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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MM v ES [1999] ScotCS 26 (19 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/26.html Cite as: [1999] ScotCS 26, [1999] 2 FLR 374, 1999 Fam LR 26, 1999 SLT 571, [1999] Fam Law 523, 1999 GWD 6-286, 1999 SC 388, 1999 SCLR 738

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On 7 April 1998, in a petition at the instance of ES, the sheriff at Airdrie pronounced an interlocutor in the following terms:

In terms of the Adoption Order issued by the sheriff on that date the sheriff directed the Registrar General for Scotland to make an entry recording the Adoption in the Adopted Children Register, and to cause the entry of the birth of the said child in the Register of Births to be marked with the word "Adopted". The child's natural mother MM was neither present nor represented on 7 April 1998, when the sheriff heard evidence and proceeded to pronounce the said interlocutor; and as appears from that interlocutor, the sheriff dispensed with the consent of MM on the ground inter alia that MM could not be found. Only subsequently did MM become aware that the interlocutor had been pronounced and the Adoption Order made. By interlocutor of 18 November 1998, this court allowed the present appeal by MM to be received late and to proceed out of time, and appointed Grounds of Appeal to be lodged. In addition, a Minute for the appellant has been lodged, as have Answers on behalf of the petitioner and respondent ES. Counsel for the appellant asked us to allow the appeal against the Adoption Order, to recall the interlocutor of 7 April 1998, to give directions to the Registrar General for Scotland (in terms of paragraph 4(3) of Schedule 1 to the Adoption (Scotland) Act 1978) to cancel the relevant entry in the Adopted Children Register, and any marking of an entry in that Register, or the Register of Births, effected in pursuance of the Adoption Order and to remit the

matter to the sheriff to proceed as accords.

The effect of an Adoption Order, in terms of section 12 of the Adoption (Scotland) Act 1978, would be to vest the parental rights and duties relating to LMS in ES, and to extinguish any parental right or duty relating to the child which immediately before the making of the order was vested in MM, she being a parent of the child. In terms of section 6 of the Act, in reaching any decision relating to the adoption of a child, a court is to have regard to all the circumstances, "first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood". In terms of section 16(1), an adoption order shall not be made unless (in the circumstances of this case) -

Subsection (2) lists among the grounds mentioned in subsection (1)(b)(ii) that the parent or guardian "(a) cannot be found or is incapable of giving agreement" and also "(c) has persistently failed without reasonable cause to discharge the parental duties in relation to the child". The present Adoption Order has been made upon the basis that the court was satisfied in terms of section 16(1)(b)(ii) that the agreement of MM to the making of the Adoption Order should be dispensed with on these two grounds specified in subsection (2). It is, however, to be noted that in terms of the petition, the

petitioner requested the court to dispense with the agreement of MM "on the ground that her present whereabouts are unknown and she cannot be found in terms of section 16(2)(a)" of the 1978 Act. The petition does not suggest that agreement could or should be dispensed with on the ground set out at section 16(2)(c).

The adoption proceedings were initiated on 30 April 1997. According to the petition, the intention to apply for an adoption order in relation to the child was notified to the Social Work Department on 18 April 1997. The local authority were then obliged in terms of section 22(2) of the Act to "investigate the matter" and submit to the court a report of their investigation. In terms of paragraph 2.21 of the Child Care and Maintenance Rules 1997 (which had come into force on 1 April 1997) a report by the local authority required by section 22(2) of the Act is to be lodged in process along with the petition; and Rule 2.21(3) provides that such a report is to include a number of specified matters. Among these matters is "(d) an account of the discussion with the parents or guardians of the child...about their wishes and the alternatives to adoption" and also "(f) an account of the search for a parent or guardian who cannot be found". While the expression "the" search is perhaps wide enough to cover any search that has been made, there is no apparent imposition of any duty upon those making the report to make a search themselves, and what appears to be envisaged is that if the petition is presented upon the basis that a parent cannot be found, that must have a foundation in some attempt to find, or "search", by or on behalf of the petitioner. The report subsequently submitted by the Social Work Department in terms of these provisions (according to which notification of intent to adopt was received on 2 May 1997) contains, under the heading "Social Worker's account for the search for any parent or guardian who cannot be found" the following paragraph:

By interlocutor of 4 November 1997, the sheriff reserved meantime the question of service upon any person, and appointed Stephen Fagan to be both reporting officer for the purposes specified in paragraph 21(1) of the Act of Sederunt (Adoption of Children) 1984, and also curator ad litem to the child, for the purpose of investigating and reporting to the court in terms of the Act and the Act of Sederunt. Mr. Fagan, having accepted these offices, wrote to the court on 6 February 1998 saying that he was "still endeavouring to locate the natural mother". In his report as reporting officer dated 16 March 1998, Mr. Fagan says:

In his report as curator ad litem, Mr. Fagan says inter alia that "the statements in the petition have been investigated and it appears that they are true". The duties of reporting officers and curators ad litem are set out in some detail in the Child Care and Maintenance Rules 1997, paragraph 2.26(1) and (2). There is in particular a duty upon a curator to "ascertain" whether the facts stated in the petition are correct and if they are not, to "establish" the true facts.

In addition to these reports, the Sheriff heard evidence from both the petitioner and her brother James, the natural father. While each of them said that they did not know where MM was, and gave evidence to the effect that she had not been in touch with either of them for a considerable period, neither said that they themselves had taken any steps to try to find her or to enable others to make contact with her. The Minute and Answers which are now available expand upon the past loss of contact; and the Answers state that the social worker who interviewed the petitioner, in the presence of the natural father, asked about tracing MM. The petitioner's averments are inter alia to the effect that she told the social worker that she knew MM had a father and a sister in Springboig, but that she did not have an address for them; and while there are averments of previous contacts with MM's sister and father, including the natural father taking LMS to see them, the petitioner states that she does not know and does not admit to what address her brother took the child. The appellant's position in her Minute is to the effect inter alia that the petitioner and her brother were able to contact her via her father; that until about April 1995 her father and sister lived at an address in Easterhouse, and then moved to an address in Springboig where they continue to reside; and that the child regularly visited the father and sister at both of these addresses, the sister usually transporting her, but sometimes the natural father bringing her for contact and collecting her. It is specifically averred that he brought her to and collected her from the Springboig address on a number of occasions, that the telephone number there was known to him, and indeed that he telephoned and spoke to the appellant's sister several times in the course of arranging contact with the child. The visits continued until about the end of 1996, when the father brought contact to an end. The Minute also contains a narrative of attempts by the social worker to trace MM's father, including writing to someone apparently of the same name without response, and to the appellant at an address similar to, but different from that where her family had lived in Easterhouse.

It is also to be noted that in January, February and March 1998 three letters were sent by a solicitor acting for the appellant to the natural father, in ignorance of the adoption proceedings, but in relation to arranging some contact between MM and her daughter. These letters were addressed to him care of the petitioner, and while none was quite correctly addressed, at least the second and third had the correct street number and a name for the street which (despite the omission of the word Avenue) was apparently unique in Airdrie, and could thus could be expected not to go astray. When giving evidence, the petitioner said that her brother was at her house every day for meals, and her Answers refer to her passing on mail to him unopened. The appellant not having been present or represented at the hearing before the Sheriff, neither the petitioner nor her brother was questioned either as to his knowledge of the address and telephone number of the appellant's father and sister, or as to the receipt of these letters. In addition to these points which may bear upon the question of whether the appellant could be "found", it is worth noting that she was evidently, by the beginning of 1998, attempting to arrange contact with her daughter, this being upon the basis that while she had been seriously affected by drugs over the previous years since the child was born, she was by that date recovering from drug use and having a relatively stable period in her life. These appear to be matters relevant to any issue in relation to Section 16(2)(c) of the 1978 Act, and questions of maintaining personal relations and direct contact with the child.

The question of whether a parent or guardian can or cannot be found is not only fundamental to the issue of dispensing with his or her agreement in terms of Section 16(1)(b)(ii) and (2)(a); it is also procedurally crucial, since paragraph 2.28 of the 1997 rules, providing for fixing a diet of hearing, requires the petitioner to intimate the diet to every person who "can be found" and whose agreement or consent to the making of the order is required to be given or dispensed with. In the present case, there was no intimation to MM, plainly upon the basis that she was someone who could not be found.

What is the meaning to be given to the words "can be found" in Rule 2.28, and "cannot be found" in Section 16(2)(a)? Counsel for the appellant referred us to the English case of re F (R) (an infant) [1969] 3 All E.R. 1101. While the statutes governing adoption in Scotland and England are now separate, it was submitted under reference to B v C 1996 S.L.T. 1370, the Lord President at page 1374L, that in construing the Scottish statutory provisions, reference to the English Courts' construction of similar English provisions is appropriate, and that it is desirable that the same construction be achieved in both jurisdictions. This is obvious, and was not disputed. The case of re F is plainly in point on this basis. There are also factual similarities. The parents of a child had parted, the child being left with the father. He, being unable to look after the child, handed him over to a couple who raised him as their own. The father consented to their adopting the child, and as they were not aware of the whereabouts of the mother, they took certain steps directed to finding her. She was written to her at her last known address, but the letter was returned as "gone away". Advertisements in the press brought no response. An adoption order was made, dispensing with her consent on the ground that she could not be found. Some months after the order had been made, she learned of it, and took steps to appeal. Her application for leave to appeal out of time was granted, and on the substantive matter, the adoption order was set aside and the matter remitted to the County Court Judge for reconsideration. In the Court of Appeal, Salmon L.J. expressed the view that the order for adoption had been the only possible order, on the material before the Judge who made it. But the Court of Appeal had before it an affidavit by the father of the child's mother, according to which he had lived at his present address for many years, and that the applicants had known him, and had indeed written to him two or three years before the adoption order was made. At page 1103E Salmon L.J. says this:

In general and as a matter of law, it was submitted that this passage correctly states the proper approach to construing the words "cannot be found": all reasonable steps must be taken, and if even only one reasonable step is omitted, one cannot say that the person cannot be found. This was not disputed on behalf of the petitioner, and is in our opinion right.

More particularly and at the factual level, this passage was said to provide assistance in two ways. First, it showed that where on behalf of an appellant new assertions of fact are made (as they were in that case by affidavit, and as they are in this case in the appellant's Minute) then while the Appeal Court will not be in a position to express any view as to whether the facts are as alleged, it ought to take cognisance of the averred facts; and if, on the hypothesis that they are true, they appear to show that a reasonable step was omitted, then further procedure will be required, to discover whether the averred facts can be established or not. And secondly, while the actual knowledge averred in that case perhaps went further than the averments made in the present Minute, this passage showed that enquiries could not be limited to a search for the appellant personally, but would involve taking all reasonable steps to inform persons such as relatives, if they could, by taking reasonable steps, be found.

New averments of this type may thus provide a basis for upholding an appeal. But it was also submitted that re F provided an additional and broader basis upon which an appeal such as this appellant's ought to be upheld. At pages 1103G to 1104A, Salmon L.J. continues as follows:

It was submitted that in this case likewise, quite apart from the averments as to what steps might be taken, a rehearing before the Sheriff was appropriate: it was accepted that (as was indicated in re F) the rehearing would not be concerned only with the question of whether MM had rightfully been treated as a person who could not be found, but with any competent issues as to agreement, dispensation and the whole merits of an adoption order, first consideration always being given to the need to safeguard and promote the welfare of the child in terms of Section 6 of the Act. What was important was that these issues should be addressed at a hearing where the mother as well as the petitioner would be able to appear and be represented.

On behalf of the petitioner and respondent, the general propositions advanced on behalf of the appellant were not disputed. What was emphasised was the primacy of the welfare of the child, and the need for this Court, like any Court taking any decision relating to adoption of the child, to have regard to all the circumstances. It was submitted that in the whole circumstances of this case, it would be going "too far and too fast" to quash the order and allow the appeal. Although, as in re F, the petitioner had relied upon Section 16(2)(a) alone, as a ground for dispensation, the facts were inextricably linked with those relevant to Section 16(2)(c), and the Sheriff had been satisfied that that ground also was established. The appellant having been allowed to appeal late, and having lodged her Minute, dealt only with ground (a), and said not a word as to whether the decision on ground (c) was open to any criticism. As in re F, the decision that had been taken was the only one open to the Sheriff, and in this case it had a basis quite separate from the issue of whether MM could have been found. A substantial period had now elapsed since the making of the adoption order. We should be very reluctant to quash that order, in the absence of even a prima facie case for attacking the Sheriff's decision on ground (c).

Moreover, the child had lived with the petitioner effectively all her life. Her whole world was there. Even if, as was apparently the case, the appellant said that she did not wish or intend to have custody of the child, she was plainly concerned to exercise parental rights, and to take part (as she had never done hitherto) in essential decisions in the child's life. For the child to have this possibility raised at this stage must be seen as disruptive and likely to be against her interests. With the making of the order, the child was entitled to see matters as having been put on a firm and reliable basis. One could not rub out what had in fact happened.

The request for a remit was essentially because of the absence of intimation, and the resultant loss of opportunity to address the Sheriff. Upon that basis, it was submitted that the matter could be remitted without having quashed the adoption order: the Sheriff could then consider whether there had been any failure in relation to ground (a), and could reconsider, in the light of any representations by MM, his decision on ground (c). Even if the question under ground (a) might seem to be a somewhat "esoteric point of law" once the parent had in fact been found, looking at the circumstances as a whole there was no material reason for thinking that the decision on ground (c) would be overturned. It was unnecessary to put everything back in the melting pot now: the order could stand, and the Sheriff after enquiry could report back to this Court. It was accepted that once MM was represented, any enquiry by the Sheriff, whether the adoption order had been quashed in advance or not, would be upon a new and extended basis, with a possibility that the Sheriff would require existing reports to be updated, MM now being available to be seen by those responsible for making reports. Nonetheless, it would be better for the order to stand while any such processes were carried through. A specific concern was the protection of the child in the interim. It was acknowledged that even if the order itself were to be quashed, the application would still be pending, and the restrictions on removal provided by Section 28(1) of the Act would apply, if the child had had her home with the petitioner for the five years preceding the application. But that time requirement is not apparently met, and it would be safer to have the order itself remaining in force. On the whole matter, it was submitted that we should refuse the appeal, or if unwilling to go so far, abstain from quashing the order, and remit to the Sheriff to report back to us. At the very least, we should make it plain that in any remit, the Sheriff was still entitled to hold that the appellant was someone who could not have been found, and to dispense with her agreement on that basis, notwithstanding that she had appeared before him and might have made representations on any other grounds for dispensation.

We are satisfied that the matters raised in the Minute, taken along with terms of the reports and the limited scope of the evidence heard by the Sheriff in relation to ground (a), raise an issue as to whether all reasonable steps were taken to find the appellant, which makes a rehearing before the Sheriff necessary. We do not think it appropriate for us to comment further on that issue, or on what steps the Sheriff may see as appropriate in investigating it. We would however add that while, as in re F, we see it as a matter for the Sheriff, within the scope of the remit, to consider (if asked to do so) whether the appellant could be found, at the date of his original decision, the remit will be upon the basis that his original interlocutor has been recalled, so that he will be considering, in exercise of his powers under Section 16(1)(b) of the Act, whether he is, at the time of making a decision which he now requires to make, satisfied that the appellant's agreement should be dispensed with on any of the grounds specified in sub-section (2). At that date, with the appellant represented, it is not easy to see any place for ground (a); and even if it were appropriate to look at that ground as at the earlier date, and to hold it established, it is not easy to see why a Court, even given that ground, should feel satisfied, in terms of Section 16(1)(b)(ii) that the appellant's agreement should be dispensed with, if she is in fact present, and says that she does not agree. In practical and realistic terms, and in particular having regard to all the actual circumstances in terms of Section 6 of the Act, it appears to us that issues as to whether the appellant can be found are now perhaps best seen as spent.

The position as regards ground (c) is unsatisfactory in several ways. Where ground (a) is available, we can well understand a petitioner who, as in re F and perhaps this case, is content to proceed only upon that ground, and not to open up the complex and perhaps hurtful issues involved in ground (c). While we would not go so far as to see the two matters as "inextricably linked", as suggested by counsel for the petitioner, we can well understand how, when oral evidence is given, much may emerge which is relevant to ground (c), even when it has not been founded upon. We do not criticise the Sheriff for reaching the decision he did on this matter. But the fact remains that the Sheriff was proceeding upon only one view of these matters. We see a remit as necessary on Salmon L.J.'s broad ground; and with matters starting again, we see no obligation on MM to state her case in advance. Whatever one does, matters are now back in the melting pot. The appeal is allowed in the terms sought, the sheriff's interlocutor being recalled, the Adoption Order quashed and the appropriate direction given to the Registrar General.