Sheriff Appeal Court refuses appeal against permanence order by recovering alcoholic mother

Sheriff Appeal Court
Sheriff Appeal Court

The Sheriff Appeal Court (Civil Division) has refused an appeal by a mother against the decision to grant a permanence order in respect of her 10-year-old son, Z, to allow him to stay with his maternal grandparents.

The order was originally sought by Scottish Borders Council to allow Z to remain with his grandparents along with his two older half-brothers. His mother, SRZ, sought for the child to live with her in north-east Scotland, where she now lived and worked.

The appeal was heard by Sheriff Principal Mhairi Stephen, sitting with Appeal Sheriff William Holligan and Appeal Sheriff Andrew McCulloch.

Alcohol issues

Following Z’s birth, he lived with his mother and half-brothers until April 2014. His father had no involvement in his upbringing. The appellant suffered from a serious bout of alcoholism from 2010 to 2014, and had experienced alcohol issues since 1995.

After an incident when Z was found alone in the garden while she was drunk in the house the children began to reside with their maternal grandparents. A compulsory supervision order regulating residence and contact had been in place since October 2014.

The appellant was hospitalised in 2017 due to liver damage after a relapse. Since September 2017 she had been supported by Community Mental Health and a drug and alcohol support group and had experienced no further relapses. She had supervised contact with Z for a few hours once every four weeks.

Scottish Borders Council applied for a permanence order in respect of Z, which was granted by the sheriff at Selkirk. The sheriff determined that residence with his mother would likely to be seriously detrimental to the welfare of Z, and made the order in the absence of a parenting assessment.

On appeal, it was submitted for the appellant that there was not sufficient evidence to allow the sheriff to make the inference of serious detriment, and that he could not make a permanence order in the absence of a parenting assessment. The sheriff had failed to have regard to her periods of abstinence between 1996 and 2011, and he had no evidence before him to conclude that previous relapse triggers could predict future harm.

The other two grounds of appeal were that the sheriff had not considered alternatives to a permanence order, in particular a residence order, and that the order made for contact was not appropriate in the circumstances.

Risk of relapse

The opinion of the court was delivered by Appeal Sheriff McCulloch. He began by outlining the circumstances, saying: “This was clearly an anxious case, where the appellant appears to have, after some time, taken steps to improve her health, and reduce the risk of relapse into alcoholism.” 

He continued: “This court is hampered by the absence of the notes of evidence, and we must therefore rely entirely on the sheriff’s findings in fact, and his note. Indeed no alternative findings of fact were proposed by the appellant.” 

Against this background, he first addressed the sheriff’s inference of serious detriment, saying: “We are satisfied that the sheriff has properly set out his findings and explained in his note how he has come to them. It is a fact that the appellant has a problem with alcohol. She has periods of abstinence, some longer than others. She is currently in such a period.”

However, he went on to say: “The sheriff found that there was a risk of relapse, and that when drunk, the appellant was not capable of caring for Z. He went on, correctly, to look at the effect on Z of a move to live with his mother, with the consequent loss of protective factors, which factors he fully identified. He found that both the risk of relapse, and the loss of protective factors made it likely that residence with the appellant would be seriously detrimental to his welfare. We are of the view that the sheriff’s approach and reasoning cannot be criticised.”

Properly considered child’s needs

On the absence of a parenting assessment, Appeal Sheriff McCulloch said: “The reason that no parenting assessment was carried out was largely due to the appellant’s own situation. She had a history of non-cooperation with everyone involved in the care of Z.”

He continued: “It is simply wrong to criticise the absence of a parenting assessment at this stage, when the main reason for there not being one was the appellant’s own attitude.”

Addressing the possibility of alternative orders, he said: “It is of course reasonable to argue, as the appellant did, that it would have been open to the sheriff to consider not just the granting of parental responsibilities and rights to the grandparents, but also the removal, or suspension, of some or all of the appellant’s own rights and responsibilities. This court is not aware whether this was advanced to the sheriff.”

He continued: “Be that as it may, the sheriff has properly considered what order best suits the child’s needs, and has properly explained how he has exercised his discretion in doing so.”

Finally, the issue of contact was addressed. Appeal Sheriff McCulloch said of this: “An award of contact is ultimately a question of judgement, and in the present case, we cannot say that the sheriff was plainly wrong. His reasoning is sound.”

He concluded: “Contact has increased in duration, is unsupervised and there are plans to move to overnight contact. For as long as the appellant remains sober, this can only be of benefit to Z.”

For these reasons, the appeal was refused on all grounds.

© Scottish Legal News Ltd 2021

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