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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition West Lothian Council v. M. Mcg, W.p., J.f.f.& Anor [2002] ScotCS 133 (10th May, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/133.html Cite as: [2002] ScotCS 130, 2002 SCLR 857, [2002] ScotCS 133, 2002 SCLR 733

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Petition West Lothian Council v. M. Mcg, W.p., J.f.f.& Anor [2002] ScotCS 133 (10th May, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hamilton Lord Reed	XA87/01 & XA97/01 OPINION OF THE LORD JUSTICE CLERK in APPEAL from the Sheriffdom of Lothian and Borders at Linlithgow in PETITION of WEST LOTHIAN COUNCIL Respondents; against M. McG, W. P. (AP) and J. F. F. Appellants: and THE SCOTTISH MINISTERS Minuters: _______

10 May 2002

Act: J.M. Scott; Simpson & Marwick W.S. (Petitioners and Respondents);

Alt: Macnair, Q.C.; Balfour & Manson (Second Respondent and Appellant);

Party (Third Respondent and Appellant)

Doherty, Q.C., Mure; Solicitor to the Scottish Ministers (Minuters)

 

Introduction

1. These are appeals against decisions of the sheriff at Linlithgow dated 24 March 2000 by which he made orders in terms of section 18(1) of the Adoption (Scotland) Act 1978 (the 1978 Act) declaring D W P and J-M F free for adoption; dispensing with the consent of M McG or P and W B P, the parents of D W P, to the making of any adoption order in respect of him; and dispensing with the consent of M McG or P and J F F, the parents of J-M F, to the making of any adoption order in respect of him.
2. The mother of these children is M McG or P, to whom I shall refer as Miss McG. D W P (D) was born on 22 February 1992. His father is W B P (Mr. P) with whom Miss McG cohabited but whom she did not marry. J-M F was born on 27 September 1997. His father is J F F (Mr. F) with whom Miss McG cohabited but whom she did not marry.
3. The respondents are the social work authority for West Lothian and are a statutory adoption agency. They raised the proceedings in the sheriff court. The respondents' social work department was closely involved in the care of D, and in due course J-M, from birth. I shall discuss the history later. In June 1999 the respondents applied for orders under section 18 of the 1978 Act declaring the children free for adoption and dispensing with the consent of the parents in each case on the grounds that the parents were withholding their agreement to adoption unreasonably and that they had failed without reasonable cause to fulfil their parental responsibilities under section 16(2)(c)(i) and (ii) of the 1978 Act.
4. The petition was opposed by the parents in each case. The sheriff held a conjoined proof in the petitions and granted the orders craved.
5. Miss McG appealed to this court against the sheriff's decisions, but abandoned her appeals shortly before the hearing. The fathers of the children appealed to this court and maintained their appeals. At the hearing of the appeals, Mr. P was represented by senior counsel. Mr. F appeared in person.
6. Since Mr. P's appeal raised a point as to the compatibility of the legislation with the European Convention on Human Rights (the Convention), the Scottish Ministers compeared as minuters and were represented by counsel. The Advocate General notified the court that she did not wish to be joined as a party to the proceedings.

The history

7. The following history is set out in the sheriff's findings in fact, which none of the parties has challenged, and in the agreed medical evidence.
8. Miss McG and Mr. P lived together from D's birth until spring 1996. D lived with them from birth until August 1995. During that time the family required considerable social work help. The social worker involved with the family frequently found on going to their home that the family were not awake and that the curtains were drawn. The house was sparsely furnished and poorly heated. D was often unsupervised while his parents slept. During this time Miss McG frequently appeared to be under the influence of drugs or alcohol. She smelled of drink, her pupils were dilated and her behaviour was bizarre. In April 1993 she dropped D and he was injured. As a result of that incident a place of safety order was made in respect of D and he spent a week in foster care.
9. In September 1994 Miss McG was admitted to a psychiatric ward after which D spent about six weeks in foster care.
10. During 1995 the situation deteriorated. The social worker received reports from neighbours that Miss McG and Mr. P were arguing in the street and dragging D behind them. D missed several attendances at the Children's Centre in June-July 1995. On occasions the social worker had difficulty in being admitted to the house. On or about 30 August 1995 she found Miss McG at home in an incoherent and agitated state. Miss McG agreed that she was unable to care for D and that he should be placed in foster care. Shortly afterwards, Miss McG was detained in hospital under the Mental Health (Scotland) Act 1984.
11. From then until October 1996 D was in foster care. When received into foster care he was withdrawn and was bed-wetting, soiling and smearing faeces. From April 1995 until June 1996 access by Miss McG and Mr. P was infrequent. They missed many possible visits. During this period D settled well with his foster carers.
12. On 12 March 1996 the respondents' adoption panel recommended that D should be freed for adoption.
13. In the early part of 1996 Miss McG began to bring Mr. F with her on access visits, introducing him as a family friend. Around April 1996 D was admitted to hospital for an operation. Miss McG, Mr. P and Mr. F attended at the ward. D was upset by Miss McG's behaviour. She was drunk and noisy. By June 1996 Miss McG had separated from Mr. P and was living with Mr. F.
14. After about June 1996 Miss McG ceased to be dependent on drink and drugs. She co-operated with the social work department regarding D's care. She maintained access visits and the quality of her contact with D was good. Such was the improvement that in October 1996 D was returned to Miss McG's care. Thereafter D had a good relationship with Miss McG and Mr. F. He saw Mr. P regularly. On 9 October 1997 D's supervision order was terminated. Shortly before the supervision order was terminated, J-M was born.
15. Matters deteriorated in about December 1997. The social work department received reports of disturbances at Miss McG's home. In one such incident on 11 December 1997 Mr. F assaulted Miss McG and she removed the children from the house. In the early part of 1998 there were further reports of disturbances involving police intervention. On 11 February 1998 there was a drunken disturbance involving Mr. F and Miss McG which resulted in his putting her and the children out of the house after midnight.
16. As a result of that incident, the respondents obtained a child protection order in respect of both children. The respondents then placed them with foster carers called Mr. and Mrs. J. Thereafter Miss McG and Mr. F failed to exercise access satisfactorily. Arrangements for D to stay with them at weekends were unsuccessful. On his return he was soiled, wearing dirty clothing and appeared to be hungry. In June 1998 weekend access by Miss McG and Mr F was brought to an end.
17. In 1999 Mr. P and Mr. F each entered into a minute of agreement with Miss McG in terms of section 4 of the Children (Scotland) Act 1995 (the 1995 Act). These minutes were registered in the Books of Council and Session on 4 May and 9 July 1999 respectively.
18. After June 1998 access by Miss McG and Mr. F was irregular and not particularly successful. D lost interest in contact with his mother and said that he no longer wished to have contact with her. J-M recognises Miss McG and Mr. F but has no understanding that they are his parents. He enjoys their visits, as the sheriff puts it, "in a way in which a child would enjoy the visit of a relative or an adult with whom he is familiar."
19. Mr. P suffers from mental illness. From September 1994, he was unable to care for D unassisted. When Miss McG was in hospital he was unable to look after D. The medical evidence is to the effect that in 1993 Mr P was diagnosed as suffering from a paranoid psychosis; that thereafter it became more apparent that he was suffering from a psychotic illness; that in 1999 he was admitted to hospital for a time under the Mental Health (Scotland) Act 1984; that by late 1999 he was diagnosed as suffering from a schizophrenic illness; and that at that time it was the opinion of his consultant that he was not able to provide care for D and that his condition would not improve sufficiently to enable him to do so in the future.
20. D sees Mr. P regularly. He has expressed a wish to remain in contact with him. He has an understanding that he cannot live with his father and that his father is not capable of caring for him. He has expressed a wish to go and live with his father when he is older. He would be upset if contact with his father ceased.
21. Both children are settled and happy with Mr. and Mrs. J. D wishes to remain with them and does not wish to return to his mother. J-M would be confused if he had to leave Mr and Mrs J and live with his mother or his father.

The future for the children

22. It appears from the sheriff's findings in fact that if the children are freed for adoption it is virtually certain that they will be adopted by Mr. and Mrs. J with the encouragement and support of the respondents. In that event, it is likely that Mr. and Mrs. J will continue to allow D to have contact with Mr. P and will encourage him to do so. This is likely to be their attitude whether or not there is a court order providing for contact.
23. If J-M is adopted by Mr. and Mrs. J it is probable, but not certain, that contact with Miss McG and Mr. F will cease. It is likely that Mr. and Mrs. J will acquaint J-M with his origins and the identity of his birth parents. It is also likely that they will permit contact with the birth parents, if that is J-M's wish, when he is older.

The sheriff's decision

24. The sheriff found in fact and in law in relation to D that Miss McG was withholding her consent unreasonably to the making of an adoption order; that Mr. P was likewise withholding his consent unreasonably; that Miss McG had persistently failed without reasonable cause to fulfil her parental responsibilities to safeguard and promote the health, development and welfare of D; that Mr. P had failed in the same respects; that Miss McG had persistently failed without reasonable cause to fulfil her parental responsibilities to maintain personal relations and direct contact with D on a regular basis; that the consent of Miss McG to the adoption of D should be dispensed with; that the consent of Mr. P should likewise be dispensed with; that adoption of D would safeguard and promote his welfare throughout his life; and that it was better for D that an order be made freeing him for adoption than that no such order be made.
25. The sheriff made the same findings in fact and law, mutatis mutandis, in respect of J-M; but in addition he found that Mr F had persistently failed without reasonable cause to fulfil his parental responsibilities to maintain personal relations and direct contact with J-M on a regular basis.

The nature and effects of adoption

26. Section 12 of Adoption (Scotland) Act 1978 defines the nature and effects of an adoption order as follows:

"12.-(1) An adoption order is an order vesting the parental responsibilities and parental rights in relation to a child in the adopters, made on their application by an authorised court; ...

(2) The order does not affect the parental responsibilities and parental rights so far as they relate to any period before the making of the order.

(3) Subject to subsection (3A) the making of an adoption order operates to extinguish -

(a) any parental responsibility or parental rights relating to the child which

immediately before the making of the order was vested in a person (not being one of the adopters) who was -

(i) a parent of the child, ...

... (6) An adoption order may contain such terms and conditions as the court thinks fit ... "

Section 39 provides that where a child is adopted by a married couple, as is the local authority's plan in this case, the child shall be treated in law as if -

1. he had been born as a legitimate child of the marriage (whether or not he was in fact born after the marriage was constituted); and
2. ... he were not the child of any person other than the adopters."
27. The making of an adoption order therefore results in the complete and irrevocable extinction of the legal relationship between the natural parent and the child and the creation of a new legal relationship between the adopters and the child.
28. Section 6 of the Act, so far as is relevant to this case, provides that the decision on a petition for adoption is governed by the following criterion:

"6.-(1) Without prejudice to sections 12(8) and 18(8), in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but -

(a) shall regard the need to safeguard and promote the welfare of the child

concerned throughout his life as the paramount consideration;

2. shall have regard so far as practicable -

(i) to his views (if he wishes to express them) taking account of his age and maturity; ...

2. Without prejudice to the generality of paragraph (b) of subsection (1), a child of twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes of that paragraph ... "
29. This is reinforced by section 24(3), which provides as follows:

"In considering whether to make an adoption order or an order under section 18(1) (sc a freeing order), the court shall regard the welfare of the child concerned as its paramount consideration and shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not."

30. Section 16 entitles the court to dispense with the requirement of parental agreement in inter alia the following circumstances.

"16-(1) An adoption order shall not be made unless -

(a) the child is free for adoption by virtue of an order made

(i) in Scotland under section 18; ...

and not revoked; or

(b) in the case of each parent or guardian of the child the court is satisfied

that - ...

(ii) his agreement to the making of the adoption order should be

dispensed with on a ground specified in subsection (2)

(2) The grounds mentioned in subsection (1)(b)(ii) are, that the parent or guardian- ...

(b) is withholding agreement unreasonably;

(c) has persistently failed, without reasonable cause, to fulfil one or other

of the following parental responsibilities in relation to the child -

(i) the responsibility to safeguard and promote the child's health,

development and welfare; or

(ii) if the child is not living with him, the responsibility to maintain personal relations and direct contact with the child on a regular basis; ..."

Freeing Orders

31. To prepare the way for adoption the court is empowered to make an order freeing the child for adoption. Section 18 of the 1978 Act provides that the court may make such an order in the following circumstances:

"18.-(1) Where, on an application by an adoption agency which is a local authority, an authorised court is satisfied in the case of each parent or guardian of the child that - ...

(b) his agreement to the making of an adoption order should be dispensed

with on a ground specified in section 16(2),

the court shall ... make an order declaring the child free for adoption. ...

(3) No agreement required under subsection (1)(a) shall be dispensed with under subsection (1)(b) unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption ... "

32. The grounds on which a parent's consent to a freeing order can be dispensed with are therefore those that would apply in the case of an adoption petition.

"Parent" is defined in section 65(1) of the 1978 Act (as amended by the Children (Scotland) Act 1995, s.98(1)) as follows:

"'parent' means, irrespective of whether they are, or have been, married to each other -

1. the mother of the child, where she has parental responsibilities or parental rights in relation to him;
2. the father of the child where he has such responsibilities or rights; and
3. both of his parents, where both have such responsibilities or rights."

'parental responsibilities' and 'parental rights' have the meanings respectively given by sections 1(3) and 2(4) of the Children (Scotland) Act 1995 ... "

I shall refer to parental responsibilities and rights later.

33. The effect of a freeing order is almost as drastic as that of an adoption order itself. The freeing order removes from the parents their parental responsibilities and rights and transfers them to the local authority pending adoption.
34. One particularly profound result affects the question of continued contact with the child, which is a central issue in these appeals. It seems clear, in my view, that the court has no power to make a freeing order conditional on the birth parent's having a continued right of contact with the child. The court has the power to attach conditions to an adoption order (1978 Act, s. 12(6), supra), although that power is rarely exercised (cf. B. v C.;1996 SLT 1370; FB and AB, Petrs.,1999 Fam LR 2, at para. 2-21). The court has no corresponding power in relation to a freeing order. That, I think, is logical. It would be inappropriate for the eventual adopters to be bound by a condition that they had had no opportunity to contest.
35. A further result of a freeing order is that the parent is thereafter permanently deprived of the right to apply to the court for an order for contact with the child (1995 Act, s. 11(3)(a)(iii); s. 11(4)(b)).

Parental responsibilities and rights

36. In terms of section 1(3) of the Children (Scotland) Act 1995, read with section 1(1), parental responsibilities are defined as follows:

"(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the

child -

(i) direction;

1. guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations

and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child."

37. "Parental rights" are the rights necessary to enable the parent to discharge the parental responsibilities that I have quoted. These rights are set out in section 2(1). They include the right to contact with the child on a regular basis in a case where the child is not living with the parent (s. 2(1)(c)).
38. Subject to an exception that is not relevant in these cases, the natural father has no parental responsibilities or rights in relation to the child unless he was married to the mother at the time of the child's conception or subsequently (s. 3(1)(b)). Section 4 of the 1995 Act provides a means by which the natural father may acquire such responsibilities and rights, namely by a statutory agreement with the mother. Section 4(1) provides inter alia as follows:

"Where a child's mother has not been deprived of some or all of the parental responsibilities and parental rights in relation to him and, by virtue of subsection (1)(b) of section 3 of this Act, his father has no parental responsibilities or parental rights in relation to him, the father and mother, whatever age they may be, may by agreement provide that, as from the appropriate date, the father shall have the parental responsibilities and rights which (in the absence of any order under section 11 of this Act affecting those responsibilities and rights) he would have if married to the mother."

This is the form of agreement that Mr P and Mr F entered into with Miss McG in these cases.

39. Section 4(2) provides that no agreement of this kind shall have effect unless it is in prescribed form and is registered in the Books of Council and Session while the mother still has the parental responsibilities and parental rights which she had when the agreement was made. Section 4(3) provides that the "appropriate date", from which the father's responsibilities and rights begin to run, is the date on which the agreement is registered.
40. Section 3(1)(b) is of particular relevance to one of the questions in this case. It provides as follows:

"3.-(1) Notwithstanding section 1(1) of the Law Reform (Parent and Child)(Scotland) Act 1986 ... -

(b) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4 of this Act, his father has such responsibilities and rights in relation to him only if married to the mother at the time of the child's conception or subsequently."

This confirms that neither Mr P nor Mr F had any parental responsibilities or rights before the date of registration of the section 4 agreement.

The questions raised in these appeals

41. These appeals raise the following issues: (1) whether the sheriff erred in holding in fact and law in each case that the father of the child had failed to fulfil his parental responsibilities to safeguard and promote the health, safety and welfare of the child; (2) whether the sheriff erred in holding in fact and law in each case that the father of the child had unreasonably withheld his consent to the making of an adoption order; (3) whether the sheriff erred in the exercise of his discretion in dispensing with the father's consent; (4) whether the sheriff should have refused to dispense with consent on the ground that to do so would be contrary to the father's right under article 8 of the Convention; and (5) whether, if the court were to find that adoption was the only course open to it in the circumstances, the failure of the legislature to provide the father with a right of contact would be incompatible with the appellants' Convention rights.

Decision

1. Failure to fulfil parental responsibilities
2. Counsel for Mr P submitted that under section 16(2)(c)(i) and (ii) of the 1978 Act Mr P cannot be held to have failed to fulfil the parental responsibilities therein referred to at any time before he acquired those responsibilities under section 4 of the 1995 Act, that is to say before the date of the recording of the minute of agreement in the Books of Council and Session. The same argument applies in Mr F's case.
3. The sheriff concluded that the responsibilities referred to in section 16 must be wider than those imposed on married fathers by section 3(1)(b) of the 1995 Act or imposed by a section 11 order or acquired by a section 4 agreement. He held that an unmarried father should not be able to escape them until the eleventh hour and then acquire his statutory responsibilities in circumstances where the court could not examine his previous conduct towards, or lack of contact with, the child. He therefore concluded that if the consent of a father is required, it is to his fulfilment throughout the life of the child of the responsibilities described in section 16(2)(c) that the court should look, regardless of the date of the agreement. That is the basis on which the sheriff treated any evidence about Mr. P and D or about Mr. F and J-M that related to the period before the registration of the relevant minute of agreement. Counsel for the respondents supported the sheriff's reasoning on this point.
4. In my opinion, the sheriff's reasoning is erroneous. In each of these cases, the appellant had no parental responsibilities in law before the date on which the section 4 agreement became legally effective (cf. 1995 Act, s. 3(1)(b), supra). In my opinion, the father of a child cannot be said to have failed in the discharge of parental responsibilities towards the child if at the material time he had no such responsibilities. That point was conceded in City of Glasgow v M. (1999 SLT 989, at pp. 990L; 991D-E). In my view, that concession was correctly made. The father's conduct towards the child in the period before the acquisition of parental rights may of course be a material factor in the question whether the father's consent is being unreasonably withheld, but that is another matter.
5. This result seemed anomalous to the sheriff; but the question is a simple one of statutory interpretation. In my opinion, the point is made clear by section 3(1)(b) of the 1995 Act, which I have quoted.
6. The sheriff's basic error on this question can be seen in his view that the parental responsibilities referred to in section 16(2)(c) of the 1978 are wider than those imposed on married fathers by section 3(1)(b) of the 1995 Act or by a parental rights order under section 11 or by a parental rights agreement under section 4. It is apparent on a reading of the 1995 and 1978 Acts that the concept of "parental responsibilities" is one that applies uniformly throughout those sections which refer to it.
7. On the view that I have taken on this point, there would remain the question whether the findings in fact supported the conclusion that either appellant failed in terms of section 16(2)(c) during the period between the registration of the agreement and the proof. However, by concession of counsel for the respondents neither appellant could be held to have failed in terms of section 16(2)(c) during that period.
8. We are therefore not required to decide the question whether Mr P's mental illness throughout that period would have amounted to reasonable cause (cf. s. 16(2)(c), supra) for any failures on his part in the discharge of the parental responsibilities to which section 16 refers. In this case the sheriff held that mental illness is not a reasonable cause for a failure to fulfil the parental responsibilities to safeguard and promote the child's health, development and welfare. Counsel for Mr P said at first that he accepted that that view was correct, but he later withdrew that concession. In reaching his view on this point, the sheriff relied on the decision of Lord Penrose in Angus Council v C (2000 SLT 761). In that case, however, the mother of the child against whom a freeing order was sought was found not to be insane and to be ex hypothesi responsible for her conduct. Lord Penrose said that her conduct was undoubtedly mitigated, in terms of moral guilt, by her personality disorder; but that the disorder could not be relied on as a reasonable cause for her conduct, viewed objectively (at p. 762K-L). In the present case Mr P's mental condition at the relevant time appears to have been considerably more serious. I expressly reserve my opinion on the general principle that the sheriff has stated and on the particular question whether Mr P's mental illness could have constituted reasonable cause for the purposes of section 16.
9. I conclude therefore that the sheriff erred in both cases in finding that the appellant had been guilty of a breach of section 16(2)(c) of the 1978 Act.
10. Whether consent unreasonably withheld
11. The primary argument of counsel for Mr P is that since the consent to which section 18 of the 1978 Act refers is a consent to the extinction of the parent's rights and responsibilities, the reasonable parent would have in mind the limited opportunities that adoption permits for the involvement of the natural parent in the life of the child after adoption. If the parent were to withhold consent on that account, he could not be said to be withholding it unreasonably. If it was in the interests of the child to retain contact with his father, adoption would not be an appropriate course. A fortiori, it would not be appropriate to make a freeing order which could not include a condition about contact and which would deprive the parent of the right even to be notified of the ensuing adoption petition.
12. Counsel for Mr P further argued that the sheriff had failed to take into account the loss of the parental right of contact, and the right to have contact regulated should that prove necessary, which adoption would entail. He had also failed to have regard to the views of D set out in the findings in fact.
13. Mr F made the straightforward submission that the effect of the freeing order would be that he would lose his legal right to contact with his child; that he wished to maintain a parental relationship with his child; that he was not prepared to depend on the prospective adopters for access to him; and that he opposed the freeing order on those grounds. This was in essence the primary submission for Mr P. Mr F also supported the other submissions of counsel for Mr P to the extent that they were common to both cases.
14. In my view, the submission of counsel for Mr P on this point is unsound. The reasonableness of a decision by the birth parent to withhold consent is to be judged objectively by the standard of a hypothetical parent who has in mind the paramount consideration set out in section 6 of the 1978 Act (cf. In re F [2002] 2 FLR 505, at p. 509; In re C (a minor)(Adoption) [1993] 2 FLR 260, at p. 272). In my view, the section assumes that the parent whose consent to the adoption is sought will in making his decision recognise that adoption extinguishes all parental rights of the birth parent leaving it in the hands of the adopters to decide to what extent, if any, the birth parent will have a part in the life of the child. It is an accepted fact of adoption that the natural parent will have at best limited opportunities for contact with the child (D v Grampian RC, 1995 SC (HL) 1, Lord Jauncey at pp. 5H-6A; FB and AB, Petrs., supra). That was a factor that the sheriff had to take into account; but of itself it was not, and could not be, a conclusive factor.
15. The second argument for Mr P is that a reasonable parent would have regard to the loss of the parental right of contact that adoption involves. In this case D wishes to retain contact with his father and would be upset if contact were to cease. The sheriff recognised that contact is beneficial to the child. Counsel argued that the sheriff should have taken account of the fact that contact is beneficial not only for the father but for the child. In such circumstances a reasonable parent would not be content to leave the question of contact to the prospective adopters as the sole arbiters of the welfare of the child. This is simply a development of the first argument and I reject it for the same reasons.
16. It is a matter of agreement that contact between Mr P and D is in D's interests, and that if the freeing order is granted, Mr P will lose his right to contact with D. That fact alone does not however make the freeing order inappropriate. The sheriff recognised that freeing would have that result for all three appellants; but he did not regard it as conclusive because, having seen and heard Mr and Mrs J, he was satisfied that they would ensure that contact between D and Mr P was maintained (findings in fact 20-21). As I read the sheriff's reasoning, he considered that the reasonable parent in such circumstances would consent to the order on the basis that Mr and Mrs J would almost certainly adopt D and fulfil their stated intentions. In such circumstances he considered that, for the protection of Mr P's right of contact, there was no need to deprive D of the benefits of a settled family life with Mr and Mrs J.
17. In my view, the sheriff correctly identified that the test under section 16(2)(b) is an objective test based on the standard of the reasonable parent (cf. Lothian RC v A., 1992 SLT 858, at p. 862; D. v F., 1994 SCLR 417, at p. 423). He canvassed a number of factors that a reasonable parent would take into account in deciding whether to give or withhold consent; for example, the past history of the child care shown by the parent, the present circumstances of the child, the likely future care of the child, the character of the prospective adopters, the views of the child, and so on. He concluded that, on an objective judgment, D's welfare would be better served by his remaining with Mr and Mrs J. He was particularly influenced by the likelihood that Mr and Mrs J would adopt D, and by D's wish to remain with them. In relation to both Miss McG and Mr P he concluded that the withholding of consent was unreasonable by the standard to which I have referred.
18. Mr F's case under section 16(2)(b) was weaker than Mr P's. J-M had been with Mr and Mrs J since he was 5 months old and did not recognise Mr F as his father. In contrast with D's case, there was no finding that J-M had any emotional need to maintain contact with Mr F. Instead there was a finding that he was happy and well-settled with Mr and Mrs J (finding in fact 18). The past history of Mr F's conduct in relation to J-M (eg findings in fact 11, 12, 15) was not impressive. These were clearly factors that the reasonable parent would take into account.
19. This question was pre-eminently one for the decision of the sheriff on the facts. In my opinion, the sheriff was entitled on the facts that he found to hold that the appellants were unreasonably withholding their consents.
20. The exercise of the sheriff's judgment.
21. This was the second stage of the reasoning process that the sheriff had to follow, having made findings on the questions raised under section 16(2). At this stage the sheriff had to make a judgment on all the relevant circumstances having in view the paramount consideration of the long-term welfare of the child (cf. Osborne v Matthan (No 2), 1998 SC 682).
22. Counsel for Mr P submitted that the sheriff had erred in holding that the adoption of D would safeguard and promote his welfare throughout his life and that it would be better that the order should be made than that no such order should be made. The sheriff had failed to deal with parent and child separately. By holding that a parental right of contact was against the spirit of adoption, he inverted the proper test. If it were in the interests of the child that the father should retain rights of contact, then since adoption would extinguish such rights, the freeing order should have been refused. Moreover, the sheriff failed to have regard to the views of the child as set out in his findings in fact. He made no finding in regard to the age and maturity of the child (cf. 1978 Act, s. 6, supra). However, he did take account of the child's views when dealing with the position of the mother.
23. In my view, these submissions are unsound. The sheriff had to make a judgment; but his judgment had to have a proper foundation in his findings in fact. The findings in fact are undisputed. In my opinion, they provided ample warrant for the sheriff's findings in fact and in law.
24. In deciding whether to allow the orders sought, the sheriff took into account, as he was entitled to do, the factors that he had taken into account at the first stage at which he decided whether consent was being unreasonably withheld (Lothian RC v A., 1992 SLT 858, Lord President Hope at pp. 862D-L; 863B-C). In D's case, he appears to have taken into account his findings as to D's wishes and as to the impact of adoption on parental rights of contact. He also gave weight to the consideration that it was almost inevitable that the children would be adopted by Mr and Mrs J and that it was likely that there would be continued contact between D and Mr P. At this stage, he had in view the paramount consideration to which I have referred. The sheriff then reviewed the alternatives and concluded that in both cases none of them was as satisfactory a solution to the problem as that of adoption.
25. Looking at the decision overall, I think that the sheriff was influenced mainly by the consideration that the proposed arrangements would bring into the lives of both boys a degree of permanence and security that they had not before experienced and that other options such as long-term fostering could not achieve (cf. Re SMH and RAH, [1990] FCR 996, Bridge LJ at pp. 998-999).
26. It is unfortunate that Miss McG and Mr P did not give evidence, which no doubt put the respondents' witnesses at a certain advantage. The sheriff was impressed by Mr and Mrs J; but it is apparent that in his overall conclusions he accepted in its entirety the line that was being taken by the respondents' social work witnesses. That was a matter for his judgment. It is not for us to substitute our judgment for his.
27. We can interfere with the decision only if the sheriff has misdirected himself or has made a manifest error (cf. L v Central RC, 1990 SLT 818; Re B, [2002] 1 WLR 258, Lord Nicholls of Birkenhead at paras. 16-17). In my view, there is no basis on which we could do so in this case.
28. Convention rights
29. Counsel for Mr P argued that the sheriff should have exercised his discretion whether or not to dispense with Mr P's consent in a way that was compatible with the right to family life under article 8 of the Convention. The loss of the right to contact and of the right to seek an order for contact from the court was in conflict with the rights of both Mr P and D.
30. In my view, the sheriff is not to be faulted for having failed to advert to the appellants' Convention rights. The sheriff's decision predated the coming into force of the Human Rights Act 1998. He was not obliged to give effect to the Convention rights of the appellants and of the children (R v Lambert, [2001] 3 WLR 206; R v Kansal (No 2), [2001] 3 WLR 1562; R v Benjafield [2002] 2 WLR 235). But it was open to the sheriff to take the Convention rights of the appellants and the children into account as a factor at the second stage of the decision-making process (Rantzen v Mirror Group Newspapers, [1994] QB 670). The appellants were legally represented at the hearing, but the Convention rights point was never put to the sheriff. In my view, it cannot be raised now. In any event, it does not appear that if the question of Convention rights had been raised with the sheriff, he would have reached a different decision on the evidence before him (cf. Re B. [2002] 1WLR 258, at paras. 30-31).
31. Declaration of incompatibility
42. It is conceded by counsel for Mr P that the sheriff's decision was not one to which the retrospectivity provisions of section 22(4) of the Act apply. It is therefore common ground that this question would arise only if the court were to decide that the sheriff erred in his reasoning but, having considered the findings in fact de novo, were to be minded to refuse the appeals.
43. Counsel for Mr P submitted that in that event the court should hold that the failure of the legislature to allow for the provision of contact within the 1978 Act was incompatible with Mr P's Convention rights, and should make a declaration to that effect. Counsel cited no authority for this submission.
44. Counsel for the Scottish Ministers distinguished between the application of the statutory provisions in a way that overrides the appellants' Convention rights and the incompatibility of the provisions with the Convention (cf. In re K (A child) (Secure Accommodation: Right to Liberty), [2001] 2 WLR 1141, Butler-Sloss, P. at pp. 1154-1155; Re S., [2002] 2 WLR 720, Lord Nicholls of Birkenhead at paras. 56, 85-88). He submitted that, on the hypothesis that I have set out, the court would have reached its decision having balanced the appellants' Convention rights against other material considerations, and in particular those relating to the welfare of the children (cf. Re B., [2002] 1 WLR 258, Lord Nicholls of Birkenhead at para. 31). If the court were then to refuse the appeals, that might involve the application of the statutory provisions in a way that infringed the appellants' Convention rights; but it would not mean that the legislation itself was incompatible with the Convention. Counsel for Mr P did not reply to that submission.
45. On the view that I have taken on the merits of this appeal, the present question does not arise and I express no view on it.

An evidential question

46. On the view that I have taken, the question of our deciding these cases at our own hand does not arise. If we had been minded to take that course we would have had to decide the cases on the up-to-date circumstances (L v Central RC, supra, at p. 823). Counsel for the respondents submitted that in that event we should take into account two documents tendered by her, namely an updated report by the respondents' social work department and a statement signed by a social worker purporting to contain up-to-date information about D and his wishes for the future.
47. The first of these documents contains representations of fact prepared by the respondents' own social work officials. The second consists of double hearsay. It refers to statements allegedly made by D to Mrs J and reported by her to the social worker. I would not have been willing to decide these cases on such partial representations of the facts.
48. In my view, if we had been minded to decide the case ourselves on up-to-date facts, we would have required to make a wider enquiry. That would have involved our obtaining a further report from the curator ad litem and perhaps also the leading of further evidence.

The birth parents' prospects of contact

49. For the reasons that I have given, I consider that it is not competent to grant a freeing order subject to a condition as to the maintenance of contact between the child and the birth parent. If the freeing order has effect, the rights of the birth parents will be extinguished. They will have no right to appear in the adoption proceedings to be raised by Mr and Mrs J.
50. It is unusual for there to be a contact condition in an adoption order (B v C, supra). In the case of J-M, I think that there is little possibility that such a condition would be imposed. In the case of D, the position is less certain. Without such a condition, the appellants will be in the hands of Mr and Mrs J for any contact that they may obtain. Mr and Mrs J have not made any binding commitment on the matter. On the sheriff's findings they will be free at any time to change their minds on the question of there being any contact at all.
51. Counsel for the respondents suggested that the appellants had the reassurance that it would be competent for them to appear in any subsequent adoption proceedings. It is true that it is competent for birth parents who have suffered a freeing order to appear in adoption proceedings relating to the child (P. v Lothian RC, 1989 SLT 739, at p. 745K); but they may do so only where the sheriff orders service on them of notice of the hearing (A. and A. v G., 12 April 1994, unrepd., Inner House). The sheriff may ordain the petitioner in such proceedings to serve notice of the date of the hearing on any person who in his opinion ought to be served with notice of it (Child Care and Maintenance Rules 1997, r. 2.28(4)(d)). In view of the special circumstances of the relationship between Mr P and D to which I have referred, the sheriff in any such proceedings might well think it appropriate to order that notice be served on Mr P.
52. On the arguments that we heard, I am not impressed by the suggestion of counsel for the respondents that if the adopters failed to permit contact with the child, the divested parent could petition the court to require the adopters to provide an explanation and that, in that event, the court could make an order ex proprio motu in favour of the divested parent. That seems to me to be contrary to section 11 of the 1978 Act and to the theory that underlies it. In my view, the divested parent in such a case would have no title to sue. I am even less impressed by the suggestion of counsel for the respondents that in such circumstances the divested parent could apply to the nobile officium of the court for an order for contact. The nobile officium cannot be invoked to circumvent a clear statutory intention such as is set out in section 11.
53. Under English law, contact orders are granted in adoption proceedings only in exceptional circumstances (eg Re T (Adoption: Contact), supra). But in England a birth parent in the position of these appellants has at least the right to apply to the court under section 10 of the Children Act 1989 for leave to apply for an order under section 8. Such an order can regulate matters such as residence and contact. In contrast, while the Adoption (Scotland) Act 1978 entitles persons who have never had parental responsibilities or rights to apply for an order under section 11, it specifically excludes from that remedy the birth parents of the adopted child (ss. 11(3)(a)(iii), 11(4)(b)). These may well be examples of the kind of case in which the remedy given to the birth parent in English law would be appropriate in Scotland.

Conclusion

54. On the view that I have reached on these appeals, I propose that we amend the sheriff's findings in fact and in law numbers (4) and (13) by inserting after the word "has" the word "not." That will put right the point on which the sheriff misdirected himself. Quoad ultra I propose that we should refuse both appeals.
55. In the light of Miss McG's abandonment of her appeal, it falls to be refused simpliciter.

Petition West Lothian Council v. M. Mcg, W.p., J.f.f.& Anor [2002] ScotCS 133 (10th May, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hamilton Lord Reed	XA87/01 & XA97/01 OPINION OF LORD HAMILTON in APPEAL From the Sheriffdom of Lothian and Borders at Linlithgow in PETITION of WEST LOTHIAN COUNCIL Respondents; against M. McG., W.P. (A.P.) and J.F.F. Appellants; and THE SCOTTISH MINISTERS Minuters: _______

10 May 2002

Act: J.M. Scott; Simpson & Marwick, W.S. (Petitioners and Respondents)

Alt: MacNair, Q.C.; Balfour & Manson (Second Respondent and Appellant);

Party (Third Respondent and Appellant):

Doherty, Q.C., Mure; Solicitor to the Scottish Ministers (Minuters)

 

 

1. I concur in the disposal of these appeals proposed by your Lordship in the chair. In doing so I agree with the reasons which your Lordship gives for that disposal.
2. I have had the benefit of reading in draft the Opinion prepared by Lord Reed. There is, in my view, much force in the additional observations which his Lordship there makes. However, these observations affect policy issues as well, potentially, as legal issues in relation to the current statutory provisions for freeing orders in Scotland. While the discussion before us touched to some extent on these matters, we did not hear a full argument on them. In these circumstances I prefer to reserve my opinion on this aspect.

 

Petition West Lothian Council v. M. Mcg, W.p., J.f.f.& Anor [2002] ScotCS 133 (10th May, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hamilton Lord Reed	XA87/01 & XA97/01 OPINION OF LORD REED in APPEAL From the Sheriffdom of Lothian and Borders at Linlithgow in PETITION of WEST LOTHIAN COUNCIL Respondents; against M.M., W.P. and J.F.F. Appellants; and THE SCOTTISH MINISTERS Minuters: _______

10 May 2002

Act: J.M. Scott; Simpson & Marwick, W.S. (Petitioners and Respondents)

Alt: MacNair, Q.C.; Balfour & Manson (Second Respondent and Appellant):

Party (Third Respondent and Appellant):

Doherty, Q.C., Mure; Solicitor to the Scottish Ministers (Minuters)

 

 

1. I agree that these appeals must be refused for the reasons given by your Lordship in the chair. There are, however, some additional observations which I wish to make.
2. At the heart of the present case is the fact that a freeing order severs the legal relationship between a parent and his or her child. It cannot be made conditional on the parent's having a continued right of contact with the child. It has the effect of barring the parent from subsequently applying to the court for an order for contact with the child: Children (Scotland) Act 1995, section 11(3)(a)(iii) and (4)(b). In this regard the parent is placed under a disability which does not apply to any other person.
3. These consequences of a freeing order are plainly a matter of the greatest importance. It is difficult to imagine a more drastic intervention by the State in family life than the termination of the legal relationship between parent and child. It is a matter of special importance in circumstances such as those of the present case. This is not a case where the factual link between parent and child has already been irrevocably broken, and where the freeing order merely gives legal recognition to a situation which already exists de facto. On the contrary, D sees Mr P regularly. He knows that Mr P is his father. He refers to Mr P as "Dad number 1", and to Mr J as "Dad number 2". He wants to remain in contact with Mr P. He has expressed a wish to live with Mr P when he is older. He would be upset if contact with Mr P ceased. J M is a much younger child, and his ties with Mr F are less strong. Nevertheless, he has contact with Mr F. Looking at the matter from the perspective of the parents, it is clear that continued contact with their sons is also a matter of great importance to them both. In these circumstances, the termination of any legal right to have contact with their children, and the impossibility thereafter of their ever making any application to a court in relation to contact, is naturally a matter of concern to them, as it would be to any reasonable parent in such circumstances. It is no reflection upon Mr and Mrs J if the birth parents are not content that their continued contact with their children should be entirely dependent upon Mr and Mrs J's goodwill.
4. Adoption in which continued contact with one or both of the birth parents is expected to take place has become common in recent years. In Lowe and Murch, Supporting Adoption (1999), for example, the authors report that in 52 per cent of the adoptive families studied the child had ongoing contact with a birth parent. Although the value of "open adoption" in appropriate circumstances has been endorsed by this court (F B and A B, Petitioners, 1999 Fam. L.R. 2, para. 2-21), the issues arising from an adoption of that nature have received relatively little attention. This is in contrast to the position in England and Wales, where there is now a significant body of case-law concerned with the legal framework within which contact between an adopted child and his or her birth family can be preserved. The decision of the Court of Appeal in Re T (Adopted Children: Contact) [1995] 2 F.L.R 251 is of particular interest in the present context, despite - indeed, because of - certain differences in the legal framework.
5. Re T concerned a mother whose child lived with prospective adopters. The mother had continuing contact with the child, but recognised that the prospective adopters were the right family for the child to spend the rest of her childhood with. The adoption proceedings were contested solely to protect the mother's right to contact. The factual situation was thus similar to that in the present case.
6. The issue in Re T was whether, when making the adoption order, the court should also make an order for contact. The argument for the mother was that, in the absence of such an order, she had no remedy in the event that contact were to be stopped by the adopters. In rejecting that argument, the court founded on section 10 of the Children Act 1989, which confers on the court the power to make contact orders under section 8 of that Act. Section 10 provides inter alia as follows:

"(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if -

(a) an application for the order has been made by a person who-

(i) is entitled to apply for a section 8 order with respect to the

child; or

(ii) has obtained the leave of the court to make the application; or

(b) the court considers that the order should be made even though no such

application has been made.

(2) The court may also make a section 8 order with respect to any child on the application of a person who-

(a) is entitled to apply for a section 8 order with respect to the child; or

(b) has obtained the leave of the court to make the application."

Section 10 is the provision in English law which corresponds to section 11 of the 1995 Act; but unlike the Scottish provision, it does not impose an absolute bar on applications by the birth parents of adopted children, but merely requires them to obtain the leave of the court to make the application.

7. Giving the leading judgment, Butler-Sloss L.J. (as she then was) explained (at p. 256):

"If they do stop the contact for any reason in the future, it would be reasonable, it would seem to me, that they would give a clear indication to the natural mother as to why they do not think there should be contact either short-term or long-term. They should give their reasons clearly so the mother can study them. If they do not do that, or if the reasons turn out to be inadequate or wrong or unjust, the mother has the right to go to the court and ask for leave to claim the contact that she has had in the past.

She does have a remedy...It seems to me that the requirement of leave is a valuable protection, both for the adopters and for the child, and it is one that is very properly in place for that protection in the case of a former parent. If the adopters act unreasonably and that becomes clear to the court, then no doubt the mother would get an order which is appropriate for the time at which this matter comes before the court, bearing in mind the age of the child."

8. The judgments of the other members of the court were to similar effect. Sir Ralph Gibson in particular explained (at p. 258) that the absence of an order for contact at the time of adoption, coupled with the right of the birth parent in future to seek leave to apply for such an order, enabled an appropriate balance to be drawn in the best interests of the child:

"[A]n order should not be made requiring adoptive parents to permit contact with natural parents, on any terms, when the adoptive parents are willing to permit such contact as is in the best interests of the child, without any order, having regard to the circumstances which existed at the time of adoption. In amongst those circumstances in this case, of course, are the wishes of the child and the child's response to the contact, and the conduct towards the child of the natural mother. Those circumstances may change, but the proper response to any change in circumstances should be left to the decision of the adoptive parents and the discharge of their responsibility to the child.

If their decision should be demonstrably against the best interests of the child, then the natural parent can apply to the court for leave to seek an order for contact. Such procedural requirements as exist are imposed for the proper protection of the child and the adoptive parents against unnecessary disturbance."

9. This issue was considered again by the Court of Appeal in Re T (Adopted Children: Contact) [1996] Fam. 34. In that case, leave to make a contact application had been refused at first instance, after the adopters had failed to fulfil an undertaking which they had given at the time when the adoption orders were made.

Before the Court of Appeal, it was argued that the approach taken at first instance, by allowing adopters to resile from their undertakings without any inquiry into the matter, would have generally undesirable consequences. Balcombe L.J. quoted counsel's argument (at pp. 40-41):

"If the judge's approach and decision in this case is allowed to stand and receives the endorsement of this court, it demonstrates that adopters can resile from informal arrangements agreed without giving any reason and without the court being in a position to make any valid inquiry into the matter at all...it will make it very difficult for practitioners to give useful advice to members of a child's natural family involved in adoption proceedings. Very often the offer of indirect contact backed only by informal undertaking is sufficient to remove any objection to the adoption itself. If a party has to be advised that it would be open to an adoptive parent in those circumstances immediately to resile from their informal agreement and that a court is very unlikely to inquire into the matter, it will be probable that there will be more contested adoption proceedings and more section 8 applications pursued to final decision. That, it is submitted, is undesirable particularly since adoptions should be as consensual as possible."

Balcombe L.J. continued (at p. 41):

"It is not acceptable, and would lead to the undesirable consequences outlined by [counsel], if having agreed to some form of indirect contact, they could resile from that agreement without proffering any explanation. I am not saying that it should never be open to adopters to change their minds and resile from an informal agreement made at the time of the adoption. But if they do so they should, as Butler-Sloss L.J. said in re T. (A Minor)(Contact After Adoption)...give their reasons clearly so that the other party to the arrangement, and if necessary the court, may have the opportunity to consider the adequacy of those reasons. Nor need adopters fear that their reasons, when given, will be subjected to critical legal analysis. The judges who hear family cases are well aware of the stresses and strains to which adopters in the position of Mr. and Mrs. H are subject and a simple explanation of their reasons in non-legal terms would usually be all that is necessary. In my judgment where adopters in the position of Mr. and Mrs. H simply refuse to provide an explanation for their change of heart, especially where, as here, the contact envisaged - the provision of a report - is of a nature which is most unlikely to be disruptive of the children's lives, it is not appropriate for the court to accept that position without more."

The other members of the court delivered judgments to similar effect.

10. The problems (both factual and legal) consequential upon the impossibility under current Scots law of giving legal protection, at the stage of a freeing order, to parents in the situation of Mr. P and Mr. F appear to have been recognised in the past in Scotland. For example, the report Freeing Children for Adoption, submitted to Social Work Services Group in May 1989 and published by the Scottish Office, contained the following recommendation (at p. 53):

"3. The Adoption Act should be amended to allow terms and conditions (such as continued contact) to be included in a Freeing Order."

That recommendation had implications for the procedure for obtaining a freeing order which might be thought to be incompatible with the rationale underlying the introduction of such orders (explained in the Report of the Houghton Committee, published in 1972), and it has not been implemented. The issue of whether, and if so how, reasonable protection can be given to birth parents in circumstances such as those of the present case has not however disappeared. It raises policy issues as well as legal issues. The potential disadvantages of allowing the birth parent to embark upon litigation against the adopters as of right (i.e. without obtaining the leave of the court) have been acknowledged by this court (e.g. in F.B. and A.B., Petitioners, at para. 2-21) and are recognised in the English case law also. The English legislation is thus of interest in indicating another possible solution to this difficult problem.

11. It may be that the problem raised in the present case will become more acute in cases to which the Human Rights Act 1998 is applicable. That Act does not in my opinion have any application to the present case, for the reasons explained by your Lordship in the chair; and I would prefer to reserve my opinion on the implications of the Act for current adoption procedure and practice until those issues arise for decision. That said, it is I think reasonable to observe that the implication of the submissions made on behalf of the Scottish Ministers was that, if the making of a freeing order without any possibility of the birth parent's thereafter seeking to have contact regulated by the court were to be incompatible in particular circumstances with the birth parent's Convention right to respect for his or her private and family life, then the freeing order should not be made.
12. The argument for the Scottish Ministers presents courts with an "all or nothing" choice in dealing with an application for a freeing order in circumstances such as those of the present case. It is at least a matter for consideration whether a legislative framework which allows for greater flexibility may not better enable courts to promote the welfare of the child, as the 1978 Act requires, and also to strike a fair balance between the interests of the child and those of the parent (in particular, to impose proportionate restrictions on parental rights of access), as Article 8 requires.