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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] CSOH 24, 2021 GWD 11-149, [2021] ScotCS CSOH_24

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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
LL
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
2
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
3
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
4
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.
5
[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
6
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.
7
[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
8
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
9
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
10
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
11
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
12
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
13
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
14
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
15
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
16
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
17
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.
18
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
19
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.
20
[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
21
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.
22
[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
23
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
24
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
25
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
26
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.
27
[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.
28
[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
29
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:
30
"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,
(c) extinguishing any parental responsibilities which, immediately before the
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,
or
(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
31
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
32
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
33
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
34
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
35
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
36
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
37
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
38
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
39
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,
40
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
41
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
42
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
43
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.
44
[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
45
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
46
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
47
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.


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