Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 48

 

AD12/14

OPINION OF LORD BRAILSFORD

In the petition of

WEST LOTHIAN COUNCIL

for a permanence order with authority to adopt in terms of the

Adoption and Children (Scotland) 2007Act Section 80

in respect of the child EV

Petitioners

against

MB

First Respondent:

KV

Second Respondent:

Petitioners:  Louden;  Morton Fraser

First Respondent: Cartwright;  Aitkens Family Law

Second Respondent:  Aitken;  TC Young

31 March 2016

[1]        In this petition application is made for a permanence order under section 80 of the Adoption and Children (Scotland) 2007 (“the 2007 Act”) in respect of a child “EV” (“the child”) who was born on 30 December 2013.  In addition to the mandatory provision ancillary  provisions are sought as follows:  (a)  Vesting in the petitioners in relation to the child the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the Children (Scotland) Act 1995 (“the 1995 Act”) and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act, all in terms of section 82(1)(a) of the 2007 Act;  (b) extinguishing in relation to the child the parental responsibilities mentioned in section 1(1)(a), (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a), (b) and (d) of the 1995 Act all in terms of section 82(1)(c) and (d) of the 2007 Act in respect of both the mother and father of the child;  specifying that there shall be no direct or indirect contact between the child and the respondents and (e) granting authority for the child to be adopted.

[2]        The child’s mother is MB who was duly served with the petition and appeared as the first respondent.  The child’s father is KV who was served with the petition and appeared as the second respondent. 

[3]        The petition was the subject of case management.  A result of this process was agreement between the comparing parties of many of the background facts including that the child was taken into care at birth and had remained in care since that time.  The matters which were agreed between parties were contained in two joint minutes (numbers 35 and 55 of process).  The case proceeded to proof on 15 December 2015, a diet which required to be continued, the proof ultimately concluding on 2 February 2016.  Affidavits were provided from all witnesses of fact.  These affidavits, and reports from experts, were taken as evidence in chief at proof. 

[4]        One incidental matter relating to procedure should be mentioned at this stage.  Agents acting for the first respondent were aware that she had experienced learning difficulties.  As a consequence of this they, quite properly, considered it prudent to obtain a psychiatrist’s report in relation to their client’s ability to comprehend and give instructions in relation to the conduct of her case.  A psychiatrist’s report was instructed and, for reasons which are not material, was delayed in preparation.  As a result of this delay a second psychiatrist was instructed to prepare a report.  As it happened both psychiatrists instructed produced reports and submitted them to the agents within a few days of each other.  The reports were, at least to some extent, at variance.  Both psychiatrists agreed that the first respondent had experienced learning difficulties and had an IQ which they placed as  being somewhere between 70 and 80.  The psychiatrists did however disagree as to the effect these disabilities imposed upon the capacity of the first respondent.  One psychiatrist considered she had sufficient capacity to understand the proceedings and give instructions.  The other psychiatrist took a contrary position.  This matter was brought to the attention of the court at a case management by order hearing.  On the motion of the first respondent I agreed to allow a preliminary proof restricted to the issue of the capacity of the first respondent.  Prior to that proof taking place a meeting was arranged between the two psychiatrists as a result of which they were able to reconcile some of the differences between them.  At the preliminary proof I heard evidence from both psychiatrists and from the first respondent.  I was satisfied that whilst it was plain that the first respondent experienced problems in comprehending complex and difficult questions and situations, she did have sufficient capacity to understand the nature of the proceedings she was involved in if certain relatively simple precautions were taken.  These precautions included frequent breaks in the proceedings, the phrasing of questions in clear and straightforward language and the ability to have recourse to her solicitor to explain matters to her, all matters which, with the agreement of all counsel concerned, the court was able to accommodate in the substantive proof.  I made no order and allowed the case to proceed to proof.

[5]        The legislative background against which this petition requires to be considered was not contentious.

It is contained in sections 80-84 of the Adoption and Children (Scotland) Act 2007.  Section 80 permits the granting of a permanence order with mandatory provisions and such ancillary provisions as the Court thinks fit.  Section 81 stipulates the mandatory provisions.  Ancillary provisions are stipulated in section 82.  In the present petition the relevant orders are those in section 82(1)(a), (c), (d) and (e).  Section 83 provides the conditions for orders granting authority for adoption.  Section 84 sets forth the conditions applicable to the making of a permanence order and stipulates the legal test for making a permanence order.  Section 84(1) is not relevant in the circumstances of the present case.  Section 82(2) is relevant in this application.  Sections 84(3) and (4) provide that in considering whether to make an order and, if so, what provisions the order should make, the need to safeguard and promote the welfare of the child throughout childhood is the paramount consideration.  Section 84(5) sets forth certain steps the court must take before granting an order.  That the foregoing were the relevant statutory provisions which require to be considered in relation to this petition was not disputed by counsel for any party.  Section 14 of the 2007 Act is also relevant to the consideration of whether authority to adopt should be granted. Insofar as relevant to the circumstances of this petition the 2007 Act provides:

 

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

 

(2) The court or adoption agency must have regard to all the circumstances of the case.

 

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

 

(4) The court or adoption agency must, so far as is reasonably practicable, having regard in particular to—

 

(a) the value of a stable family unit in the child's development,

 

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

 

(c) the child's religious persuasion, racial origin and cultural and linguistic background, and

 

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

 

(5) Where an adoption agency is placing a child for adoption it must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.

 

(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.

 

(7) If an adoption agency concludes that there is an alternative such as is mentioned in subsection (6), it must not make arrangements for the adoption of the child.”

 

There was, further, agreement between the parties that the correct approach to interpretation of the legal test for the making of a permanence order was that set down by the Inner House in TW v Aberdeenshire Council 2013 SC 108 at paragraph 13.

[6]        I have already indicated that a considerable amount of the factual background to this application was agreed and contained in two Joint Minutes.  These Joint Minutes are in the following terms:

“Joint minute 35

 

1.         All social work records, reports and minutes lodged as productions are, so far as copies, to be held as equivalent to principals and as having been written or pronounced by parties by whom they bear to have been written or pronounced on, on or about the dates they respectively bear to have been written or pronounced on, on or about the dates they respectively bear.

 

2.         EV, (“the child”), was born on 30 December 2013 at Livingston.  The child’s natural mother is MB, residing at address given.  The child’s natural father is KV, also residing at address given.  The child’s father is also referred to by the Petitioner as [name given].  KV has parental responsibilities and rights in respect of the child.

 

3.         MB has a learning disability.  KV has told the Children and Families Team of the Social Work Department of the Petitioner, (the “SWD”), that he also has a learning disability.

 

4.         MB has two other children, MP, who was born on 7 December 2004 and FP, who was born on 18 April 2007, whose father is not KV.  On the recommendation of the SWD these children were placed with their father, Mr P, after his relationship with MB broke down in or around mid-2012.  Following Mr P’s sudden death in 2013 both of these children were accommodated by the SWD and remain so accommodated.  The children have not been in MB’s care since 31 October 2012.  A factor in the SWD decision not to allow these children to be returned to MB’s care both before and after Mr P’s death was her relationship with KV.  MB has regular contact with these two children.

 

5.         The SWD first became aware of the child after a referral to it by MB’s Social Worker in the Adult Services section of the Petitioner’s Social Work Department.  A pre-birth Child Protection Case Conference was held on 20 November 2013, at which Conference it was decided the child should be placed on the Child Protection Register.  At this time, KV continued to live in Surrey, but stated his intention to move to West Lothian to live with MB and to care for the child.

 

6.         KV is Sri Lankan.  His first language is Tamil.  KV was born in Sri Lanka and, as a child, moved to India for political reasons.  His family moved to Surrey around 2000 and remain living there.

 

7.         On 9 August 2013, KV was charged with a contravention of Section 127(1)(a) of the Communications Act 2003.  The charge narrates that he sent MB a message that was “grossly offensive or of an indecent, obscene or menacing nature”.  On 29 January 2015, KV was convicted of this charge.  Production 6/40 is a true and accurate copy of an Extract Conviction relating to this conviction.  KV was sentenced to pay a fine of £135.

 

8.         In December 2013, prior to the child’s birth, KV moved to live with MB.

 

9.         On 30 December 2013, the date of the child’s birth, a Child Protection order was granted at Livingston Sheriff court, with a condition of non-disclosure of her address, for contact between the child and MB to be supervised and for there to be no contact between the child and MV.  On 2 January 2014, the child was discharged from hospital into the care of foster carers and has since then remained accommodated by the Petitioner.

 

10.       On 3 January 2014, a Children’s Hearing decided to continue the Child Protection Order.  Production 6/9 is a true and accurate record of the decisions reached and the reasons for those decisions.

 

11.       On 10 January 2014, a Children’s Hearing decided to make the child subject to an Interim Compulsory Supervision Order and to refer the Grounds of Referral to the Sheriff for proof.  On 31 January 2013, 19 February 2014 and 7 March 2014 Children’s Hearings decided to continue the Interim Compulsory Supervision Order.  The condition of non-disclosure of address was continued at these Hearings.  Productions 6/10, 6/13, 6/16 and 6/17 are true and accurate records of the respective decisions reached at the Hearings and the reasons for those decisions.

 

12.       A Parenting Capacity Assessment relating to MB began on 2 February 2014.  Six one-hour sessions were offered to her and she did not attend two sessions.  She missed one session due to missing her bus.  She was late for another session.  By the time MB arrived for contact the child had been returned to her foster carers.  Production 6/5 is a true and accurate record of the Assessment Report prepared by Elisha McCulloch, Nursery Officer.

 

13.       On 23 May 2014, amended Grounds for Referral were not accepted but established after proof.  Production 6/51 is a true and accurate copy of the interlocutor pronounced on that day.  Production 6/52 is a true and accurate copy of the amended Grounds for Referral.

 

14.       On 12 June 2014, the child was made subject to a Compulsory Supervision Order with a measure that the child shall have contact with Ms B a minimum of once per week, supervised by or on behalf of the SWD and a measure that she shall have no contact with KV.  Production 6/25 is a true and accurate copy of the Order and the measures included in the Order.  The child remains subject to a Compulsory Supervision Order.

 

15.       On 16 July 2014, at a Looked After Children Review Meeting, the meeting decided to refer the child’s case to West Lothian Adoption and Permanence Panel to consider the best legal route to secure the child’s care in the long term.  Production 6/28 is a true and accurate copy of the Minutes of this meeting.

 

16.       Production 6/31 is a true and accurate copy of a form, Form E, prepared for a meeting of West Lothian Adoption and Permanence Panel, signed by the child’s social worker, Elizabeth, (known as Libby), Hackett, the SWD Team Leader and the child’s parents on 3 September 2014.

 

17.       Production 6/32 is a true and accurate copy of a form, Form E, Part II prepared by Libby Hackett for consideration by the West Lothian Adoption and Permanence panel.

 

18.       On 16 September 2014, West Lothian Adoption and Permanence Panel considered the child’s case.  It recommended that the child needed permanent alternative care as rehabilitation to her parents was not an option.  The Panel considered that before recommending the route to achieve permanence, further information was needed about the possibility of kinship care options.  It requested that risk assessments be completed in respect of KV’s parents and MB’s grandmother, to be considered at a continue Panel.

 

19.       On 14 October 2014, West Lothian Adoption and Permanence panel met again to consider the child’s case.  The Panel recommended that an application for a Permanence Order with authority to adopt should be the legal route to achieve permanence for the child.

 

20.       On 22 October 2014, a Children’s Hearing considered the child’s situation.  A decision was taken to reduce MB’s contact to the child from once a week for one hour, supervised, to once a month, for one hour, supervised.  Production 6/36 is a true and accurate copy of the record of proceedings of the Hearing.  Page 5 of this production is a true and accurate copy of the Compulsory Supervision Requirement as varied.

 

21.       On 6 November 2014, a Children’s Hearing provided advice to the Court, The Panel advised that it was in agreement that a Permanence order with Authority to Adopt should be sought by the Petitioner.  Production 6/38 is a true and accurate copy of the record of proceedings of that Hearing.

 

22.       Neither parent attended a Looked After Children Reviewing Hearing on 24 February 2015.

 

23.       MB was booked into the antenatal clinic at 12 weeks gestation and was a good attender thereafter.  Production 6/41 is a true and accurate copy of a pregnancy medical report in respect of the first respondent’s pregnancy with the child.

 

24.       KV had contact with the child for the first time since she was discharged from hospital after her birth on 14 May 2015, for one hour, observed by Dr Richard Woolfson.

 

25.       The petitioners have not, at any time, conduct a formal assessment of KV’s parenting capacity.”

 

and

 

“Joint minute 55

 

1.         The report of Dr Coupar, dated 17 April 2015, number [ ] of process shall be held to be his evidence in the cause.”

 

[7]        I turn now to consider the evidence.  At proof the petitioners adduced the evidence of six witnesses.  Elizabeth Hackett was the lead social worker responsible for the child’s case.  She was supervised by her senior social worker Lindsay Murdoch.  Elisha McCulloch prepared a parenting assessment in relation to the first respondent.  Mary (Rae) Cochrane was a housing officer who had offered support to the first and second respondents in late 2015.  In addition to these witnesses Detective Constable James Fox and Detective Sergeant Stephen Morris gave evidence in relation to police involvement with the second respondent.

[8]        The first respondent gave evidence on her own behalf.  In addition she adduced evidence from Mrs Helen Stirling, an independent social worker. 

[9]        The second respondent also gave evidence on his own behalf and, in addition, adduced the evidence of an expert child psychologist, Dr Woolfson.

[10]      The general tenor of the evidence adduced on behalf of the petitioners is as follows.  The petitioners’ concerns in respect of the first respondent arose during the course of her pregnancy with the child EV.  As is agreed in paragraph 5 of the joint minute number 35 of process there was a pre-birth Child Protection Case Conference held in relation to the petitioners’ concerns on 20 November 2013 approximately five weeks prior to the birth of the said child.  At the time of this conference the second respondent resided in Surrey but had stated his intention to move to the local authority area for which the petitioners were responsible and to reside there with the first respondent and participate in the care of the couple’s child after birth.  It is fair to say that on the basis of the evidence the primary source of the petitioners’ concerns in relation to the child EV arose as a result of the relationship between the first and second respondent. 

[11]      There were three main causes for the petitioners’ concerns in regard to the relationship between the first and second respondent, all of them arising out of perceived concerns about the behaviour of the second respondent.  The first concern related to criminal charges, of alleged sexual conduct by the second respondent which were brought in England in 2010.  It was clear on the evidence that these charges had been dropped within a short period of their having been made, probably some time in late 2010 and certainly a considerable time before the child’s birth in December 2013.  On the basis of the evidence I heard it would appear that the complainer in the charges, a vulnerable female person, who suffered from learning difficulties, had given inconsistent and contradictory accounts of her allegations to the police.  As a result of this the police, as the prosecuting authority in England, did not consider it safe to proceed with the charges.  One further matter did arise out of these charges.  After the charges were brought and before they were dropped, the second respondent was granted police bail.  Evidence was led at the proof from an English police officer involved in the case to the effect that the bail order had been contravened on two occasions, something which the second respondent tacitly acceded to in his cross examination.  The bringing of the criminal charges and the subsequent dropping of these charges and the bail contraventions were matters within the knowledge of the petitioners, and in particular the social worker responsible for the care of the child EV, when she prepared reports in relation to the child and her care.  The social worker responsible quite candidly accepted that these matters had been considered by her when making decisions as to how to write her report and the recommendations she would make.  She accepted that notwithstanding that the charges had been dropped she considered them of importance and something which she took into account when forming her views.

[12]      The second concern relating to the second respondent was an allegation that he had said that he had sexual thoughts about the first respondent’s daughter from a previous relationship, MP, that person being a child aged about 8 at the relevant time.

[13]      The third concern in relation to the second respondent were threats made by him to social workers in August 2013 that he would kill a support worker and social worker in the event that they refused to allow him and the first respondent to have the baby after its birth.  In the same vein threats, or a message of a threatening nature, made by the second respondent to the first respondent also in August 2013.  These threats were reported to the police, were the subject of a criminal prosecution and resulted in the conviction which is noted in paragraph 7 of the joint minute number 35 of process.

[14]      All of these concerns were spoken to by the various witnesses who gave evidence on behalf of the petitioners.  For reason which will become apparent it is not necessary to rehearse the detail of this evidence.  The tenor of the evidence was that notwithstanding that the criminal allegations in England were not proceeded with the social workers charged with responsibility for this case by the petitioners continued to have concerns about the second respondent’s attitude to and behaviour with female persons in general and young female persons in particular.  Beyond this the social workers were also concerned as to the second respondent’s ability to acquire parenting skills and cooperate with them to a sufficient degree to enable assistance to be offered in acquiring such skills so long as the first and second respondent resided together as a couple.  This problem had the consequential effect of adversely affecting the first respondent’s ability to acquire the necessary parenting skills which would assist her in coping for an infant child.  The reason why it is not necessary to consider the evidence of all the petitioner’s witnesses in detail in relation to these matters arises from the evidence of the respondents themselves. 

[15]      In considering the evidence of the respondents I had regard to the fact that it had been established that both these persons had experienced learning difficulties throughout their lives.  In the case of the first respondent I had, as already noted, as a result of earlier procedure in the case heard evidence about her learning difficulties.  During the course of that hearing I had also heard evidence from appropriately qualified medical personnel who assessed her IQ as being between 70 and 80.  My understanding is that this means that the first respondent would fall to be regarded as a person of significantly below average intelligence and again on the basis of the evidence I heard in the preliminary proof, a person with borderline capacity so far as ability to participate in legal proceedings is concerned.  Whilst I had less detailed information in relation to the second respondent’s cognitive ability I was aware that he had received his education outwith the normal school system as a result of his learning disabilities.  I was also aware from the evidence in this proof that when he was interviewed by police in London in connection with the 2010 criminal allegations he was always accompanied by a responsible adult.  In evidence he accepted, and it was in fact represented to the court by his counsel, that he had difficulties with reading and writing.  There was also evidence which he gave that he had difficulty in understanding and managing money.  This was a problem also experienced by the first respondent.  On their own evidence the respondents considered that they required assistance in the management of the state benefits which they received.  The matter was also covered by the agreement contained in paragraph 3 of the Joint Minute number 35 of process.  As a result of these factors I considered both respondents to be vulnerable and as a consequence I had to approach the evidence of these persons with some care and not be too exacting in how I judged their evidence.  As already noted as a consequence of the preliminary proof frequent breaks were allowed in the examination of the first respondent in order to ensure that she did not become stressed by the experience with potentially adverse consequences to her comprehension of the process.  Whilst there was no formal request in relation to periodic breaks in the evidence of the second respondent as a matter of fact there were a significant number of interruptions which had the same practical effect.  I should also note that all counsel involved in the case were careful in attempting to ensure that the questions put to these persons were couched in straightforward and readily understandable terms.  Notwithstanding the efforts of counsel there were a number of occasions where both respondents required to have questions repeated or explained to them in order to ensure that they understood what was being asked.  Making allowance for these difficulties it did appear to me that both these witnesses attempted to answer questions put to them to the best of their ability.  This consideration is important because, in my judgement, a considerable number of the answers given by both respondents were, quite plainly, contrary to their interests. 

[16]      So far as the petitioners were concerned it was a concern of Elizabeth Hackett, the lead social worker in the case, that the second respondent had said that he wanted to have sex with the first respondent’s daughter, a child aged about 8 at the time.  The original source of this information, so far as the petitioners were concerned, was the first respondent.  She had told workers in the homeless unit where she was staying that the second respondent had said he would like to have sex with the child.  The first respondent also reported this matter to the police, albeit the complaint was later withdrawn.  At a meeting Elizabeth Hackett and her manager had with the second respondent on 19 December 2013 the position he adopted was to say that he should not have said this out loud.  So far as the first respondent’s evidence was concerned she accepted the second respondent’s assurance that the statement was either not said or, if it was, was uttered as a joke.  She did not appear, at least as a matter of her evidence, to contemplate the possibility of any alternative explanation.  Whilst I have concerns about the first respondent’s evidence in this regard it is, I think, one area where allowance should be made for her cognitive limitations.  With some hesitation I do not interpret the first respondent’s change in position on this matter as an indication of her tailoring her evidence to suit her interests but am prepared to accept her changing attitude to these concerns as an example of naivety, or exaggerated, possibly misplaced loyalty, to her partner the second respondent.

[17]      More significant were passages of the evidence of the second respondent.  Whilst it is plain from the evidence of the police officer who investigated the allegations of sexual misconduct against the second respondent that charges initially brought were dropped the second respondent himself accepted in evidence that there had been a relationship between the vulnerable female person in question and himself.  The evidence he gave requires to be considered in some detail.  The matter of the criminal allegations of a sexual nature were addressed by the second respondent in his affidavit dated 20 July 2015 at paragraph 5.  There he depones:

“The complainer was a female friend of mine.  We met around 2007 when both attended the same college.  She made allegations to police that I had raped her and had behaved in an aggressive and threatening manner towards her.  I remember speaking to police about these allegations … I remember that a solicitor was present during my police interview … A relative sat in the interview with me along with my mum.  I was questioned about the allegations made by the complainer.  She was a very close friend of mine at the time although she was not my girlfriend.  We … spent time in each other’s houses.  We spoke regularly on the telephone and via text messages.  We also spent time together at college.  The complainer and I never had a sexual relationship.  I sometimes stayed overnight at her property.  She would stay overnight at my property.  I would usually stay in the spare room or in a different bed.  We never had sexual intercourse”.

 

Later in the same paragraph the second respondent deponed:

 

“I believe that the complainer wanted more from our relationship.  She tried to start a physical relationship.  She would regularly try to kiss and cuddle me.  I was not interested in this.  I once hugged her and kissed her on the cheek.  She also on one occasion showed me her private body parts.  She sometimes asked to have sex with me.  I always said no.”

 

The second respondent’s position on affidavit, which was adopted in oral evidence as part of his examination in chief was accordingly that he had never had sexual intercourse with the complainer in the 2010 London allegations.  Notwithstanding this position there was evidence before the court from DC Fox, referring to a police interview on 13 November 2010 (number 6/60 of process) that the second respondent had admitted to having sex with the complainer.  In particular in a police interview on 13 November 2010 (number 6/60 pages 38 and 39) the second respondent is noted as having said in relation to these allegations:

“… that he had first had sexual intercourse with the victim about the end of August 2009 at his own H/A but that this was fully consensual”.

 

He is noted later in the same interview as follows:

 

“The victims initial description of the first occasion she claims the suspect raped her in his own bedroom following a meet in a local park was read out to the suspect who after initially denying the event went on to agree he had lay on top of the victim in his bed where after they kissed and cuddled before going on to have vaginal sexual intercourse”.

 

Later in the same interview it is recorded:

 

“When asked how many times he thought he had sex with the victim suspect stated more than twice maybe up to forty times”.

 

In examination in chief he was directly asked if he had told the police that he had sex with the vulnerable female complainer.  The passages from the police records in number 6/60 of process which I have quoted were put before him.  Because of concerns about his learning disability these passages were read out to him.  His position was that he didn’t know what he had stated to the police but that “the police twisted” what he had said.  He was challenged on this position in cross examination, the relevant passages in production 6/60 having again put before him, at which point he admitted that he had been asked by the police whether he had had sex with this female and that he did tell them he had “20–40 times”.  When the terms of the police statement (6/60) were put directly to him he maintained that he had told the police that he had sex because the female complainer, whom he referred to as his “ex”, had told him to say this.  He said:

“I didn’t think it was important to tell the police the truth, I was only telling the police what my ex said.  I would have told the police the truth, but I was only saying what my ex said.  I didn’t think I had sex with her.”

 

[18]      In relation to the allegations of breach of bail conditions the second respondent’s position was in his affidavit at paragraph 8.  The bail conditions to which the second respondent was subject were, essentially, not to approach the complainer, her home or the college she attended.  In his affidavit the second responded deponed (in paragraph 8) that a male friend of the female complainer came to the second respondent’s house and was let in.  He then stated that the female complainer arrived later and said that she and the male wanted to stay overnight at his (the second respondent’s) house.  Despite acknowledging awareness of the bail condition he then deponed that he admitted the female and that she and the male proceeded to enter his bedroom and have sex there.  He also deponed:

“After she had sex with Robert she asked me to have sex.  I said no.  They were not forced to stay.  I was not violent towards either of them nor did I threaten violence.”

 

Notwithstanding what was said in the affidavit he proceeded when cross examined at proof to give a wholly inconsistent and contrary account of the circumstances surrounding the alleged breach of bail conditions.  When asked about the alleged breach of bail condition, and in particular what he stated in paragraph 8 of his affidavit, he said:       “They didn’t come into my house.  I am sure of that.”  When pressed on the terms of his affidavit he said:  “They entered in at my door, not actually in the house.”  He then, contradicting his affidavit said:

“I only let Robert in the house not [the female].  I let him in, there was no order against him.”

 

 

When it was pointed out that this was inconsistent with the terms of his affidavit he said:

“I know I said that in my affidavit, but I don’t know.  Robert may have let [the female] in when I went to get them food.”

 

He then stated, contrary to his affidavit, that the female had asked him to have sex with him in a telephone call.  In relation to the issue of a breach of bail condition there was also evidence, again coming from DC Fox who spoke to police records (6/60) that after the second respondent was made subject to conditions he attended at the college where the complainer studied and had approached her.  The matter was apparently reported by a teacher at the college, where the police attended.  The incident resulted in the imposition of stricter bail conditions.  In his evidence in this proof the second respondent’s answer to this allegation was that he only wanted to speak to the complainer.  In relation to the first alleged breach of bail conditions the two versions given, one in the affidavit and the other in court, are wholly inconsistent and cannot stand together.  In these circumstances I consider I am entitled to make an adverse inference against the second respondent.  So far as the second breach is concerned the second respondent admitted a breach.

[19]      The result of all this evidence was that whilst it was plain that there were no criminal proceedings brought against the second respondent there was evidence which this court required to consider in relation to the relationship between the second respondent and the female person who had made the allegations against him.  Furthermore, it also appeared to me that there was evidence before the court to support the proposition that the second respondent had breached bail conditions imposed upon him during the time when the charges against him were live.  The breaches appear to have occurred twice, once where I infer from the evidence that he allowed the complainer into his house, second where on his own evidence he accepted entering premises where the female complainer was studying.

[20]      I require to consider the implications of this evidence.  In a case where I was assessing the evidence of a person of average cognitive ability I consider, having regard to the contradictory terms of the second respondent’s affidavit evidence and his evidence in court, that I would be justified in making a finding that his evidence in relation to whether or not he had a sexual relationship with the 2010 London complainer and whether he breached bail conditions at that time was unreliable and incredible.  I also consider that I would be justified in forming an adverse inference from that finding and accordingly on the balance of probabilities, that he did have a sexual relationship with the complainer and that he did breach the bail conditions.  In the circumstances of this case however I am not attempting to assess the evidence of a person of average cognitive ability but rather a person who has suffered from lifelong learning disabilities.  In these circumstances assessment of the witness is, in my view, extremely difficult.  I have already noted (see paragraph [15]) that the second respondent did attempt to answer all questions put to him.  His demeanour throughout his examination was appropriate.  Notwithstanding that, he gave evidence, which I have narrated at length, which was contradictory to not only evidence given by a police officer, referring to material in police records, which I had no reason to doubt but also contradicted matters spoken to in his own affidavit.  Having regard to these considerations I conclude that I cannot safely accept the second respondent’s evidence, save where it is supported by other reliable evidence.  In these circumstances it appears to me to be established on the balance of probabilities that the concerns harboured by the petitioners in relation to the second respondent’s sexual proclivities were justified.  In arriving at that conclusion I should make it clear that I am making no finding in relation to whether or not the sexual allegations made in 2010 were true or not.  The relevancy or otherwise of these allegations is not a matter for me, nor have I heard any evidence in relation to the relevancy of these matters.  My finding is confined to concluding that, notwithstanding the lack of any criminal conviction, there was material available to the petitioners at the time of the child EV’s birth relative to the second petitioner’s behaviour towards vulnerable females which they could not ignore and were required to have consideration of when formulating a policy or plan towards the ongoing care of the child EV.

[21]      Similar considerations apply in respect of the allegations about the second respondent’s threats uttered against social workers in the employment of the petitioners and his alleged utterance of a remark which could be construed as amounting to sexual interest in a minor.  In relation to the first of those matters, the utterance of threats of violence against the petitioner’s staff, those matters were spoken to by the two persons against whom the threats had been uttered.  The second respondent himself accepted that he had made the utterances but attempted to explain them away as merely being hot air or expressed in the heat of the moment.  Having regard to the nature of the threats, that he would kill a social worker if he and the first respondent did not obtain custody of the child, I do not consider that the social workers involved would be likely to ignore them as idle or made in jest.  Moreover I do not consider that it would have been appropriate for social workers charged with the responsibility of ensuring the care of an infant child to treat such remarks in that way.  It follows that there being evidence of the threats being uttered from both the persons who heard them and the person that made them it is my view that they were factors which the petitioners required to have regard to.  Exactly the same considerations apply in relation to the remarks about sexual interest in a minor child.  I consider that regard required to be had to that remark by the petitioners.

[22]      It follows from the foregoing that there was in my view plainly established before the court evidence of the concerns which caused the petitioners to proceed down the route of permanence which ultimately led to the presentation of this petition to the court. 

[23]      A further and important consequence of these concerns was that the continued relationship of the first and second respondent caused the petitioners to form the view that it was necessary to proceed with the petition for permanence.  The social worker primarily responsible for this case, who was the main witness for the petitioners, was clear that the views of the petitioners in this matter were critically based upon the consideration of the factor that the first and second respondents were a couple, with the first respondent making her position clear that she would not break up this partnership.  There was evidence before the court that the responsible social worker had discussed the first respondent’s relationship with the second respondent making it clear that if she left him the petitioners would reassess the case.  It was appreciated that the first respondent herself had difficulties in caring for an infant child.  It was however considered that efforts could be made to assist her and thereafter assess her suitability as a custodian for the child.  The evidence, repeated at proof by the first respondent, that she would not contemplate disrupting her relationship with the second respondent, had the effect of rendering that course impossible.

[24]      A number of other matters also require to be stated.  There was evidence that the second respondent said to nursing staff in the  hours immediately after EV’s birth that he was entitled to remove the child from hospital and would do so.  This may have caused, or at least been a factor, in the application for a CPO in respect of the child which was made shortly after birth.  There was no direct evidence from nursing staff about this matter.  In any event on the evidence of the responsible social workers this matter did not figure prominently in their subsequent management of the case.  I do not place any weight on it in reaching my decision.

[25]      There was evidence in relation to the parenting skills of both respondents.  In relation to the first respondent there was evidence which I accepted, of a lack of engagement with social workers, evidenced by failure to attend contact sessions and, further, inability to grasp other than the basic parenting skills, at such contact sessions which she attended.  The first respondent’s own expert social worker witness, Helen Stirling, expressed the view that even with extensive support from social workers: 

“It is likely that (the first respondent) might only even master physical care tasks, and not manage the more complex tasks of meeting EV’s emotional and social needs.”

 

The witness went further and stated:

 

“even if (the first respondent) had learned and retained these basic parenting skills, the more complex issue of concerns around the physical and emotional safety of (EV) and also her social and emotional development would remain.”

 

So far as the second respondent was concerned he had had very limited contact, just one session with EV.  In fairness it was not suggested on his behalf that he was able to demonstrate the necessary parenting skills required for the care of EV.  The highest that was suggested on his behalf was that he had the potential to develop a bond with EV, this based upon the evidence of Dr Woolfson who prepared a report and gave evidence.  Dr Woolfson’s evidence was, through no fault of his, based upon his observations of one contact session, a factor which I consider limits the utility of his views.  I accordingly considered his evidence of limited value in this case.  It should also be noted that in considering whether or not future contact between the second respondent and the child, in the event of adoption of the child, would be of benefit to the child he had he not taken into account a number of factors postulated as relevant by a Professor Triseliotis in a paper which Dr Woolfson accepted was relevant to consideration of this factor.  This consideration reinforces my view of the limited assistance gained from Dr Woolfson’s evidence.   

[26]      Lastly I should deal with the issue of contact.  The first respondent at present enjoys contact with the child.  The evidence was that whilst the child is not significantly disturbed by this contact she equally derives no significant benefit.  Her bond with the first respondent is no more than that which she exhibits towards other adults with whom she has periodic contact.  So far as the second respondent is concerned he has only enjoyed contact with the child on one occasion, that witnessed by Dr Woolfson to which I have already referred.  There is, as a matter of concession by counsel for the second respondent, no existing bond between the child and the second respondent.  I have already indicated that for the reasons explained in paragraph [25] I placed little weight on Dr Woolfson’s evidence in this case.  So far as benefit is concerned there was evidence which I accept to the effect that an adopted child settles better if there is no contact with his or her natural parent.  Having regard to these matters I am satisfied that there is no evidence of the child deriving any benefit from contact with either parent in this case.  Conversely there is evidence that the relationship with adoptive parents would be assisted if no contact was permitted.  In these circumstances I am not prepared to make an order for contact.

[27]      I should mention that there was some evidence in relation to the respondents’ difficulties in coping with financial matters and in relation to consistent maintenance of appropriate standards of cleanliness and hygiene in their accommodation.  While these matters were in my view proved they were of less significance in forming my opinion than the concern with which I have dealt at greater length.

[28]      On the basis of the foregoing I am of the view that the grounds in the petition have been established.  I am satisfied that both for the safety and welfare of the child throughout her childhood it is necessary that the orders sought should be granted.  In the circumstances I will grant the order sought in the prayer of the petition.