which she adopted as part of her evidence. LL

confirmed that she had attended regularly at LAC reviews other than on occasions when she

was not well. That included an occasion just before the proof when she had required to

attend her GP. She had attended such LAC reviews as she was allowed to attend for Amy

but she had not been allowed to attend others. She received a phone call after a LAC review

for Sarah and she did receive feedback after the recent review for Amy. She felt it would be

much better to attend these reviews in person.

[35]

LL confirmed her view that if the social work department was to decide whether

there would be contact the result would be that she would be shut out of the process and no

contact would take place. This was based on previous experience. She felt strongly that if

Amy had not said to Dr MacKinlay that she wanted to see her mother then the direct contact

that had taken place would never have happened. As she had not yet seen Sarah at all she

was firmly of the view that if the decision was left to the social work department it might not

occur. Disputes would likely arise about whether she was well enough to see the girls and

she felt the social work department decision would be "biased". She agreed that it would

help if Ms Finnigan gave input into any plan for direct contact although she pointed out that

Ms Cronin had regular input from her CPN anyway. LL would prefer that a doctor not

attached to the social work department give an independent view. She named two doctors

who she sees regularly and considered that it would be more appropriate for them to

express a view on her state of mental health. She was conscious that a full 18 months had

passed without her seeing either girl and when she saw Amy at the end of October Amy

said that she had been asking to see her mum for a long long time. LL was aware that Amy

had said she did not want to tell Ms Cronin about her desire to see her mother. The

respondent found that quite worrying. She felt that the social worker should be the child's

first port of call if she had that desire. She could not say why Amy had felt unable to

approach Maya but it added to her concerns.

[36]

Under cross-examination Ms Cronin's statement about the positive nature of the

recent contact session and expression of desire for a future one in a few months' time was

put to the witness. LL agreed that this was a fair statement but she expressed doubt about

whether or not future contact would actually happen. If it was left up to the social work

department the next planned contact might be postponed or not happen at all. She

reiterated that contact would not have happened on this occasion without Amy having

spoken up to Dr MacKinlay. That said, LL accepted that it had been correct for contact to

have ceased for 18 months after she had put videos on YouTube without considering the

detrimental effect of these on the girls. She described her actions in that respect as "stupid".

She also acknowledged that the girls had been very unsettled after contact in earlier times.

The real change had come about because Amy was saying that she wanted contact although

LL felt that an arrangement could have been put in place earlier if Amy had been able to

approach Ms Cronin about it.

[37]

The period of direct contact itself was originally planned to take place for 90 minutes

but it was so successful that a visit of over 2 hours took place. Ms Cronin had fed back to LL

that Amy had not been unsettled with her carers after the contact period which she regarded

as great news. She acknowledged that the social work department had ultimately

recognised that Amy wanted to see her mum. She confirmed that Carol Finnigan has

regular oversight of her mental health and that she saw her at least twice a month. LL did

not think the social work department had spoken to Carol at all about the contact that had

taken place. The respondent accepted that if she was worried about anything in future she

would be able to call Ms Cronin. However, she was not clear whether a prompt decision

would be made in such a situation if she made contact about seeing her children.

[38]

LL acknowledged also that Ms Cronin had contacted her to tell her of decisions that

had been made at LAC reviews. Her worry was that in future the information was likely to

be filtered and that she may not get important things like school reports and medical reports

relating to the children. She would like to be updated on how the girls are so that she knows

what to talk about if she sees them. She felt it would be a pity if she did not receive

information from LAC reviews in the same way as she receives it at the moment. As their

mother she would like to know as much about the girls as possible.

[39]

In re-examination LL confirmed that in addition to seeing her psychiatric nurse she

also attends a group called "Change Grow Live", a community group led by a trained drug

worker. She had a 100% attendance record at these sessions although some had now been

postponed due to COVID. LL explained that she understood that the effect of the

permanence order being made would be that she would lose nearly all of her parental

responsibilities and rights and that Ms Cronin would not have any legal obligation to

update her after each LAC review.

[40]

The final witness led was the psychologist Dr Lucie MacKinlay who had prepared a

joint report with Dr Edward. Dr MacKinlay confirmed that she is a chartered clinical

psychologist with the NHS working exclusively with looked after children and that she also

has a private practice. Dr MacKinlay has extensive experience and has worked for the NHS

for over 17 years. She had initially prepared a report for the respondent, number 7/1 of

process, in July 2020. That had been both a parenting capacity assessment and contact

assessment. She now understood that the parenting assessment aspect was no longer an

issue and the focus was on maternal contact on the basis that the children cannot be

returned to LL's care. Dr MacKinlay adopted her report in its entirety as evidence.

[41]

When the witness had met Amy in her foster placement the child had given her a

tour of the farm on which she lives and so information had to be snatched whenever

possible. Amy would move away if she did not want to answer a question. On the issue of

contact she had said to Dr MacKinlay "if I asked Maya she might organise it she might not I

don't know". It had been hard to work out why Amy did not simply ask Maya Cronin to

see her mother. She had apparently told her foster carer the same thing. Dr MacKinlay had

found it difficult to ascertain whether Amy genuinely wanted contact at that time because

although she was clear that she wanted to see her mum she stated that she had not told

Maya that Dr MacKinlay had been made aware that a period of direct contact had taken

place after the joint report with Dr Edward. While she had not had feedback, she seemed

pleased to hear Ms Cronin's account of the success of that contact. Dr MacKinlay very much

hoped that on that basis there could be a further contact session some time in late

spring 2021. The purpose would be for the respondent to explain and reassure Amy in

relation to her circumstances. She was firmly of the view that direct contact should not be

terminated. The available information confirmed that these children were not in their

mother's care primarily as a result of her poor mental health. They need to understand and

have empathy around that. A direct and indirect relationship will help them understand

their history and if they have no such understanding it would cause them significant

psychological distress and they would feel abandoned. That said, direct contact can only

happen when the respondent is reasonably well.

[42]

All of the available research supports a conclusion that these girls are likely to

contact their mother anyway when they are in the 15 to 18 year old age category. The

respondent's presentation is unusual because she is particularly plausible in relation to her

delusions. It can take weeks to ascertain that she is unwell and the children will have to

learn to understand this part of her psychosis. Accordingly, they need time to develop an

understanding of their mother's ill health before they could have unregulated contact with

her. Dr MacKinlay was unsure whether the social work department understood the

situation fully before reading her report. Understandably their desire was to protect the

children from their mother as she presented outwith the normal range of behaviour,

something they would regard as a risk to the girls. However, Dr MacKinlay was clear that if

the children are supported to understand their mother it would help. For example, one of

the respondent's delusions is that she is descended from important paternal lineage, a not

uncommon delusion which can be safely explained to children. It can be explained that it is

the illness talking rather than their mother talking. Of course the respondent also has

delusions that could have a negative impact, such as the claim that their department was

involved in sexual abuse of Amy or that the girls are cloned. However the respondent

tended not to have the same delusions at the same time and she was able to hold the

delusions to herself for most of the assessment with Dr MacKinlay. Clearly contact could

not take place if the respondent was having a delusion and not able to hold it back. That

would occur if she was going through a period of being more unwell.

[43]

In relation to the perceived divergence of views between Dr MacKinlay and

Dr Edward in relation to the re-instigation of contact, Dr MacKinlay thought that Dr Edward

had not seen Amy in her new placement and that could explain the difference. In the joint

report, the psychologists had described this case as "complex and multifaceted". (Page 15 of

number of 107 process.) This was because there was numerous parts to the jigsaw including

the respondent's mental health, Amy and Sarah's different pathways in their placements

and the difficulties around managing contact between the children and their mother. It was

necessary both that their mother was well and also that each of them was settled for contact

to be able to go ahead. It would be hard if this issue was "written in stone" at the moment.

There was no guarantee that the girls would have permanent placements. Although more is

known about the respondent's fluctuating mental health, the absence of information about

whether the girls' future carers would be able to fulfil their needs made this a difficult time

to make long-term decisions.

[44]

Dr MacKinlay's concern was solely for the children. Once they realise that they are

not with their mother because she is mentally unwell they will develop empathy and it

would be hoped that they want to see her. It is the foster carers and the social work

department who will have to make individual decisions for the children. For example the

respondent does not need to know whether they are going to the dentist or getting haircuts.

What the children need to know is that their mother is informed about their well-being but

not in charge of the decision making. When asked whether giving information to the

respondent would be in her interests or in the children's interests, Dr MacKinlay stated that

it would be in the respondent's interests. However, having worked with hundreds of

looked after children at LAC reviews a consistent theme was that these children worry about

the absent parent, usually the mother, and want to know that she has been made aware that

they are doing well. On that basis it would be naive to say that the giving of information is

solely for the parent because the children benefit as well.

[45]

In relation to the joint recommendation for an independent assessor, Dr MacKinlay

confirmed that the respondent's mental health is particularly difficult to assess. If she drops

in snippets of information about having a twin or money coming to her that can be a signal

that she is unwell but it is difficult to identify what is a delusion and what is reality. It takes

a trained professional to identify both whether she is exhibiting signs of ill-health and also

whether she poses any risk. The recommendation that an independent assessor become

involved after there had been at least two successful direct contacts only if the social work

department then states that direct contact would not be appropriate was made on the basis

that social workers are not suitably qualified to identify the nature of the respondent's

ill-health. Only a mental health professional can say whether the respondent is sufficiently

unwell to be a risk to the children.

[46]

On the issue of whether it was in the best interests of the children for the social work

department to manage and control contact, Dr MacKinlay was conscious that it was possible

that Ms Cronin would not be involved in future. The safeguard of an additional person with

training who could identify the mental health needs of the respondent and the children

would be appropriate. Whether or not that would be a psychologist or a mental health

professional depended on what issues arose. While the social work department were

extremely knowledgeable about the case generally, it was the complexities of how the

respondent presents when she is unwell that required some specialist input. The witness

did not share the respondent's level of concern about decisions being left to the social work

department. However, she considered that it would be fair to the children that a mental

health professional decides whether she is well and that such an independent assessment

takes place if the social work department decided that there should be no contact.

[47]

Under cross-examination, the witness agreed that she and Dr Edward considered

that all that could be done at the moment was to put a decision making structure in place

and that flexibility had to be built into that. The need for sufficiently informed and timeous

decision making supported a conclusion that the social work department should be making

the decisions. Dr MacKinlay remained of the view that the social work department would

be the appropriate assessors and facilitators of the girls' needs. They could provide

information about how the girls are doing to any independent assessor who would then

meet with the respondent. When asked who would be making the decisions on future

contact, Dr MacKinlay was clear that it would be the social work department with possible

additional input from a mental health professional such as a community psychiatric nurse.

If there is already a community psychiatric nurse involved that would be the ideal person to

perform the independent professional role. While the social work department have been

cautious about re-instigating contact for Amy they were very open to Dr MacKinlay's

suggestion after she explained the situation with the respondent's delusions and how they

work. She had no concerns about the social work department's approach in this particular

case.

[48]

On the issue of attendance at LAC reviews Dr MacKinlay agreed that this would be a

very stressful situation post-permanence order. If the respondent disagreed with decisions

that were being made but had no authority to contradict them that would be difficult.

Dr MacKinlay thought that the informal approach of the social work department informing

the respondent afterwards of the important aspects of the LAC review was better although

the optimal result might be for the review coordinator to convey the information to the

respondent.

The applicable law

[49]

The provisions on permanence orders are contained in sections 80-89 of the Adoption

and Children (Scotland) Act 2007. Section 80(2) defines permanence orders as consisting of

(a) the mandatory provision and (b) such ancillary provisions as the court thinks fit. The

mandatory provision is defined in section 81(1) as a provision vesting in the local authority

both the parental responsibility in relation to guidance appropriate to child's stage of

development until the child attains the age of 18 and the parental right to regulate the child's

residence until the child attains the age of 16. There are a number of possible ancillary

provisions that can be made. These are all listed in section 82 of the act which is in the

following terms:

"82 Permanence orders: ancillary provisions

(1) The ancillary provisions are provisions--

(a) vesting in the local authority for the appropriate period--

(i) such of the parental responsibilities mentioned in section 1(1)(a), (b)(i)

and (d) of the 1995 Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act,

in relation to the child as the court considers appropriate,

(b) vesting in a person other than the local authority for the appropriate period--

(i) such of the parental responsibilities mentioned in section 1(1) of that Act,

and

(ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act,

in relation to the child as the court considers appropriate,

making of the order, vested in a parent or guardian of the child, and which--

(i) by virtue of section 81(1)(a) or paragraph (a)(i), vest in the local authority,

(ii) by virtue of paragraph (b)(i), vest in a person other than the authority,

(d) extinguishing any parental rights in relation to the child which, immediately

before the making of the order, vested in a parent or guardian of the child,

and which--

(i) by virtue of paragraph (a)(ii), vest in the local authority, or

(ii) by virtue of paragraph (b)(ii), vest in a person other than the authority,

(e) specifying such arrangements for contact between the child and any other

person as the court considers appropriate and to be in the best interests of the

child, and

(f) determining any question which has arisen in connection with--

(i) any parental responsibilities or parental rights in relation to the child, or

(ii) any other aspect of the welfare of the child."

Section 82(2) confirms the relevant periods for the local authority taking on such

responsibilities and rights mentioned above.

[50]

Section 87 confirms that the making of a permanence order automatically terminates

the parental responsibility and right of a natural parent to regulate and decide the child or

children's residence. It is section 84 of the 2007 Act that sets out the tests and considerations

that the court requires to apply and have in mind before determining whether a permanence

order should be made. There is now no dispute in this case that a permanence order should

be made. It is accepted that, in terms of section 84(5) it would be seriously detrimental to the

welfare of both Amy and Sarah to live with their mother (84(5)(c)(ii)). Neither child is

sufficiently old enough or mature enough to oppose the permanence order being made. The

court must also be satisfied that it would be better for each child that the order be made than

it should not be made - section 84(3). In considering whether to make a permanence order,

and if so, what ancillary orders should be contained within it, the court must regard the

need to safeguard and promote the welfare of each child throughout childhood as the

paramount consideration - 84(4).

[51]

The position in relation to the existing Compulsory Supervision Orders for the

children is relevant in this case. Section 89 of the act provides:

"(1)

Subsection (2) applies where--

(a) the child in respect of whom a permanence order is to be made is subject to a

compulsory supervision order, and

(b) the appropriate court is satisfied that, were it to make a permanence order in

respect of the child, it would no longer be necessary that, for the protection,

guidance, treatment or control of the child, the child be subject to the

compulsory supervision order.

(2) The court must make an order providing that, on the making of the permanence

order, the compulsory supervision order ceases to have effect."

Finally, there is a provision in section 92 permitting the court making the permanence order

to vary such of the ancillary provisions made in the permanence order as the court considers

appropriate for so long as the permanence order containing those ancillary provisions is in

force.

[52]

Indisputably, the possibility of extinguishing any parental responsibilities and rights

engages article 8 ECHR. The extinction of parental responsibilities and rights is an

interference with the right to respect for family life and so the extent of such interference

must be necessary, proportionate and the minimum intervention required having regard to

the interests of the child. The Strasbourg jurisprudence supporting that proposition was

helpfully recently summarised in the case of Strand Lobben v Norway (2020) 70 EHRR 14 at

paragraphs 202-213. Both the domestic statutory scheme outlined above and the ECHR

requirements support that it is for the petitioner to satisfy the court that it is necessary and

proportionate to extinguish any parental responsibilities and rights held by the respondent.

Discussion

[53]

As indicated, there is no dispute that the threshold criterion for a permanence order

is made out in that it would be significantly detrimental for either Amy or Sarah or both of

them to return to the care of their mother. In addition to the undisputed facts set out, the

court has the benefit of the local authority reports (No 6/2 of process in each case) and the

curator ad litem reports, together with the earlier expert reports from Dr Edward and

Dr MacKinlay. Dr Edward concluded in her first report in August 2018 that both girls, and

particularly Amy, present with a level of need that is exceptionally demanding even to the

most skilled and experienced foster carers. Even if the respondent was well the girls could

not be returned to her care. Dr MacKinlay agreed with that and confirmed that if the girls

were returned home they would be exposed to poor maternal mental health and associated

lack of care which would pose an unacceptable risk to their well-being. Having considered

the relevant material I am entirely satisfied that the threshold test for a permanence order is

met and that it would be better for each child that an order be made than not. It will best

serve their interests throughout their respective childhoods.

[54]

So far as the evidence is concerned, it was restricted to the contentious issues dealt

with below. I have no hesitation in accepting as both credible and reliable the evidence of

the principal social worker Ms Cronin. She impressed as a thoughtful professional who has

done her best to manage a difficult situation with two traumatised children. I reject the

suggestion that she did not have an open mind on direct contact until she heard that Amy

had indicated a desire to see her mother to Dr MacKinlay. It was clear that Ms Cronin had

sought and relied on the advice of Dr Edward and she did not delay in organising direct

contact after Amy's views were conveyed. There was no evidence to suggest that Amy did

not trust or otherwise had a poor working relationship with Ms Cronin. The respondent has

had a difficult relationship with the social work department in the past and is mistrustful of

their actions. It seems to me that she has latched onto the idea that contact might never have

taken place had Amy not seen Dr MacKinlay. While her concerns are understandable they

are in my view overstated. Against a background of the reasons for the cessation of contact

previously and the respondent's acknowledgement that her behaviour was inappropriate,

the period without direct contact was clearly justified and in the children's interests. The

situation was kept under review and although the catalyst for its reintroduction in late

October 2020 was Amy's stated desire to Dr MacKinlay, she articulated her wish to her

carers too and I conclude that she was able to speak out on the issue as her desire developed.

[55]

The two skilled witnesses have been of considerable assistance in this case. It is

particularly helpful that they felt able to make joint recommendations on a route to possible

future direct contact between the children and their mother. Any difference in views was of

emphasis only. Dr Edward was more inclined initially to recommend preserving the

relationship in a more indirect way than Dr MacKinlay might have recommended. Both

experts are clear, however, that the children must be informed of and understand their

mother's mental health difficulties before they become teenagers. The aim now is for that to

be achieved through well managed direct contact. If that cannot occur indirect contact

would take its place. The respondent should be reassured by the proposed scheme for an

independent assessor.

[56]

LL is to be commended for the efforts she has made to stabilise her health and to

overcome her addiction problems. She seemed well when giving evidence and presented as

an articulate and caring person with something to offer her children. Such insight as she

now has into the impact on the girls of her behaviour when she is unwell will assist her

acceptance of the removal of her decision making rights in respect of the children. I

acknowledge that it will have been difficult for her to reach this stage and I am confident

that if she remains well her children will benefit from the level of contact recommended.

The absence of a definitive pattern of contact should not undermine the importance of

contact taking place if at all possible. While I do not accept that LL will be "cut out" if the

social work department is the primary decision maker on contact going forward, I do not

doubt that her concern in that respect is genuine.

[57]

The central dispute in this case relates to two specific but important matters. The

first is whether the Compulsory Supervision Orders ("CSO") should be revoked in this case.

Secondly there is an issue about how the respondent should continue to have the

responsibility and right to obtain information about the health, development and welfare of

each child and in particular whether the court should regulate how that is done following

each looked after children (LAC) review. I will deal with each of these in turn.

[58]

The petitioner's position is that continuing the CSOs in respect of both girls

post-permanence was without known precedent. Mr Inglis contended that the co-existence

of permanence and Compulsory Supervision Orders in individual cases is neither consistent

with the law nor in the best interests of the children. In particular, the permanence order

has as its purpose investing in the local authority the power to make decisions and promote

the children's' welfare. In contrast a local authority has a subservient role as the

implementation authority when the children's hearing is involved. Mr Inglis submitted that

section 89 of the 2007 Act clearly envisages the termination of the children's hearing

jurisdiction upon the making of a full permanence order. Where the court is making a

permanence order to enable and require the local authority to perform the relevant parental

responsibilities and rights the revocation of the supervision requirement was effectively

mandatory. If it was being suggested that the CSOs should be continued so that the hearing

could monitor contact, that would unlawfully curtail the powers granted to the children's

hearing. Section 83 of the Children's Hearings (Scotland) Act 2011 specifically gives the local

authority responsibility for giving effect to all of the measures included in a CSO. That

included requirements that the child resides at a specified place, medical and other

treatment for the child as well as any contact direction. In essence the children's hearing

exercises a different function from the court. That function was no longer appropriate or in

the children's best interests on the granting of a permanence order.

[59]

Further, it was the petitioner's position that neither of the two skilled witnesses in

this case had accepted that the continued intervention of the children's hearing in managing

the local authority's conduct of the children's' situation was warranted by the reference to

their best interests. Both Dr MacKinlay and Dr Edward had confirmed in their joint expert

report that the social work department would be the appropriate assessors and facilitators

so far as the girls' needs moving forward were concerned. In her oral evidence,

Dr MacKinlay had confirmed that it was in the best interests of both girls that such direct

future contact as should take place should be managed and controlled by the social work

department. Dr Edward had said in evidence that the recent assessment and

implementation of the contact session by the social work department proved that the system

worked. In the absence of any evidence that the social worker involved had been in any

sense unresponsive or hostile to appropriate contact between Amy and the respondent, it

would be appropriate to leave the regulation of future contact to the social work

department. The involvement of any independent assessor would only take place in the

circumstances described in evidence. The community psychiatric nurse would in any event

be suitable to discharge the function identified by them in their joint report. So far as

considering the girls' position on contact, this required to be assessed by someone fully

informed about the children's needs. The children's hearing is presided over by those who

are strangers to the children. Its procedures do not facilitate speedy decision making.

Maya Cronin had confirmed the difficulties with obtaining timely decisions from the

children's hearing. It would be inappropriate for the children to require to attend children's

hearings in the future, something that would be inevitable if the CSOs were not terminated.

[60]

The respondent's position was that while a convention may have developed

whereby every time a permanence order is granted the CSO tends to be terminated, that was

not what the legislation demanded. The terms of section 89 of the act were clear and

required an assessment of whether the CSO should be terminated in every case. Under

reference to the report of the Adoption Policy Review that led to the 2007 Act, at

paragraph 5.22, Mr Aitken submitted that it was clear that permanence orders were always

intended to be as flexible as possible. The only mandatory provision was for the local

authority to control the right of residence of the child. In all other respects the court should

consider whether the parent involved should retain any parental responsibilities and rights

before taking a decision to extinguish these. It was never intended that parental

responsibilities and rights should all be removed and a CSO terminated. The onus was on

the petitioner as local authority to satisfy the court as to how many parental responsibilities

and rights should be taken away and whether the CSO should be terminated.

[61]

It was accepted on behalf of the respondent that retaining the CSO was without

known precedent but it was submitted to be competent on a plain reading of section 89.

While the children's hearing system had many deficiencies there was a basis for retaining its

involvement in this case where the local authority intended to avoid providing the

respondent with the children's LAC plan and other relevant material. It was wrong to

suggest that there was any inconsistency between making a permanence order under the

2007 Act and having the ongoing involvement of the children's hearing under the 2011 Act.

For example, section 67(2)(i) provides that one of the grounds for referral to the children's

hearing is that a permanence order is in force and special measures are needed to support

the child. Further, sections 126 and 161 of the 2011 Act provide that where there is a

permanence order with a condition of contact or with an order for contact and the children's

hearing seeks to interfere with that there is an available right of the parent to appeal the

children's hearing decision. While the local authority had a different role following a

permanence order than it usually did when acting as implementation authority in the

children's hearing system that was not problematic. Although the children's hearing had

the power to regulate a child's residence it was not mandatory that it did so. The measures

listed in section 83(2) comprised a list but not all were necessary. If the CSO continued, the

children's hearing would have the ultimate power to suspend the operation of the local

authority's parental responsibilities and rights although that would only be likely to happen

in an extreme case. While the views of the skilled witnesses on the matter were there for

consideration it was not within their skill set to determine what the appropriate forum was

for decision making about the children as that was a matter for the court in these

proceedings.

[62]

Mr Aitken confirmed that he was not seeking to engage the children's hearing in

making immediate decisions about contact, rather it was the children's hearings powers of

investigation and an assessment that mattered. For example, the applicable rules

(Children's Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of

Relevant Person) Order 2013 Rule 61) gave the children's hearing the power to order reports

or order such other investigations necessary in the child's interest.

[63]

Mr Aitken contended that the benefit in this particular case of the children's hearing

retaining responsibility, in addition to the ability to instigate investigations and instruct

reports, would be that the respondent would be adequately involved in the decision making

process as she would remain a relevant person. She would have access to all information

and a right to provide her own reports to the decision maker. She would be able to

challenge decisions and so prevent matters drifting. The issue of contact was both complex

and fluid. If the CSOs were terminated there was a risk of there being no oversight of that

and of decisions such as Amy moving placement and Sarah's future which at the moment

was entirely uncertain. The right of review of decisions that would be available to the

respondent was also important.

[64]

On the second issue of the extent to which the respondent should have a right to

continue to be given appropriate information about the children, this was to some extent

linked with a decision about the termination of the CSOs. Counsel for the petitioner

submitted that the evidence supported an informal arrangement at the discretion of the

social work department. Ms Cronin's position in evidence was that the respondent would

not be invited to LAC reviews and would simply be given such information as the local

authority decided she should have. Mr Aitken contended as the court could not make a

properly informed determination on what future contact between the children and their

mother should be, there required to be a route for decision making. In the event that the

children's hearing was not to be involved, the issue then was about the respondent's

ongoing involvement. The petitioner proposed that all but the respondent's residual right of

contact should be extinguished but the respondent contended that she should continue to

retain responsibilities and rights restricted to obtaining reasonable information about the

health, development and welfare of each child and to be advised of all information provided

to each LAC review relevant to that matter. The respondent also invited the court to refuse

the petitioner's proposal that the permanence order should state that the operation of

contact will be at the discretion of the petitioner. The regulations surrounding LAC reviews

do not require that a parent must be invited to or be allowed to participate directly at them

but the local authority must consult with and take account of the views of any person with

parental responsibilities and rights. It was not in dispute that the respondent will remain a

parent for the purposes of those regulations.

[65]

Insofar as there was a dispute about the correct interpretation of section 89 of the

2007 Act, I have concluded that Mr Aitken's submissions are to be preferred. There is no

rule that the court must terminate a Compulsory Supervision Order on the making of a

permanence order. The convention that has developed whereby the CSO is invariably

terminated on the making of a permanence order may have evolved simply because the

issue has not been focused by parties to proceedings of this type to date. There may have

been a tendency to alight on subsection (2) of section 89 which requires revocation of a CSO

on the making of a permanence order without appreciating that that is mandated only

where, in terms of section 89(1)(b) of the 2007 Act, the court is satisfied that continuation of

the CSO is no longer necessary for the protection, guidance, treatment or control of the child.

Accordingly, the issue in every case must first be whether the court is so satisfied.

Mr Aitken was correct, then, to contend that the approach should not be to assume that the

CSO will cease to have effect but to consider first whether or not it is necessary for it to

remain in place. In addition to section 89 of the 2007 Act, certain provisions of the

Children's Hearings (Scotland) Act 2011 support this conclusion. In particular,

section 67(2)(i) of the 2011 Act includes as a ground for referral and so entry into the

children's hearing that a permanence order is in force and special measures are needed to

support the child. This illustrates beyond doubt that a permanence order and a CSO can

operate together competently. Where they do, the local authority will be treated effectively

as the person with relevant parental responsibilities and rights that may be affected by the

imposition of a CSO and would participate in the children's hearing on that basis. It is not

difficult to imagine the circumstances in which this might be appropriate. For example, a

child who was settled with carers at the time a permanence order was made may

subsequently display behavioural difficulties and require to be removed from their

accommodation. If the local authority holding a permanence order and so bestowed with

the responsibility and right to regulate residence failed to do so satisfactorily such that the

child was without proper care, the children's reporter might well have a basis for referral to

the hearing. In the present case, where there is no dispute that the local authority is the

appropriate decision maker so far as the children's residence is concerned, the arguments for

and against continuing the CSOs for these children are not clear cut. The difficulty is how

best to regulate for the future in a situation where there are uncertainties both about the

children's future placements and also about whether and to what extent their mother will

remain well and so able to maintain some form of direct contact with them.

[66]

If the CSOs are not terminated in this particular case it is likely that Amy and Sarah

would both require to attend children's hearings in future. They have not done so to date

because the need for them to be present has been dispensed with due to their relatively

young ages. In her affidavit evidence (at paragraph 13) Ms Cronin pointed out that there

have been a high number of children's hearings in the past for Amy and Sarah and that six

such hearings took place in 2019. The respondent had on a number of occasions requested

children's hearings and then not attended. While the issue of whether to continue the CSOs

is one for my determination, I accept the evidence of Ms Cronin and of the two

psychologists that it is the social work department in this case who would be the

appropriate assessors and facilitators of the girls' needs moving forward (paragraph 9 of the

joint expert report). Those needs include but are not limited to, placing each child in

suitable and preferably permanent accommodation with long-term foster carers. So far as

contact is concerned, the situation is slightly different in that there is a joint recommendation

by the experts that a safeguard of independent assessment would be appropriate if the social

work department reaches a view that this should not occur even after two direct sessions

have taken place. It is not suggested on behalf of the respondent that the children's hearing

should continue to be involved solely to oversee contact which it is accepted will be

managed by the social work department in the first instance. The issue is rather whether the

flexibility of the children's hearing would be beneficial because of the investigations it can

direct and to ensure the respondent's ongoing involvement in the decision making process.

[67]

I have decided that, on balance, and in light of the other orders I intend to make, that

this is not a case in which the children require to continue to be subject to CSOs. I consider

that the test in section 89(1)(b) is met in that I am satisfied that it is no longer necessary for

their protection, guidance, treatment or control that these children be subject to CSOs. I

consider that, consistent with the terms of the permanence order that I will make, the local

authority will be best placed to make all decisions relating to the children's residence and

related welfare decisions such as education and medical treatment. They should have the

flexibility to do so without the need to have each decision scrutinised. They will be the legal

parent for those important purposes. In the circumstances of this particular case, where the

children have not yet required to attend children's hearings, it would be unfortunate if they

required to do so in the future. That would be likely to be contrary to their best interests and

could risk disrupting any settled placement in which they live. The care with which

investigations as to how to devise a system for effective contact in this case would also be

jeopardised were the children required to attend children's hearings at which their mother

would be present. While attempts could be made to provide separate rooms or to avoid the

children coming into contact with the respondent at hearings, there is no guarantee that

such arrangements would be effective. In my view, the decision in principle that the

children should have contact with their mother when she is well enough to see them,

militates against the continuation of CSOs. A default consequence of such a continuation

would be ongoing involvement of both mother and children in a decision making forum.

That is unlikely to facilitate the carefully constructed scheme suggested by Dr Edward and

Dr MacKinlay to ensure that direct contact takes place only where certain requirements are

met. The situation might be different with children who had already attended children's

hearings or where a sustained and uninterrupted pattern of contact was already in place. In

the particular circumstances of this case, however the evidence supports the revocation of

the CSOs for both Amy and Sarah.

[68]

The remaining issue is to determine which of the respondent's parental

responsibilities and rights should be extinguished (in addition to the right to regulate the

children's residence) and how to encapsulate the evolving situation on contact. As indicated

above, there is to some extent a relationship with the decision I have made about

terminating the CSOs and this aspect of the case. The context of this part of the discussion is

that Amy and Sarah will, in terms of section 17(6)(e) of the Children (Scotland) Act 1995,

continue to be "looked after children" following the granting of permanence orders in

respect of them. Section 31(1) of the 1995 Act requires the local authority who are looking

after a child to review her case at such intervals as may be prescribed. The Looked After

Children (Scotland) Regulations 2009, SSI 2009/210 ("LAC regulations") contain the relevant

provisions in relation to the local authority's duties in this respect. Regulations 4 and 5 are

of particular interest. Regulation 4 provides that the local authority must make an

assessment of a number of factors relating to the child's immediate and longer term needs

and proposals for safeguarding and promoting the child's welfare. All matters relevant to

the welfare of the child both in the short and longer term require to be covered in that

assessment. Where appropriate, the local authority must seek and take account of the views

of each child and her parents and any other person with parental responsibilities and rights.

An assessment of parental contact is part of the assessment. Regulation 5 provides that

following an assessment made under regulation 4 the local authority must prepare a plan to

be known as the "child's plan" in respect of each child.

[69]

The controversy in this case is about the extent to which the respondent should be

involved post-permanence and in particular the amount of information she should receive.

Maya Cronin in her affidavit, at paragraph 11, proposes that the social work department

writes to the respondent on an annual or biannual basis in order to share relevant

information about both girls including about their health and development, their placements

and any changes to that and their views on contact. She disputes that sending copies of

reports and records of decisions for or following LAC reviews would be appropriate. She

cites examples in the past where the respondent has misused written reports about the girls

to their detriment during periods of mental instability. Ms Cronin does not consider that the

respondent requires the level of detail of information that would be provided in reports for

LAC reviews. Clearly anything she did receive would require to be redacted in so far as

such reports might contain information about the children's foster families.

[70]

Importantly, in terms of regulation 5(4)(b) of the LAC regulations the local authority

must provide a copy of the child's plan to the parents unless, in terms of regulation 5(5)

taking account of, inter alia, the terms of any permanence order, it would not be in the child's

interest for a copy of the child's plan to be given to that person. The outline of Ms Cronin's

evidence on this point illustrates that the local authority in this case do not intend to provide

the respondent with the child's plan in relation to each of Amy and Sarah. It appears that an

update by telephone is anticipated. Once children are settled in a placement, the LAC

reviews will take place every 6 months - regulation 45(2)(c). Although the petitioner will not

require to invite the respondent to participate in such reviews, they will continue to be

required to consult and take the respondent's views into account as she will retain some

residual parental responsibilities and rights - regulation 45(5)(a). It was central to

Mr Aitken's argument in this case that the evidence of Maya Cronin illustrated that the way

in which her department would operate the LAC review process going forward rendered it

inappropriate as a forum to decide the complex issues surrounding ongoing contact. That

was one of the main reasons said to support the continued involvement of the children's

hearing. While there is some force in that argument, in my view it does not follow that the

inevitable conclusion is continuation of the CSOs for the reasons already given. I do

consider, however, that the respondent's responsibilities to safeguard and promote Amy

and Sarah's health, development and welfare and to provide direction and guidance to them

(with the accompanying right to do so) should not be completely extinguished in this case.

It is essential that she is provided with sufficient information to enable her to engage

meaningfully with the girls on any occasions of direct contact and also to continue to

support them indirectly when she is well enough to do so. As Dr MacKinlay pointed out in

evidence, the exchange of information is not just in the respondent's interests in this case but

is in the children's interests. They will feel safer and more secure in their placement if they

are reassured that their mother is being kept up to date with their progress and knows that

they are alright. In concluding that the respondent's ability to receive information and be

advised of each aspect of every LAC review going forward, I do not intend any criticism of

Ms Cronin whose professional commitment to the best interests of these girls has been

unwavering. My concern is that should she cease involvement for any reason or even leave

the department, the important need for exchange of information may be lost. Ms Cronin has

clearly over time attained a keen understanding about the mental health background to the

respondent's difficulties, but I cannot be satisfied that any new person picking up the case

would do so immediately.

[71]

Further, I consider that the development of the route map for direct contact proposed

jointly by the two experts in this case should be formalised. Again, while Ms Cronin has

shown a willingness to arrange and supervise an occasion of direct contact once advised that

Amy wanted that to happen, it would be a retrograde step were the momentum not to be

maintained. Decisions about if and when Sarah can recommence direct contact with the

respondent still have to be taken. The input from the two skilled witnesses in this case has

been invaluable in reaching the stage of a firm recommendation for managing future

contact. In my view, the recommendations of Dr Edward and Dr MacKinlay in their joint

report should be formalised rather than the permanence order leaving the issue of contact

solely within the discretion of the petitioner. The respondent accepted freely that no specific

order regulating contact could be made at the present time. One of Mr Aitken's contentions

was that there was no effective available route for the respondent to challenge any decision

of the local authority should contact be in the children's interests but fail to occur. I accept

that the respondent would not be able to make a stand-alone claim under section 11 of the

Children (Scotland) Act 1995 nor be likely to be able to raise judicial review proceedings in

that event. However, I consider that the route of seeking a variation of the permanence

order that I intend to pronounce would not be as cumbersome as Mr Aitken suggested. If an

order is made providing that contact will be arranged by the petitioner on the basis

recommended by Dr Edward and Dr MacKinaly, the benchmark for any necessary future

variation in terms of section 92 of the 2007 Act is set. That order would be an ancillary

provision, albeit not quite in the terms proposed by the petitioner. The joint report is lodged

in process and sets the parameters for future contact. The safeguard proposed by the

psychologists in respect of the independent assessor is important. Should the respondent

remain well and, for any reason, contact is denied and either no independent assessment is

undertaken or following such assessment a failure to implement the recommendations of an

independent assessor occurs, the respondent would be able to return to this court.

[72]

It was agreed by all professionals involved that this is a complex and multifaceted

case. I am in no doubt that it is necessary to safeguard Amy and Sarah's interests

throughout their childhood and for the petitioner now to be given the primary decision

making responsibility for them. However, for the reasons given by Dr Edward and

Dr MacKinlay, their welfare also demands that they make sense of the circumstances that

have led to decisions about their permanence being made. They require as much

reassurance as can be given about their mother's state of health and about her desire to have

a relationship with them. It is in their best interests to have a relationship with her if they

are settled and the respondent's state of mental health allows direct contact to take place. To

maximise the potential of such contact it is important that it does not take place in a vacuum.

For that reason, I intend to accede to the course suggested on behalf of the respondent to the

extent that she will retain some restricted responsibilities and rights for the promotion of

each child's health, development and welfare and provision of direction and guidance (with

accompanying right in respect of the latter). The effect of that is for the respondent to retain

(1) the responsibility and right to obtain reasonable information regarding the health,

development and welfare of each child and (2) in respect of any review of each child's case

in terms of the LAC regulations the right to be advised of information provided to the said

review relevant to the health, development and welfare of each child. On contact, I will

insert a bespoke provision that ongoing contact (the parental responsibility and right of

which is retained by the respondent) is in the interests of the children and will progress on

the basis recommended by Dr Edward and Dr MacKinlay at paragraph 9 of their joint

report. For the reasons given, I have concluded that it would not be necessary or

proportionate to remove the residual parental responsibilities and rights from the

respondent. I do not accept that it is sufficient to leave it to the local authority to decide

what information they provide or indeed whether to provide it all.

[73]

I will pronounce an order reflecting the decisions I have made. As I was not

addressed on any issue of expenses in this case I will have the matter call in court for a

hearing so that any outstanding issues in relation to that can be discussed.

Scottish Court of Session Decisions