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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aberdeen City Council, Re Application For An Order Declaring A Child Free For Adoption [1999] ScotCS 45 (11 February 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/45.html Cite as: [1999] ScotCS 45

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The appellant appeals against the decision of the Sheriff Principal to refuse his appeal against the decision of the Sheriff in which he granted an order freeing a child G.J. for adoption under section 18 of the Adoption (Scotland) Act 1978.

The appeal arises in the following circumstances. In 1988 the appellant, who is a Nigerian, entered the United Kingdom. Thereafter he had a relationship with the wife of his brother D.J. She gave birth to the child G.J. in New York on 15 February 1993. The appellant claims to be the father of the child, although he was not so named on his birth certificate. Following the birth the mother returned to live in

Aberdeen. She developed significant mental health problems and had difficulties in looking after the child who had to be taken into care by the respondents on a number of occasions. On 3 September 1997 the respondents applied to the Sheriff in Aberdeen for an order freeing G.J. for adoption. On 8 and 20 September 1997 the appellant and G.J's mother entered into what purported to be a parental rights agreement under section 4 of the Children (Scotland) Act 1995. The appellant had been in custody from 6 June 1996 to 12 September 1997. He had been convicted of fraud and steps were taken to order his deportation. He pursued an appeal against

his deportation as far as the Immigration Appeal Tribunal. On 16 April 1997 the tribunal gave him the opportunity to resolve the question of the paternity of G.J., pending the proceedings before them. He raised such proceedings but thereafter they were sisted.

On 20 October 1997 the Sheriff appointed reporting officers in respect of, firstly, the mother of G.J.; and secondly, the appellant and D.J., the latter to be curator ad litem to G.J. On 11 December 1997 the Sheriff assigned 12 January 1998 as a diet for hearing the application by the respondents, and appointed notice of the diet to be intimated to, inter alios, the appellant and D.J. On 12 January 1998 in respect that the petition remained opposed the Sheriff appointed parties to be heard on 23 and 24 March 1998. At the hearing on 23 March the appellant was present, but he was not represented by the solicitors who had represented him on 12 January, since they had intimated their withdrawal from acting for him on 19 March. The appellant invited the Sheriff to continue his hearing to a later date in order that his legal aid application could be dealt with and that he could be represented by a solicitor. Having heard the appellant and the representative of the respondents, the Sheriff dispensed with the consent of D.J. and G.J's mother, the first on the grounds that he could not be found and that if he could be found, he was withholding his agreement unreasonably, and the second on the grounds that she was withholding her agreement unreasonably and had persistently failed, without reasonable cause, to fulfil her parental responsibility to safeguard and promote the child's health, development and welfare. He continued the proof as part heard to 29 and 30 April 1998. Thereafter the sheriff clerk received a letter from the solicitors who had been acting for the appellant dated 27 March 1998. In that letter they acknowledged receiving notice of the hearing, but stated that they had withdrawn from acting due to difficulties in getting the necessary legal aid form back from the appellant duly completed. Having received the form from him since 23 March they had submitted the application. There was every possibility that legal aid would be granted, but they would not resume acting for him until this happened. In the meantime it was preferable that the court should intimate the hearing directly to the appellant. At the hearing on 29 April 1998 the appellant was neither present nor represented. He had been taken back into custody on 15 April. The Sheriff had before him a further letter from the solicitors dated 27 April. In that letter they stated that they would act for the appellant if legal aid was granted. The application had been finally submitted on 25 March, but it had not yet been granted. Therefore they were not prepared to resume acting for him in this matter. The solicitors also stated that the appellant was opposing the respondents' application. He would not be able to attend on 29 and 30 April, and they did not intend to do so. There were grounds for judicial review of the decision of the Immigration Appeal Tribunal which had led to his being detained once more, but he was unlikely to obtain interim liberation by 29 April. The appellant had been instructed by them to apply to the Children's Hearing to secure contact with G.J. The solicitors suggested that in the circumstances the court might feel it appropriate to discharge the hearing on 29 and 30 April. The respondents opposed the discharge, and the Sheriff decided to proceed with the hearing in the appellant's absence, under reference to Rule 2.11(3) of the Child Care and Maintenance Rules 1997 which provides that:

Having heard the petitioner the Sheriff dispensed with the consent of the appellant on the ground that he was withholding his agreement unreasonably, and had persistently failed, without reasonable cause, to maintain personal relations and direct contact with G.J. on a regular basis; and granted the order freeing G.J. for adoption. A note of appeal was lodged by solicitors on behalf of the appellant. The appeal before the Sheriff Principal, at which the appellant was represented, took place on 28 July 1998. The Sheriff Principal refused the appeal, and adhered to the Sheriff's interlocutor. Thereafter the appellant appealed to this court. Initially he acted on his own behalf and lodged his own grounds of appeal. However, at the hearing of the appeal he was represented by counsel.

In his note the Sheriff explains that on 23 March 1998 he made it plain to the appellant that, given the nature of the proceedings and the desirability for decisions regarding the future of the child to be made sooner rather than later, he would be less sympathetic to any further motions for continuations on the ground that legal aid was not available. He urged the appellant to pass on his views to his agents and that he should ensure that his application for legal aid was dealt with expeditiously. As regards what occurred on 29 April 1998, he stated that, despite having some reservations, he considered the content of the letter from the solicitors dated 27 April. He noted that no application for legal aid had been lodged as at 23 March and that any delay appeared to be the result of the difficulties in obtaining the necessary legal aid application form back from the appellant duly completed. He was not persuaded that the lack of legal aid, and thus the non-appearance of agents on his behalf, amounted of itself to sufficient grounds for a further continuation. As regards the fact that the appellant was in detention, there was no indication that the agents had attempted to follow the procedure for securing his personal attendance, as set out in Macphail on Sheriff Court Practice, page 543. Further, the agent's letter had given no indication of what problems, in relation to any preparations, had been caused by his detention. The Sheriff also formed the view that for two reasons the appellant's prospects of establishing contact with G.J. through a Children's Hearing were remote. Firstly, he was informed by the respondents' agent that the appellant had expressed a wish not to have any contact with the child until he was 16 years of age and had, in 1994, refused to become involved in his care. Secondly, he was of the view that the appellant had no right to appear at any Children's Hearing, the parental rights agreement being of no effect for this purpose. In the absence of rebuttal of the presumption that D.J. was the father of G.J., the appellant was not in his view in a position to assert any parental rights. He raised in court the question of his right to appear as an entitled person, merely by virtue of the agreement, in the light of the presumption that his brother D.J. was the father of G.J. He was informed by the respondents' agent that the petitioners felt that they must take heed of the agreement and acknowledge the appellant as an entitled person. The respondents thus sought to dispense with his consent rather than to obtain any decision regarding his entitlement to appear. Finally, the Sheriff considered that while the court should have the fullest possible information, no indication had been given as to the nature of the information, or its relevance to the issue for the court, which would justify a further continuation. Having considered the letter and heard the respondents' agent in opposition to a further continuation, he was not persuaded that the matters raised therein, taken individually or collectively, constituted sufficient grounds for a second continuation of the hearing.

In his note the Sheriff Principal states that the Sheriff was not obliged to look at the agent's letter. In any event he did not err in the exercise of his discretion. Before the Sheriff Principal the respondents, despite their previous attitude, took the view that the agreement did not confer on the appellant the status of father, and that unless and until he obtained declarator to that effect he had no locus in the current process. The Sheriff Principal indicated his agreement with that view, observing that there was no question of the respondents being personally barred from raising that point on appeal. It seemed to him that the court was entitled and indeed bound to take account of such a material point whenever it was raised. The agent for the appellant had argued that where the future of a child was concerned it was important that it should be resolved correctly in the light of a full knowledge of the facts. The Sheriff had denied the appellant the opportunity of denying or explaining the allegations made about his lack of involvement with or concern for the child in the past. The Sheriff Principal rejected this argument stating that when the Sheriff had decided not to discharge the diet he was entitled to determine the application without hearing oral evidence. The appellant could have given evidence on 23 March or 29 April. Neither the Sheriff nor he had been told what relevant evidence he wanted to give. The Sheriff had been entirely justified in holding that the appellant had no real prospect of obtaining a contact order in respect of G.J. and that he was withholding his consent unreasonably.

For the appellant Mr. Kelly sought to correct the impression that no application for legal aid had been made until 25 March 1998. His information was that the Scottish Legal Aid Board had indicated that application had previously been made on behalf of the appellant but it had not been regarded as complete. Accordingly the Sheriff had proceeded on the basis of what was not necessarily the case. Further, the Sheriff had not given the appellant any opportunity to be told that arrangements could be made for him to attend the hearing. However, a prisoner could not assert a right of physical access to the courts (cf. R. v. Secretary of State for the Home Department ex parte Wynne [1992] 2 All E.R. 301). It had not been recognised that on 23 March 1998 it was not known that the appellant was going to be in detention when the hearing took place. There had been a failure to take into account the implications of his being in detention. As regards the appellant's prospects of obtaining contact with G.J., the Sheriff had been given misleading information. Reference to the child care reviews carried out by the Social Work Department showed that the appellant had provided funds to enable G.J. and his mother to go to Nigeria in 1995. He had showed that he very much wanted to care for G.J. However, during his periods of detention since that time he had been unable to offer an appropriate place in which G.J. could visit him.

The main point to which Mr. Kelly directed his submissions was the right which the appellant had to be heard in regard to the application for the freeing of G.J. for adoption, and the responsibility of the court for proceeding on incomplete information which bore upon the question whether that application should be granted. In terms of section 6(1) of the Adoption (Scotland) Act 1978, in reaching any decision relating to the adoption of a child, the court or adoption agency had to have regard to all circumstances and, in terms of para. (a):

Mr. Kelly submitted that even if the appellant might not be a person who had the right to object to the order being made, he was entitled to be heard before the Sheriff reached his decision. Notice of the hearing was given to the appellant, and the Sheriff proceeded on the basis that he was a "parent" as defined in section 65(1) of the 1978 Act. Otherwise the Sheriff's order dispensing with his consent would have been invalid. The Social Work Department had treated the appellant throughout as the natural father of G.J. It was not open to the respondents to dispute what had been conceded before the Sheriff. If there was any dispute as to whether or not the appellant was G.J's father, this could be resolved within the present proceedings. The respondents themselves had a responsibility under the Adoption Agencies (Scotland) Regulations 1996 to ascertain the intentions of the genetic father (Regulation 14(2)). Mr. Kelly also placed some reliance on the terms of section 24(3) of the 1978 Act which provides that in considering whether to make an order under section 18(1) for the freeing of a child for adoption

In regard to the right of a person to be heard Mr. Kelly referred to Inland Revenue v. Barrs 1961 S.C. (H.L.) 22, per Lord Reid at page 30. For examples of the wrongful exercise of discretion in regard to an adjournment he referred to Priddle v. Fisher & Sons [1968] 3 All E.R. 506; and R. v. Thames Magistrates' Court ex parte Polemis [1974] 2 All E.R. 1219. The failure to accord a hearing could constitute a failure to comply with Article 6(1) of the European Convention on Human Rights and Freedoms (Keegan v. Ireland (1994) 18 EHRR 342).

For the respondents Mr. Ross disputed the appellant's right to be heard in the Sheriff Court. The Sheriff had treated the appellant as if he was the father of G.J. but this did not tie the hands of the court. The Sheriff was not bound to take the appellant's views into consideration. The appellant had no right to insist on being heard. It had to be recognised that the appellant had no real locus and was no more important than, for example, foster parents. The court had to follow the presumption that D.J. was G.J's father. Whether the appellant was in fact the father was a matter which could be resolved only in other proceedings. If it were otherwise there would be a risk of the proceedings for the freeing of G.J. for adoption being delayed indefinitely. There was a risk of the system being abused. The appellant had not provided any explanation as to why he had not pursued his action for declarator of paternity of G.J., despite having been given the opportunity to do so.

The question which we require to consider is whether the Sheriff's decision to decline to adjourn the hearing on 29 April 1998 was an unreasonable exercise of his discretion. That question requires to be considered against the background of not only the interests of the appellant but also the responsibility of the court in dealing with an application under section 18 of the 1978 Act. As we have already noted, on 11 December 1997 the Sheriff appointed notice of the hearing to be intimated to the appellant. It is perhaps of some significance to note that this was stated to be in terms of form 11 of the Act of Sederunt (Adoption of Children) 1984. In fact that Act of Sederunt had by then been superseded by the Child Care and Maintenance Rules 1997. However, in the case of an application for the freeing of a child for adoption, such a form was appropriate in the case of a person "whose agreement or consent to the making of the order freeing the child for adoption is required to be given or dispensed with" (para. 8(2) of the Act of Sederunt). This was consistent with the Sheriff proceeding on 29 April 1998 to dispense with the consent of the appellant on the grounds set out in section 16(2)(b) and (c) of the 1978 Act. In that connection we note, as was pointed out by Mr. Kelly, that in the child care reviews the appellant has been treated throughout as the father of G.J. Further, the fact that his mother entered into the parental rights agreement provided substantial support for the displacement of the presumption that D.J. was his father. In the circumstances adherence to the presumption without regard to the whole circumstances appears to us to be unrealistic. The terms of section 18(7) of the 1978 Act appear to us to be of some significance. They provide:

That subsection implies that, if a person who claims to be the father of the child has acquired parental responsibilities and parental rights, as he could do by means of an agreement under section 4(1) of the 1995 Act, this is a matter of significance in regard to the way in which the court proceeds in regarding the paramount consideration to which section 6(1) refers. We should add that it is well-recognised that in deciding whether a reasonable parent would have withheld consent the court requires to have in mind the interests or claims of the child, the natural parents and, in the case of an adoption petition, the adopting family (A. v. B. and C. 1971 S.C. (H.L.) 129, per Lord Reid at page 141).

In these circumstances we do not agree with the view expressed by the Sheriff Principal that the appellant had no locus to appear. The same cannot be said of the Sheriff since he proceeded on the footing that the appellant was a person whose consent required to be dispensed with. However, he acted in a way which not only deprived the appellant of the opportunity to be heard but also deprived the court of any pertinent information which he was able to provide in regard to what was in the best interests of the child. There may be circumstances in which a person has so conducted himself that it is not reasonable to expect the court to adjourn the hearing so that he can be heard, but the circumstances in the present case appear to us to fall far short of that situation. We appreciate that on 23 March 1998 the Sheriff emphasised to the appellant that it was important that the decision in regard to the future of G.J. should be made sooner rather than later. However, it does not appear that considerations of urgency led to the Sheriff reaching the decision which he did on 29 April 1998. In the circumstances we consider that for the Sheriff to decline to adjourn the hearing was not a reasonable exercise of his discretion.

Mr. Ross sought to persuade us that, in the event we came to that conclusion, we should decline to remit the case to the Sheriff. He sought to support that submission not only by means of his argument in regard to the appellant's entitlement to be heard, but also by reference to the information contained in the child care reviews as to the circumstances of G.J. and the past attitude of the appellant. We are not persuaded that this is an appropriate way in which to resolve the present case. The fact that the decision of the Sheriff has been vitiated by a procedural failure on his part does not justify this court in taking the decision on the merits of the respondents' application into its own hands. Without going into the information contained in the reviews in any detail, we can see that there are points which can be made for and against the appellant and any views which he expresses in regard to what is in the best interests of G.J. However, these are matters which properly should be considered by the Sheriff when the appellant is given the opportunity to be heard before him.

Accordingly we allow the appeal, recall the interlocutors of the Sheriff dated 29 April 1998, and the Sheirff Principal dated 28 July 1998, and remit the cause to the Sheriff to proceed as accords.