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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> DN v LJ & Anor [2004] ScotSC 68 (21 October 2004) URL: http://www.bailii.org/scot/cases/ScotSC/2004/68.html Cite as: [2004] ScotSC 68

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JUDGEMENT OF SHERIFF G J EVANS

in causa

DN

PURSUER

against

LJ

DEFENDER

and

THE FIFE COUNCIL

incorporated by and acting under the terms provisions of the Local Government (Scotland) Act 1994 and having their principal offices at Fife House, North Street, Glenrothes, Fife, KY5 7LT

THIRD PARTY MINUTER

CUPAR, 21 October 2004. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

1. The pursuer is the mother of JN, the putative father of the child LJJ, born to the defender, LJ, on 3 July 2001 (and hereinafter referred to as "the child"). The local authority, Fife Council, as third party minuter, are opposed to the order sought by the pursuer as the child is currently the subject of a separate application by them for an order freeing the child for adoption.
2. The pursuer, who is aged 46, married JIN in 1975. There are four now adult children of their marriage, viz M (29), J1 (26)(the child's father), J2 (24), G (20) and one child still in his teens, viz S (13). In addition to the child's father, J1, the pursuer's two older sons, J2 and G have both been involved with illegal hard drugs since their teens and remain addicted to them. S so far is not so involved and shows signs of remaining drug free.
3. The pursuer separated from JIN about twelve years ago. The pursuer's own parents and a brother and sister also have an address in the town where the pursuer herself was brought up. The pursuer's house has three bedrooms and she would have sufficient and adequate accommodation for the child to live with her there. She keeps her house neat and tidy and well looked after.
4. Her husband, JIN, resides in the town where his own parents and four brothers and one sister also live. Neither the pursuer or her husband wish to live where the other lives. The pursuer visits her husband and sometimes tidies up his house for him. They have recently resumed an intimate relationship but choose to continue to live apart.
5. The pursuer is in the habit of staying overnight mostly at weekends at Mr N's bringing S with her. S also spends some time staying with his sister, M, who has five children by her partner, GD. M does not permit her older brothers to have any contact with her own children within her own home. The pursuer's husband allows visits to his home by his drug addicted sons but maintains that he would protect the child from their influence.
6. At the time of his birth, the child's parents were both intravenous drug abusers of several years standing. The child had to be moved at birth to the neo-natal unit to manage his neo-natal abstinence syndrome. He was detained in hospital until 10 September 2001.
7. The child and the defender then moved into the YMCA mother and baby unit where they remained until about 19 November 2001.
8. The defender from 22 November 2001 to 1 February 2002 lived a chaotic lifestyle moving from house to house. The Social Work Department kept in daily touch with the defender throughout this time and were unaware of any contact between the pursuer, the defender and the child nor did the pursuer convey any concerns to the Social Work Department about the child's lifestyle during this period.
9. On 1 February 2002, the child was taken into care without the pursuer taking any steps immediately thereafter to make contact with him or to be given any information about his welfare.
10. The child was originally placed in foster care with Mrs AC in April 2002 and thereafter in what was supposed to be short term care with Mr and Mrs R from 31 July 2003 to February 2004. The child was then transferred to his final set of foster parents, who are the prospective adopters, from February 2004 up until the present day.
11. While in foster care, contact with the defender took place with the child being taken to his maternal grandmother's, ie DM, on a fortnightly basis for one and a half hour periods.
12. On 29 April 2003 the adoption and fostering panel met to consider the child's future and Wendy Halliday was subsequently asked to contact the pursuer, she having written to JN as the putative father asking if anyone in the family was available to take care of the child.
13. On 7 May 2003 Miss Halliday contacted the pursuer and arranged to meet her on 13 May 2003 to discuss the child's future, but the pursuer phoned to say she could not make that appointment.
14. On 3 June 2003 JN attended the Social Work Department and provided it with two contact numbers for the pursuer. Miss Halliday was able to contact the pursuer and saw her by arrangement on 10 June 2003.
15. At that point, the pursuer advised Miss Halliday that she wished to take over the child's care and that she did not like the idea of him being adopted. The Social Work Department subsequently arranged a contact visit with the child for a period of one hour in the presence of other members of the family.
16. The amount of contact thereafter afforded to the pursuer has not resulted in the creation of any special or meaningful bond between her and said child.
17. The pursuer does not work and would be in a position to look after the child full time. Her intention would be to ensure that the child had no contact with illegal drug users but she would intend to allow him contact with her seven other grandchildren, her daughter M and her husband, and any other suitable members of her extended family.
18. The pursuer would not find it easy to handle conflict with the child's natural mother and that would have an adverse effect on said child.
19. There is risk to the child's stability and security in the pursuer's circumstances given her physical separation from her husband and the fact that if left temporarily with others in the family he might be exposed to drug using family members without sufficient supervision and protection.
20. The child is happy and well settled with his current foster carers who have a great affection for him. Given his unsettled background to date and the number of previous foster carers that he has so far had, it would have a devastating effect on him to be moved yet again from his present carers.

FINDS-IN-FACT-AND-IN-LAW:-

1. It would not be in the best interests of said child that the pursuer be granted parental rights and responsibilities thereto.
2. It would not be in the best interests of said child that the pursuer be granted a residence order or a contact order in respect of said child.

Accordingly Repels the pleas-in-law for the pursuer and Sustains the pleas-in-law for the third party; Refuses the pursuer's craves and Decerns; Reserves meantime the question of expenses and Fixes 24 November 2004 at 10.00am as a hearing thereon.

Sheriff

NOTE:-

This was a proof on Record, No 14 of Process, in which the pursuer seeks to have parental rights and responsibilities conferred on her in respect of her grandchild, LJJ, aged 3. The nominal defender is the child's mother and Fife Council as third party minuters are opposed to the pursuer's action as they have applied in a separate action for an order freeing the child for adoption. Mrs Howitt appeared for the pursuer and the second defender was absent and unrepresented. Mr Sharpe, Advocate, appeared for the third party minuter. Parties were agreed that I should hold the local authority application in abeyance and determine the grandmother's action first and I was persuaded to follow this course of action despite some reservations in light of what was done in the past in similar circumstances (vide AB and CD petitioners 1992 SLT 1064). I heard evidence over three days, viz 26 March, 2 April and 30 April 2004. The pursuer gave her evidence on her own behalf, and was supported by her husband, JN, her daughter MN, two of her former neighbours, KL and BM, and lastly DM, the child's maternal grandmother. The evidence for the third party minuter was given by two witnesses, viz Wiltrude McElligott, Senior Practitioner, Social Worker, Children and Families Team, Social Work Department and Wendy Halliday, Social Worker, Children and Families Team, Social Work Department. There was also a Joint Minute of Admissions for the parties agreeing that "the report by G A M Sandilands, dated 5 August 2003, lodged in process as production No 1 for the third party minuter is true and accurate in its terms."

Mrs Howitt for the pursuer submitted that all that the pursuer wanted was an opportunity to look after L, to see him and to have contact with him on a proper legal basis and not at the behest of the Social Work Department. Primarily of course she wanted full parental rights and responsibilities and a locus in the application for a freeing order. The situation had moved on since Mr Sandiland's report which is now almost a year old. On the evidence, I should accept that the child did know the pursuer and went to her willingly. I should accept the pursuer's account of the facts here. She presented as a genuine person who had come to court knowing that she would be subject to close scrutiny. It showed a determination on her part to achieve her goal. It was appreciated that it would take a great deal to change the child's status quo but he had had a lot of moves already. This particularly one would be in the child's long term best interests and I should grant the craves in the action.

Mr Sharpe for the third party minuter invited me to repel the pursuer's pleas in law and sustain those of the third party minuter. The pursuer's decision to raise her action had come very late in the day and the third party minuter was entitled to query her bona fides in that regard. It was disingenuous of her to suggest that she had no idea how to go about it. Her lack of action should give the court ground for real concern, as should the fact that she had managed to obtain backdoor contact to the child without the knowledge or consent of the Social Work Department. Mr Sharpe relied on the terms of the Report by Mr Sandilands, who had come to the conclusion that "there are too many "ifs and buts" in relation to Mrs N's offer to make it viable." I should also attach weight to the views of Wiltrude McElligott who had come to the case with an open mind. There could be no order for parental rights and responsibilities unless it would improve the position of the child and, as was stated in Butterworth's Scottish Family Law Service at Division C, para [589]:-

I was also referred in this regard to the case of Breingan v Jamieson 1993 SLT186 at 190. The prospective adopters had become very attached to the child and there was no good reason advanced for interfering with his evident progress there. The pursuer's lack of action in the past was subject to comment. She had said that she did not want to cause any trouble by going up to Mrs M's door but Mrs M had said that they had a very good relationship and the pursuer would not have needed an invitation. She could have acted more positively at a more decisive point in the child's development and it was now too late for her to try to do so when the child was flourishing under its present care arrangements. The craves for parental rights and responsibilities should be refused in their entirety.

The pursuer's application in respect of her grandchild has brought out a number of positive factors in her proposal to care for him in a full time way and it has proved very difficult to weigh up the competing advantages and disadvantages. While three of her sons, including the child's father, have got heavily involved with illegal drugs, the fact remains that she has been able to protect her youngest son, S, from the drugs scene, so why should she not be able to protect her grandchild? Her neighbours obviously think a lot of her as a competent caring person used to looking after children and I have no reason to doubt their evidence in that regard. With her the child would retain its family identity and enjoy extensive family contact and be physically well looked after by a loving grandmother - all desirable ends. There is too strong family support for the pursuer's plans both from her own family and that of the defender. There is a letter in process from the defender requesting that the pursuer be granted the rights and responsibilities that she now seeks. The pursuer's daughter, M, explained her position in evidence as follows. She would go and visit the pursuer who looked after her children on a Friday night. She could be at her place all day. She herself never used drugs whereas her two brothers J1 and G were on heroin. She saw her brothers quite often but did not let her own children near them. She sometimes visited her father but only with her younger children. Her brothers came to the door but did not usually get in when she was there. They knew that they would not be allowed unsupervised contact with her children. She trusted her father not to leave her own children with these brothers. S saw his brothers at his father's. They did not go to the pursuer's house. She felt that S was not being put at risk. Her brothers came to her door but were not let in. Her children did see them but not that often and never unsupervised. She considered that L would not be at risk at her father's if his visits were supervised. Under cross-examination she agreed that there was little initial contact between the pursuer and the child but her explanation was that the child's mother never invited the pursuer to babysit. She supported the pursuer's application. The pursuer's husband explained that he saw M two or three times a week. She had five children of her own and he saw them all the time. He got on very well with Scott and saw him every week depending on his work shift. S stayed over but not every weekend and there were no problems. As to G and J1 they did have problems and were drug addicts. There were no problems when they were teenagers and it started mainly when they were around 14 and 15 and just about to leave school when they stayed out a lot. This witness stated that he saw his sons quite regularly. They came to the door to see him. You could see them quite regularly coming down the pathway and walking past as well. They came to the door three or four days on the trot and he might not see them again for three to four weeks. What he did was to bring them in and offer them a cup of tea and bit of a chat and when they came to see him they were okay. When he turned them away there was no argument and they "ken their place." He admitted that they had been in his house when S was there and he had heard them say to S "you better never end like the both of us". In his view they would never entice S to do the same thing. He considered that S was not put at risk by their presence and nor would L be either. He admitted however that a packet of needles once fell out of G's pocket in his house. That was four to six months before his interview with Wiltrude McElligott. It never happened again and in future he would search their pockets if they came while S or L was there. If the pursuer were to get custody of L, she would be the main carer and make the main decisions for him but he would help as and when he could. Under cross-examination he admitted that both the pursuer and himself had known that their son was a drug addict when LN became pregnant and it did cross their mind that LN was also involved in drugs. He was seeing the pursuer at that time and he talked about it with her. He admitted that he had not previously detected any needles on G's person. G had lied to him about not using needles. He would accept that J3 (ie M's youngest child of two) could be at risk if G had needles in his pocket. This witness however saw nothing untoward about that because as he put it the same was true of being out in the street. Needles like that were lying all over the place. Mrs M in her evidence confirmed that she supported the application. In her view the pursuer was a very strong person who could handle it as she had with S. She was really good. She would be strong enough to turn her daughter away if she came to the door. She could not see her daughter going over. She did not know where the address was and she had no means of finding out. With a drug habit she could not afford the bus fare. It was not as though the child did not know that the pursuer was his granny. He did know who she was and she was not just another person. She was his granny. Under cross-examination she confirmed that the pursuer could have seen the child at a very early stage and would have known that she did not require an invitation before coming to this witness's house to see the child.

The overall effect of this body of evidence was to present the pursuer as a strong person who had bonded well with the child and was able to protect it from the risk of harm from its own parents and from others in the family. Considering the history of her involvement with the child, however, and the assessment of her by the child professionals in the case, I have great difficulty in accepting any of that. I reject the evidence that the pursuer is a strong and determined person. She is well meaning and good natured with a fund of affection for the child, but not much more. She did not intervene at any stage while the defender was moving from house to house before the child was taken into care although, as the pursuer's husband made clear, she was aware of the drugs background of the parents and the reason for the child's hospitalisation after birth. It was not until she learned of the plan for adoption that she became interested in the child's welfare, ie when the child was by then almost two years old, and that only after prompting by the child's father. Through her solicitor, she has accepted that Mr Sandiland's report is a true report and in gremio of that report it is stated: "Mrs N accepted openly that apart from seeing L on a couple of occasions she had had nothing to do with him since his birth." It may be that there was further contact at Mrs M's unbeknown to the Social Work Department and there was certainly evidence of that. The fact remains, however, that the pursuer did not intervene in any decisive or determined way at a much earlier and crucial stage in the child's life and thus there was no early bonding with the child. The view of both Wendy Halliday and Wiltrude McElligott was that the pursuer was not recognised by the child as having any special significance or role in its life and that is confirmed in Mr Sandiland's report. That all might be overlooked if there was any certainty about how the pursuer might cope with protecting the child both from contact with the defender and the child's father and from members of her own family who are involved with drugs. There is a basic unsatisfactoriness about the pursuer's open ended and uncommitted relationship with her husband in this context. That was a factor stressed by Wiltrude McElligott in her evidence: "It was the uncertainty that worried me. What did resumption of intimate relationships mean? Would L become a burden to her or she become resentful of him? That sort of thing." Apart from the psychological impact of the presence of L, however, to my mind the weakness in the arrangement is that the pursuer and her husband (who does not see her application as in any sense a joint venture and is more inclined to take a back seat over the future care of L) do not present any kind of united front over who should or should not have contact with the child nor how that contact should be managed. While the pursuer might feel that she can keep the defender at bay by not disclosing her address to her, there is no guarantee that she would not come across the defender at her husband's house when she visited him. Her husband said in his evidence "I saw LN quite a lot. She used to come and go to and from in the Scheme. She came to my house twice with L." The pursuer could quite easily be confronted by the defender there again and it would be difficult for her, given her good nature, to refuse the defender any contact with the child at a time when she was trying to be its principal carer with a strong maternal bond. The same would apply to the child seeing its natural father in that setting as well. It would be confusing and destructive of his wellbeing for him to cope with a reintroduction to his natural parents at that particular stage. Nor am I satisfied with the view that the child would be protected from the other drug users in the family. While M can do so successfully, the same might well not apply to the pursuer. There would be occasions when she would have to leave the child in the care of her husband with the real risk that his drug using sons would visit. The health risks to a child from physical contact are fairly obvious and I thought that Mr N's view on this topic was too sanguine and that he would not do sufficient to protect the child. In short I agree with the summary produced by Wiltrude McElligott and confirmed by her and by Wendy Halliday in her evidence viz:-

That expresses my own concerns exactly. Given that I share this view, I conclude that it is in the best interests of the child to refuse the various craves sought by the pursuer. I agree with Mr Sharpe that in this situation, the status quo is highly important and should not be disturbed in any way. It is clear to me that the best interests of the child will be served by him continuing to live with his present carers without any impact from his natural family. He was taken into care at a very early stage when he was only seven months old and in the space of the next two years has had to go through three separate foster carers but with the last of such carers he is clearly thriving and happy. To take him out of such a setting and have to reintroduce him into a very uncertain and risky future with the pursuer is clearly not in his best interest.

I have accordingly refused the pursuer's craves and have reserved the matter of expenses to a later hearing.