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Permanence: beyond the past

18 August 14

Past behaviour of a parent is not the sole focus in a permanence application

by Lora Meldrum

The judgment in the case of City of Edinburgh Council v WX and YZ (Livingston Sheriff Court) was recently published on the Scottish Courts website. The case serves as a reminder of the importance of giving proper consideration to parents’ current circumstances in proceedings for permanence orders.

The case involved two children aged nine and 11, who had been the subject of social work intervention and children’s hearing proceedings for about seven years and at the time of proof had been in kinship care for approximately six years.

Permanence proceedings were brought by the council against the mother. The father, who did not have parental rights and responsibilities in respect of either child, participated in the proceedings as an interested party. At the time the case went to proof, the mother was exercising regular non-residential contact and the father was exercising residential contact each fortnight.

By way of a brief explanation of the background, the children had been parented with little difficulty for the first few years of their lives. Circumstances overtook and both parents became drug users. The mother also became involved in prostitution and ended up on a witness protection program as a result of certain criminal associations. There was no doubt that the lifestyle choices of the parents over a number of years were entirely unsatisfactory and detrimental to the children. Both parents accepted this, both were regretful of their previous poor choices and, most importantly, they had both successfully tackled their problems. By the time of proof both were stable on methadone prescriptions. The father was considered suitable to have regular residential contact with the children. The mother had relocated to England and had another child in respect of whom there was no social work involvement, appropriate assessments having been conducted by the relevant authorities. Both children had clearly, consistently and repeatedly expressed a desire to return to the care of their parents, preferably their mother.

The petitioners contended that it would be likely to be seriously detrimental to the children if they were to reside with their mother, and sought permanence orders. Initially they sought to reduce the mother’s contact to four times per year and made no suggestion as to what contact the father could exercise in the event that permanence orders were granted. Once the proof was underway the petitioners amended the petitions to include provision for contact with the father.

Professional views

During 10 days of proof, a number of social workers gave evidence on behalf of the petitioners. It became apparent that there was a focus on the mother’s past conduct and that much less weight was being placed on the efforts that she had made to effectively transform her life. No doubt the factual circumstances were complicated and it was not an easy task to try to decide on the best course of action in terms of securing the best interests of the children. However it became apparent that very little investigation had been undertaken into the mother’s present circumstances, and it appeared that the door had been closed on the possibility of the children returning to her care based on her past conduct. Furthermore, the social workers and a psychologist led on behalf of the petitioners did not consider that there was a sufficient attachment between the children and their mother. A child psychologist led on behalf of the mother disagreed with that evidence, and considered that there was a significant attachment between the children and their mother. His evidence was preferred.

Ultimately the sheriff decided that the mother had been successful in turning her life around, and that in light of her current circumstances the petitioners had not established that it would be likely to be seriously detrimental to the children’s welfare if they were to reside with her. Thus permanence orders were refused in respect of both children.

While historic events are certainly relevant in such cases, the importance of current circumstances should not be undermined. Proper consideration ought to be given to the present position of parents, rather than focusing on past failings and historic patterns. Their present position should be investigated and considered not only at the stage of addressing a court on whether the serious detriment test has been met, but also at the initial stages of making a decision regarding whether or not to raise permanence proceedings in a particular case.

Lora Meldrum, Allcourt Solicitors, Livingston. The firm acted for the father in the case discussed.

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