Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 74

XA34/15

 

Lord Menzies

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRACADALE

in the Application

by

FIFE COUNCIL

 

For an Order in respect of the Child EC

 

 

 

Applicants and Respondents: Dowdalls QC, Louden; Balfour + Manson LLP

First respondent: Clarke; Drummond Miller LLP

Second Respondent and Appellant: J M Scott QC, Aitken; Thorley Stephenson SSC

 

29 October 2015

Introduction

[1]        The second respondent and appellant (F) is the natural father of child E who was born on 23 February 2012.  The first respondent (M) is the natural mother of the child.  The applicant and respondent is the local authority.

[2]        On 27 February 2015 in respect of E the sheriff made a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act).  The order included the mandatory provision set out in section 81, certain ancillary provisions in terms of section 82 and, in terms of section 80(2)(c), a provision granting authority for the child to be adopted.  This appeal is against both the making of the permanence order and the granting of authority for adoption.  Although the appeal was brought by F, M, in her answers and before us, contended that the Sheriff had also erred in his decisions in relation to her.

 

Statutory provisions

[3]        The statutory provisions under the 2007 Act relevant to this appeal are sections 14, 80, 83 and 84.  Section 80 provides for the making of a permanence order.  So far as relevant for present purposes it provides:

“(1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.
(2) A permanence order is an order consisting of—

(a) the mandatory provision,

(b)  such of the ancillary provisions as the court thinks fit, and

(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.”

 

[4]        So far as relevant for present purposes section 84 of the 2007 Act provides:

“(3) The court may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made.

(4) In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

(5) Before making a permanence order, the court must—

(a) after taking account of the child's age and maturity, so far as is reasonably practicable—

(i) give the child the opportunity to indicate whether the child wishes to express any views, and

(ii) if the child does so wish, give the child the opportunity to express them,

(b) have regard to—

(i) any such views the child may express,

(ii) the child's religious persuasion, racial origin and cultural and linguistic background, and

(iii) the likely effect on the child of the making of the order, and

(c) be satisfied that—

(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

(ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

(6) A child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of subsection (5)(a).”

 

[5]        An order granting authority for the child to be adopted may only be made if the conditions in section 83 are met.  So far as relevant for present purposes section 83 provides:

(1) The conditions referred to in section 80(2)(c) are—

(a) that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted,

(b) that the court is satisfied that the child has been, or is likely to be, placed for adoption,

(c) that, in the case of each parent or guardian of the child, the court is satisfied—

(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or

(ii) that the parent's or guardian's consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),

(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.

(2) Those grounds are—

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(c) that subsection (3) or (4) applies,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(3) This subsection applies if the parent or guardian—

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to—

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

…

(5) In subsections (1)(c) and (2), “parent”, in relation to the child in respect of whom the permanence order is to be made, means—

(a) a parent who has any parental responsibilities or parental rights in relation to the child, or

(b) a parent who, by virtue of a permanence order which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.”

 

[6]        Section 14 provides general considerations in relation to making decisions as to the adoption of a child.  So far as relevant for present purposes it provides:

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—

(a) the value of a stable family unit in the child's development,

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

(c) the child's religious persuasion, racial origin and cultural and linguistic background, and

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.”

 

Proceedings in the Sheriff Court

[7]        The proof before the Sheriff took place in August and September 2014. He had before him affidavits from twelve witnesses and heard oral evidence from nine of them.  On behalf of the local authority the evidence came from E's social worker AC and NH, a project worker with Includem, a charitable organisation that supported young people who had challenging chaotic behaviour. NH had been involved in providing support to M when M was 16 years old in relation to accommodation, education, training, employment and finances. E’s foster carer X gave evidence.  On behalf of M the sheriff heard evidence from M herself, her mother EC and M’s current partner Y.  On behalf of F the sheriff heard evidence from F, his partner CB, and F's father CM.  In addition, affidavits were available from the father of CB and two friends of F and CB.

[8]        The curator ad litem favoured the granting of the order as sought. The advice provided by the children’s hearing on 29 November 2013 recommended the move to permanence for E.

[9]        The sheriff noted that there were factual matters which were in dispute, particularly between the evidence of the social worker AC and the evidence of M and F.  He preferred the evidence of AC because it was supported by that of NH and documentary evidence from the social work files.  It was not suggested that he was not entitled to take that approach.

[10]      The factual history as it emerged in the evidence accepted by the sheriff was as follows.  Prior to E’s birth concerns were raised by a social worker working with one of M’s siblings about M and the unborn child. When E was born M was living with her own mother EC.  EC reported concerns to the social work department about M’s parenting of the child. Similar concerns were expressed by the midwife. By the time E was born M and F were no longer in a relationship. There were concerns about M’s partners. At the time of the birth her then partner had just been released from prison.

[11]      On 16 April 2012 at an initial child protection case conference a unanimous decision was made to place the child on the child protection register. She was assessed as being at risk of physical neglect and emotional abuse.  At that time M and the child should have been living with a third party Mrs F, but were not doing so.  Because of continuing concerns about M’s care of the child the sheriff granted a Child Protection Order on the application of the social work department.  The child was placed with a foster carer X with whom she has remained ever since.

[12]      In April 2012 M was advised that she needed to show a measure of stability in her life.  She formed a relationship with another man, R, which, although initially appearing to be positive, proved to be volatile and characterised by domestic violence.  R’s mother reported concerns about the excessive drinking of the couple and the fact that they were stealing money from her. This relationship continued until December 2012.

[13]      On 13 July 2012 grounds for a referral were established at the Sheriff Court.

[14]      For a period after E’s placement with X M had direct contact with her.  Contact was arranged three times a week but M was frequently late.  Initially, when M’s relationship with R commenced, she attended on time for contact with E and interacted well with the child.  At that time she was engaging with professionals and the social work department was giving serious consideration to attempting rehabilitation of the child with M.  Matters deteriorated and M’s engagement with the social work department and other support workers became almost non-existent.  She did not attend for contact with the child and did not tell anyone where she was living.  There were significant difficulties in her relationship with her new partner.  Although he was subject to a bail condition to have no contact with her, they were living together at his mother’s house.  M was suffering from mental health difficulties.  On ten occasions she failed to attend for contact.  The last contact between M and the child was in October 2012.  As a result, on 21 January 2013 the children’s hearing made a condition that there be no contact between M and the child.

[15]      In early 2013 M formed a relationship with a man who had previously been charged with lewd and libidinous behaviour towards a child.

[16]      In November 2013 the safeguarder recommended to the children’s hearing that the child should not have any direct contact with M or F.  This recommendation was accepted by the children’s hearing in November 2013.  F successfully appealed that decision and the matter was remitted to a children’s hearing on 29 May 2014.  At that hearing the children’s hearing decided that F should exercise only indirect contact with E.  An appeal against that decision was unsuccessful.

[17]      Since M’s last contact with E in October 2012 she had made a number of appointments with E’s social worker but failed to attend a large proportion of them. On the few occasions when she did meet the social worker she made no inquiry as to the child’s welfare. Subsequent children’s hearings had continued the condition that there be no contact between the child and M.

[18]      The child and the foster carer X have an extremely close relationship.  They have lived together since the child was about eight weeks old.  E had formed a close and loving bond with X.  She had also bonded with E’s children, aged 15 and 10 years, and considered them to be her brothers.  E became distressed if she thought she was going to be separated from X. X wished to care for E on a permanent basis.  X has been approved as a prospective adopter and has been matched with E.  X lives in a three-bedroom house with E and X’s two sons.  The house provided suitable accommodation for them.

[19]      Initially, M appeared to be in agreement that E should be adopted by X.  She spoke of being unable to care for the child and acknowledged the benefit of E staying with her carer. Before the sheriff, however, M contended that she was in a position to care for the child and that by the time of the proof her life was in a settled state.  In January 2014 M had advised the child’s social worker that she was in a settled relationship and engaged to be married.  By February 2014, however, the engagement had been broken and M had returned to live with her own mother.  The environment within the mother’s house was strained and the relationship between M and her mother remained volatile.

[20]      From the point at which contact between M and E had stopped M had never asked social workers for contact to be recommenced.  She did not act on the indirect contact allowed to her by the children’s hearing in November 2013.  M felt animosity towards social workers and described feeling hatred towards the social work department.

[21]      The relationship between M and F was not good.  M had previously evinced animosity towards F and had maintained opposition to any attempts he made to have contact with E.  She had been convicted of sending threatening text messages to him.  At the children’s hearing in November 2013 M had refused to sit in the same room as F.  At the proof, however, she said that if she were entrusted with the care of E she would allow F to have contact.

[22]      F had a record of committing criminal offences, including offences of violence; he had served custodial sentences.  He had not been able to maintain employment.

[23]      F had taken various steps through the courts in relation to the child.  On 17 December 2012 he obtained a declarator of parentage in respect of E.  In September 2013 a DNA test established his biological parentage.  On 29 May 2013 he was granted interim parental rights and responsibilities in relation to the child and on 19 May 2014 his action for declarator of full parental rights and responsibilities was granted by a sheriff.

[24]      F had failed to take advantage of the indirect contact allowed to him by the children’s hearing in November 2013.  Notwithstanding the orders granted by the sheriff F had had no current contact with the child and had not seen her since she was about eight weeks old.  He had no current relationship with her at the date of the proof.  He was in a new relationship.  He and his partner CB had a child of their own and his partner had a son as a result of a previous relationship.  F had not been formally assessed as a potential carer for the child.  F was resentful towards the social work department and accused social workers of frustrating his efforts to have contact with E.

[25]      Before the sheriff the position of M was that serious detriment would not result if the child were to live with her.  She argued that the court could not be satisfied that she was unable satisfactorily to discharge her parental responsibilities and exercise her parental rights or that it was likely that she would continue to be unable to do so.  She contended that she had not been given a proper chance to demonstrate that she could discharge those responsibilities and exercise those rights satisfactorily; she sought direct contact with E which should be increased gradually with a view to the child being returned to her care.  She argued that the court should not make a permanence order and should not dispense with her consent to adoption.

[26]      F’s position before the Sheriff was that evidence had not been presented which would support the conclusion that serious detriment to the welfare of the child would result if E were to reside with him.  He contended that while he had made enormous efforts to establish his entitlement to seek the care of the child, he had not been given the opportunity to discharge his parental responsibilities and exercise his parental rights.  He argued that he would be able to do so.  In addition, he argued that E’s welfare did not otherwise require his consent to adoption to be dispensed with.  He submitted that a permanence order should not be made and authority to adopt should not be granted.  He proposed that arrangements for direct contact between him and the child should be put in place.  Ultimately he would like E to come and live with him and his family.

[27]      Following the approach to the making of a permanence order discussed by the court in TW v Aberdeenshire Council 2013 SC 108 the sheriff began by considering whether the requirement of section 84(5)(c)(ii) was met.  The sheriff stressed the settled, happy, loving and enduring environment in which E lived with X and her family:

"…on the evidence I am completely satisfied that [removing E from X's care] would in fact cause her very substantial, lasting distress. I can hardly conceive of any course in relation to the care of this little girl that would cause more distress to her."

 

The sheriff noted that both M and F appeared to recognise this to a limited extent: neither of them proposed immediate removal of the child from X; rather, they suggested that there should be a gradual reintroduction of E to them before eventually she came to live with one or other of them, or both of them on a shared care basis.

[28]      Against that background the sheriff concluded that because of the very substantial lasting distress that removal of the child from X would cause the child, residence with either M or F or both of them would be seriously detrimental to E's welfare.  He was satisfied that an arrangement which provided the child with long-term security and stability would safeguard and promote her welfare throughout her childhood, which must be the court’s paramount consideration.

[29]      The sheriff went on to consider whether it was better for the child that the permanence order be made than not (section 84(3)).  He noted that child was subject to a compulsory supervision order imposed by the children's hearing.  He considered that such a regime did not provide long-term security and stability for a young child.  A permanent arrangement which safeguarded and promoted her welfare was better than the current arrangement.  Her welfare would be best safeguarded and promoted by making permanent the place she presently occupied in the happy and loving family unit provided by X.  This led him to the conclusion that it was better for the child that the order be made than that it was not made.  He concluded that the conditions of section 84 had been fully met and that grounds for making a permanence order had been established.

[30]      In deciding whether the conditions in section 83 were met the sheriff concluded that M was unable satisfactorily to discharge her responsibilities or exercise her rights and was likely to continue to be unable to do so.  M had in the past failed to promote and safeguard the health, development and welfare of the child.  She had failed to care satisfactorily for the child and meet her needs over the short period when E was living with her.  After E was taken into care M had failed to maintain contact with her or engage adequately with social work and other agencies in relation to the support offered to her.  E had not lived with M for a large proportion of the child’s life.  The sheriff recognised that M had been living with her mother for a year by the time of the proof which demonstrated that to some extent she had a more stable and less chaotic lifestyle than she had previously experienced.  He considered, however, that the evidence of her poor engagement with the social work department and the challenging and volatile relationship between M and her mother indicated that M would not be likely to engage with and accept the support that she would require in order to have the care of E or direct contact with her.  The sheriff was not persuaded that M's evidence that she could work together with F to provide care for E was credible.  The sheriff found that the requirements of subsection 83(3)(b) and (c) had been satisfied in relation to M and that accordingly her consent to the making of an adoption order should be dispensed with.

[31]      In assessing whether F was unable satisfactorily to discharge his responsibilities or exercise his rights and was likely to continue to be unable to do so, the sheriff recognised that in respect of the lack of contact between F and E since the child was only eight weeks old F had to a significant extent been a victim partly of circumstance and mainly of M’s animosity and intransigence towards him.  The sheriff noted, however, that F had not taken advantage of indirect contact made available to him by the children’s hearing. The sheriff did not accept that this failure was because a sensible, rational judgement had been made that indirect contact would not provide any real benefit to E; the sheriff was satisfied that F's failure to cooperate was motivated by his pique at not being allowed direct contact and his distrust and dislike of the social work department. The sheriff was particularly concerned about the attitude of F to the social work department.

[32]      The sheriff recognised that F had made some significant improvements in his lifestyle. The relationship with CB was a good and loving one. The family unit seemed to be happy and stable.  F had demonstrated his ability to look after other children in partnership with CB to an extent that gave the sheriff a reasonable expectation that F might be able to discharge parental responsibilities and exercise rights in respect of E at some point in the foreseeable future.  Accordingly, he found that while subsection 83(3)(b) had been satisfied in relation to F he was not satisfied that the requirement of subsection 83(3)(c) had been met. 

[33]      The sheriff went on to consider whether in terms of subsection 83(2)(d) the welfare of the child otherwise required the consent of F to be dispensed with.   He recognised that adoption of a child against her parents’ wishes should only be contemplated as “a last resort – when all else fails”. The interests of the child included being brought up by her natural family, ideally her natural parents or at least one of them.

[34]      At paragraph 48 of his Note the sheriff stated that because of the parents’ past failures to discharge the responsibilities or exercise their rights; because of the years which had passed since either of the parents had seen the child; because she had no relationship with them or memory of them; because she had such a strong and close bond to her foster carer and was so happy and settled in that family; because she had been in the care system for all but eight weeks of her three year old life and should not be kept in the care system for longer than necessary; and because she would benefit from being removed from that system and gaining the security and permanence that adoption would bring, he was satisfied that the “last resort” test was met.  He went on to state that he considered that the welfare of the child would not be safeguarded or promoted by returning her to the care of either natural parent or introducing her to either of them with a view to an ultimate return to the care of one or other or both of them.  On the contrary, he was satisfied that such steps would be likely to do positive harm to her welfare because of the uncertainty, instability and insecurity that such measures would be likely to engender in her.  In respect of M the sheriff concluded that she was unlikely to accept in any sustained and consistent manner the support that she would require from others to bring up E.  It was unlikely that she would maintain consistent contact with E.  Having regard to F’s unwillingness to grasp the opportunity in the interests of E’s welfare of the indirect contact permitted by the children’s hearing, and his unhappiness at his perception of his treatment by the social work department, the sheriff concluded that it was unlikely that he would co-operate with a gradual process possibly lasting several years.  The sheriff had no confidence whatsoever in the suggestion of shared care by M and F working to the benefit of E’s welfare.  He considered that there was no possibility of M and F avoiding serious animosity between them if they were required to communicate and co-operate with each other. 

[35]      The sheriff recognised that the word “requires” in section 83(2)(d) implied necessity.  Under reference to paragraph 48 of his Note he concluded that it was not merely desirable that authority to adopt be granted but that the best interests of E’s welfare dictated that such a decision be made.  The only family she knew was the one in which she presently resided. Unless the parents’ consent to the making of an adoption order was dispensed with the child would not have the security and sense of stability and belonging that all children should, if possible, enjoy.

[36]      In relation to contact the sheriff concluded that while it was in the best interests of the child that she should not have direct contact with M and F, it was in her best interests that she have indirect contact with both M and F in order to understand her life history and develop a sense of her heritage.  The sheriff rejected the submission that it would be harmful for the child to become aware in later life that she had been adopted.  It was not an uncommon circumstance for children to learn when they were older that they were adopted. Accordingly, the sheriff made an order for indirect contact.

[37]      The sheriff took account of the provisions of section 14 of the 2007 Act. A stable family unit was of significant value to the child's development generally and to her wellbeing in particular. The granting of authority to adopt would have a beneficial effect on the child throughout her whole life because of the security and permanence that adoption would bring.

[38]      The sheriff concluded that it would be better for the child that authority to adopt be granted rather than not granted.  He made a permanence order with authority to adopt and terminated the current compulsory supervision order made by the children’s hearing.

 

Grounds of appeal

[39]      F’s first ground of appeal attacks the making of the permanence order and focusses on the interpretation and application of section 84(5)(c)(ii) of the 2007 Act. In terms of that subsection before making a permanence order the sheriff required to be satisfied that residence with a person having the right mentioned in subsection 2(1)(a) the Children (Scotland) Act 1995 to have the child living with the person or otherwise to regulate the child's residence would be, or would be likely to be, seriously detrimental to the welfare of the child.  It was contended in the ground of appeal that the sheriff should have decided this point with reference to the appellant's capacity to look after the child.  He had failed to do so.

[40]      The second ground of appeal is that the sheriff erred in law in his interpretation and application of section 83(2)(d) of the 2007 Act in relation to the grant of authority to adopt in respect that:

(a) He dispensed with consent and granted authority for adoption without applying the high test of necessity and proportionality inherent in a proper interpretation of the subsection. He was not entitled to conclude on the facts of the case that no order less than adoption would suffice. He was not entitled to conclude on the facts of the case that adoption was necessary rather than merely desirable or reasonable.

(b) He failed to have regard to his duty as a public authority in terms of section 6 of the Human Rights Act 1998 to respect the family life of the appellant and the child in terms of article 8 of the European Convention on Human Rights.

 

Submissions

On behalf of F

[41]      In written and oral submissions it was contended on behalf of F that the sheriff had erred in his approach to the “welfare” test in sections 84(5)(c)(ii) and 83(2)(d) of the 2007 Act. Welfare could not be approached by deciding which was the “better bet” for the child. A considerable number of children might be better off being brought up by someone else but that was not the test and such an approach should be rejected as “social engineering”.  Welfare must be approached in a way which was consistent with article 8 ECHR: it was not enough that a child could be placed in a more beneficial environment for his upbringing (YC v United Kingdom [2012] 2 FLR 332).  The sheriff had approached the case as if he was determining a straightforward welfare test and reached a decision which failed to protect F’s right to respect for family life as protected by article 8. The principal ground on which the sheriff had founded to justify the severing of the child’s family life with her own family was the distress which would be occasioned to the child by the removal from an established foster family. While this was a factor to be taken into account it was insufficient taken in isolation, as the sheriff had done. The sheriff should have decided the question of serious detriment by taking account of the appellant’s capacity to look after the child. He had failed to give any consideration to that factor.  He did not examine what it was about the home of F that was going to cause serious detriment.  He did not explain why F could not look after the child. He was looking after two other children.  The sheriff was not entitled to hold that the test in section 84(5)(c)(ii) was met.

[42]      The sheriff had failed to have proper regard to the circumstances in which F had come to have no contact with, or form any part of, the life of the child.  Through no fault of his own F had been thwarted in his attempts to have contact and be involved in the life of the child.  The sheriff dispensed with the appellant’s consent to adoption without applying the high test of necessity and proportionality inherent in a proper interpretation of subsection 83(2)(d).  The analysis performed by the sheriff in support of his conclusion that authority to adopt met the “last resort” test was perfunctory.  It did not meet the stringency of reasoning required by In re B-S (Children) (Adoption Order: Leave to Oppose) 1 [2014] 1WLR 563.  A proper analysis of why adoption and nothing else was required was absent.  There should have been a detailed examination of the relevant facts.  He had failed to make any reference to S v L 2013 SC (UKSC) 20.  The sheriff had failed to make reference to article 8 ECHR or engaged in any proper discussion of proportionality.  There was no indication that the Sheriff had asked himself whether it was proportionate to take away parental responsibilities from F when F was not unsuitable for caring; had made persistent attempts to be involved; and had been denied involvement in the life of E through no fault of his. There was no assessment of what good F could bring to the care of E.  When tested against the requirements set out in In re B-S the judgement was woefully inadequate.  Had the Sheriff not made a permanence order there would have been time for all parties to consider their positions and decisions could be taken which were in accordance with the law.

 

On behalf of M

[43]      Distress on separation from the foster carer was not of itself sufficient to substantiate the conclusion that the child's residence with M was likely to be seriously detrimental to the welfare of the child.  The sheriff did not properly consider the proposed plan of M that the child be introduced to her gradually and thus mitigate any distress attendant on separation. If attachment being broken was the test for serious detriment no child in foster care could be moved, for example, to a prospective adopter, as regularly happened.  Attachment to her present carer did not of itself mean that she would suffer significant emotional distress if placed with someone else. She would inevitably have periods of separation from X as she grew up: she would require to go to nursery and school.  It would in accordance with the child’s welfare that she be able to separate from her carer for periods as part of natural growth and healthy development.  The conclusion of the sheriff that E would suffer serious detriment was unjustified.  The evidence before the court did not reach the standard necessary to justify a conclusion of substantial long-term lasting distress (Gorgulu v Germany [2004] 1 FLR 894). The proposals advanced on behalf of M were measured, thoughtful and sensitive.  The analysis of her proposals should have had as their starting point that M was the child's mother and a person of immense significance to the child.  This was in accordance with the United Nations Convention on the Rights of the Child articles 7, 8 and 9 and ECHR article 8.  Mitigation of any distress was feasible.  A very important consideration was the restoration of the child to her own mother with whom the child had the crucial right to reside and to have this relationship maintained (Y C v United Kingdom para 134).

[44]      In order to conclude that M was unable satisfactorily to discharge her parental rights and responsibilities and was likely to continue to be unable to do so for the foreseeable future the sheriff would have required to be satisfied that not only was M at present unable to do so was but was likely to be unable to do so until the child was 18 years old.  It was accepted that M had an unfortunate background: she had been 17 years old when E was born; she had been immature; she had thereafter led an unstable, transient lifestyle.  By the time of the proof, however, M’s life was in a settled state.  She had been living with her mother for more than one year.  That represented a substantial improvement in her ability to maintain a stable residence.  The fact that the environment in the mother's home was strained and the relationship remained volatile did not justify the sheriff’s conclusion with respect to M’s parenting capacity at the time of the proof.  There was evidence from the social worker AC that M might be better placed to care for the child than she had been in the past.

[45]      There was no supportable basis for the conclusion that M would be likely to continue to be unable satisfactorily to discharge her parental rights and responsibilities for the foreseeable future. There were no findings of present delinquent behaviour or mental health problems or a transient lifestyle from which to infer that.  The sheriff had placed too much weight on the attitude of M to the social work department.

[46]      Under reference to In Re B-S the reasoning of the sheriff was inadequate, insufficient and unjustified in the circumstances.  There was no multi-faceted evaluation of the child's welfare which took into account all the pros and cons of each option.  No consideration was given to the profound and intense losses attendant on adoption.  It was incumbent on the sheriff to engage fully with these losses and shortcomings.  There was no proper or effective analysis of proportionality.  The approach to adoption was one-sided.  There was no proper evaluation of "necessity" or "last resort".

 

On behalf of Local Authority

[47]      In considering the question of whether the child's residence with M or F was likely to be seriously detrimental to the welfare of the child the sheriff required to have regard to all the circumstances, bearing in mind the paramount importance of the welfare of the child. He was entitled to infer from the past and present circumstances of M that residence of the child with her would be seriously detrimental to the welfare of E.  In relation to F it was accepted that among the relevant circumstances that fell to be considered was the capacity of F to care for the child.  The reasonable expectation that F might be able to discharge parental responsibilities and exercise parental rights at some point in the foreseeable future required to be balanced with the other facts and circumstances in the case.  The sheriff concluded that the child if the child were to be removed from the care of her foster carer to the care of anyone else she would suffer "significant emotional distress"; he was entitled to conclude that such distress would be seriously detrimental to the child's welfare.  He did not require to be satisfied that such distress would pertain throughout the child's childhood.  The decision required to be made on the basis of the material available at the time and under reference to the foreseeable future.  (TW v Aberdeenshire Council at para [16]).  F had not seen the child since she was about eight weeks old and there was no relationship between them.  F had failed to take advantage of the indirect contact with the child allowed to him by the children's hearing in November 2013.

[48]      Neither parent was offering a viable alternative to a permanence order.  The sheriff had explored their proposals and rejected them.  He was entitled to do so.  The professional opinion of the social worker was that to introduce the child to either parent or both of them after so long without any contact would be seriously detrimental to the child's welfare.  Both M and F were very hostile to the social work department with whom they would require to work in the future.  The sheriff had regard to all the relevant considerations.  The move to care either parent would be seriously detrimental to the welfare of the child.

[49]      In deciding whether in terms of section 83(3)(b) and (c) whether M was unable satisfactory to discharge her responsibilities or exercise her rights and was likely to continue to be unable to do so the sheriff was engaged on what was essentially a fact-finding exercise (S Petitioners 2014 Fam LR 23) the Sheriff was entitled on the facts to dispense with M's consent to adoption.  The sheriff was entitled to rely on the same body of evidence for the purposes of both section 84 and section 83.  In the absence of any reliable evidence demonstrating a changing pattern of the behaviour which had caused problems and concerns in the past the sheriff was entitled to base his assessment of the future upon the evidence relating to the present and the past (S v City of Edinburgh Council 2013 Fam LR 2 at para [29]).  There was no requirement or necessity for him in addition to dispense with M’s consent on the ground set out in section 83(2)(d).

[50]      In relation to F, having decided that there was a reasonable expectation that F might be able to discharge parental responsibilities and exercise parental rights at some point in the foreseeable future, the Sheriff correctly addressed the issues in relation to section 83(2)(d).  He had applied the test of necessity.  The removal of the child from a stable environment and the likely disruption caused by such a move was a relevant circumstance to be weighed in the balance against all of the other relevant considerations, bearing in mind the paramount consideration of the welfare of the child.  It was recognised that severing of the child's ties with her birth family was an interference with the rights of the child and her parents in terms of ECHR article 8 and that such an action must be necessary and proportionate.  The interests of the child in not undergoing further changes to her family situation might override the interests of the parents in reuniting their family (Kutzner v Germany (2002) 35 EHRR 25).

[51]      The sheriff had before him all the necessary evidence; he had addressed all the options and analysed them; he had reached a reasoned judgement.  The requirements of In Re B-S were satisfied.

 

Discussion and decision

[52]      The sheriff approached the making of the permanence order by addressing the conditions and considerations set out in section 84 of the 2007 Act.  Those which were live before him were: whether it would be better for the child that the order be made than that it should not be made (subsection (3)); the requirement to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration (subsection (4)); and whether the child’s residence with F or M would be likely to be seriously detrimental to the welfare of the child (subsection (5)(c)(ii)).

[53]      The sheriff correctly began the exercise by addressing the subsection (5)(c)(ii) issue, bearing in mind the requirement of subsection (4) (TW v Aberdeenshire Council). It is clear from the Sheriff’s findings and Note that the past and present circumstances of both M and F meant that that there was no question of the child immediately going to live with either of them; both of them recognised that.  The sheriff required to look to the foreseeable future (TW v Aberdeenshire Council).  There was clearly uncertainty as to when, if ever, the child could live with either M or F.  The question of the capacity of F and M to look after the child had to be considered in the light of that factual situation. The child had never lived with F and only briefly with M.  We do not accept that the sheriff failed to have regard to the capacity of F to look after the child.  The sheriff had before him a comprehensive body of evidence as to the history of the child and the past and present circumstances of both M and F.  Although F had not been formally assessed as a potential carer for the child (finding in fact [32]), the sheriff had before him the evidence of AC, F himself and his partner, and others.

[54]      The sheriff laid considerable stress on the settled, happy, loving and enduring environment in which the child was being brought up by X.  That arrangement provided the child with long-term security and stability which would safeguard and promote her welfare throughout childhood.  He was entitled to take that into account in assessing the question of serious detriment to her welfare by removing her from that security and stability.  We do not, however, consider that that was the only basis on which the sheriff came to his conclusion on serious detriment.  We reject the contention that the Sheriff failed to have regard to all the circumstances in the case. His conclusion at paragraph [41] must be read in the light of the findings in fact and the Note as a whole.  In our view the sheriff was entitled on the factual material before him to come to the conclusion that residence with M or F would be likely to be seriously detrimental to the welfare of the child.

[55]      Having found that the requirement of subsection 84(5)(c)(ii) was met, the sheriff gave cogent reasons as to why he was satisfied that it was better to make the order than not. We are satisfied that the sheriff was entitled to make the permanence order.

[56]      The sheriff then addressed the question of granting authority for adoption under reference to the conditions set out in section 83 of the 2007 Act.  The requirements of subsection 83(1)(a) and (b) were met: the local authority had requested that the permanence order include authority to adopt and X had been identified as a placement for adoption. The issues which were live before the sheriff were whether the consent of M and F to the making of an order granting authority for adoption should be dispensed with and whether it would be better for the child if the court were to grant authority for the child to be adopted than if it were not to grant such authority (subsection 83(1)(c) and (d)).

[57]      We have earlier set out the basis on which the sheriff concluded that M was unable satisfactorily to discharge her responsibilities or exercise her rights and was likely to continue to be unable to do so.  He had regard to the poor history of M as a mother and her failure to maintain contact with the child or engage adequately with the social work department in relation to the support offered to her.  The sheriff considered that in the foreseeable future M would not be likely to engage with and accept the support that she would require in order to have the care of E or direct contact with her.  We are quite unable to say that the Sheriff erred in concluding that M was unable satisfactorily to discharge her parental responsibilities and rights and was likely to continue to be unable to do so.  This was a matter on which the sheriff had to make an evaluative judgment, assessing the facts that he had found.  In our opinion the Sheriff was entitled to conclude that the consent of M to the making of an order granting authority for adoption should be dispensed with.   

[58]      We agree with the submission of the local authority that it was not necessary or appropriate for the sheriff to go on to consider the welfare test in section 83(2)(d) test in respect of M.  It is only necessary to go on to consider the welfare test in a case in which the incapacity test is not met.  They are alternatives.

[59]      In respect of F, having found that he did not meet the incapacity test, the sheriff considered whether the welfare of the child otherwise required the consent of F to be dispensed with. The approach to this question has recently been considered by the UK Supreme Court in S v L in which the court considered the identical ground in section 31 of the 2007 Act in respect of the making of an adoption order.  At paras [30] - [37] Lord Reed JSC analysed the similar provision in section 31(3)(d) describing it as a “more complex provision than it might appear”.  As the decision whether to dispense with parental consent is a decision relating to the adoption of a child, the word “welfare” has to be read in the context of the provisions of section 14 of the 2007 Act.  Accordingly, in reaching its decision whether to dispense with parental consent on the welfare test, the court must regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration (section 14(3)).  The court must also have regard to the specific matters listed in section 14(4) so far as is reasonably practicable. These are: (a) the value of a stable family unit in the child's development; (b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity); (c) the child's religious persuasion, racial origin and cultural and linguistic background; and (d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

[60]      Lord Reed went on at para [32] to note that the court may dispense with the appellant’s consent only if it is satisfied that the welfare of the child “requires” it. This imposed a high test.  The word “requires” should be given its ordinary English meaning: “to say that something is required means that it is not merely desirable or reasonable, but that it is necessary”.  The making of an adoption order against the wishes of a parent is a very serious intervention by the state in family relationships.  The court will not lightly authorise such intervention. “It did not require the Convention to teach us that”.  Lord Reed quotes from Re SB (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678:

“In this country we take the removal of children from their families extremely seriously…[It] is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society.”

 

Severing family ties between parents and their children will not readily be construed as setting anything less than a test of necessity. Lord Reed continued at para [34]:

“There must, in other words, be an overriding requirement that the adoption proceed for the sake of the child’s welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words that nothing less than adoption will suffice. If the child’s welfare can be equally well secured by a less dramatic intervention, then it cannot be said that the child’s welfare “requires” that consent to adoption should be dispensed with.”

 

The 2007 Act was intended to operate in the context of the Convention rights and this provision requires to be construed in such a way as to satisfy the requirements of ECHR. In Johansen v Norway (1997) 23 EHRR 33 it was held that measures which totally deprived a mother of her family life with her child which were inconsistent with the aim of reuniting them should only be applied in exceptional circumstances and could only be justified “if they were motivated by an overriding requirement pertaining to the child’s best interests”. The requirement for necessity was also justified in terms of the United Nations Convention on the Rights of the Child and other international obligations.

[61]      The requirement of necessity was again stressed by UK Supreme Court in In re B (A Child) [2013] UKSC 33, for example, by Lord Neuberger PSC at para 77:

“… a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions… make it clear that such an order can only be made in “exceptional circumstances” and that it could only be justified by “overriding requirements pertaining to the child’s welfare”, or, putting the same point in slightly different words, “by the overriding necessity of the interests of the child”.

 

[62]      Subsequently, the Court of Appeal in In re B-S, under reference to In re B, set out in trenchant terms what was required of a court making an order involving adoption.  In the judgment of the court handed down by Sir James Munby P at para 22 the message from In re B was drawn together:

“The language used in In re B is striking. Different words and phrases are used but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”.

 

[63]      The court in In re B-S went on to identify two essential requirements in a case in which a court was being asked to approve a care plan for adoption or make a non-consensual placement order or adoption order.  First, there was a requirement for proper evidence which must address all the options which were realistically possible and must contain an analysis of the arguments for and against each option.  Secondly, there must be an adequately reasoned judgement.  At para 43 the court drew attention to what had been said by McFarlane L J in G (A Child) [2013] 3 FCR 293 at a para 50:  the judicial task was to undertake a “global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

[64]      We respectfully agree with the approach of the Court of Appeal in respect of these essential requirements. We do note that the strength of the language used in the judgment reflects particular concern on the part of the court about the process of making decisions in adoption cases in England and Wales.  At para 38 reference is made to a “lamentable” example in which the evidence consisted of no more than conclusions by a social worker not underpinned by evidence.  The judge’s conclusion was a choice of one option over another that was neither reasoned nor supported by evidence.  As a result the evaluative judgment of the judge was vitiated.

[65]      The sheriff heard evidence from a range of witnesses as a result of which he had before him a considerable body of evidence.  From that evidence the options which emerged were: to make no order; to make a permanence order without granting authority to adopt; and to make a permanence order including the grant of authority for adoption.

[66]      The effect of making no order would be that the supervision order would remain in force with the possibility of the development of the proposal advanced by F that he should get to know the child who would eventually come to live with him or that there should eventually be shared care between F and M.  There was evidence in support of that proposal from F and M and the witnesses led on their behalf.  There was evidence to the contrary from the social workers and X. In his exploration of the question of serious detriment to the welfare of the child the sheriff explored this option and gave full reasons for rejecting it.  As we have explained above, we are satisfied that the sheriff was entitled to make the permanence order and to reject the option of making no order.  There was sufficient evidence before him to allow him to make the appropriate evaluative judgment and his reasoning was adequate.  In both respects the requirements of In re B-S were met.

[67]      The remaining options were to make the permanence order without granting authority to adopt or make it with such authority. The following questions require to be addressed.  Was there evidence before the sheriff to justify the conclusion that the welfare of E required him to dispense with the consent of F in terms of section 83(2)(d)?  Did the sheriff correctly apply the tests set out in S v L and In Re B?  Did the sheriff have regard to article 8 ECHR?  Was the reasoning of the sheriff adequate?

[68]      The result of not granting authority for adoption would be to put the child into long-term care of the foster carer with the possibility of contact with F.  Given the history of the life of the child so far it was clear that such contact would be indirect, at least for a significant period of time.  Implicit in the sheriff’s analysis of the reasons for dispensing with F’s consent to adoption are his reasons for rejecting the option of making the permanence order without granting authority to adopt.

[69]      The sheriff made a finding in fact that there had been no formal assessment of F as a potential carer of the child.  Nonetheless, there was evidence before the sheriff as to F’s ability to care for the child from F and his partner CB as well as from the social worker AC.  The sheriff recognised that F might be able to care for the child in the foreseeable future.  On the other hand the sheriff noted that years had passed since F had seen the child; she had no relationship with him or memory of him; she had developed a strong and close bond to her foster carer and was happy and settled in that family; she had been in the care system for all but eight weeks of her three year old life and should not be kept in the care system for longer than necessary; she would benefit from being removed from that system and gaining the security and permanence that adoption would bring.  The sheriff considered that the welfare of the child would not be safeguarded or promoted by returning her to the care of either natural parent or introducing her to either of them with a view to an ultimate return to the care of one or other or both of them.  On the contrary, he was satisfied that such steps would be likely to do positive harm to her welfare because of the uncertainty, instability and insecurity that such measures would be likely to engender in her.  F had not taken advantage of the indirect contact made available to him by the children’s hearing.  The sheriff rejected the evidence that this failure was because a sensible, rational judgement had been made that indirect contact would not provide any real benefit to E;  the sheriff was satisfied that F's failure to cooperate was motivated by his pique at not being allowed direct contact and his distrust and dislike of the social work department.  The sheriff was particularly concerned about the attitude of F to the social work department. The sheriff concluded that it was unlikely that F would co-operate with a gradual process possibly lasting several years.  The sheriff had no confidence whatsoever in the suggestion of shared care by M and F working to the benefit of E’s welfare.  He considered that there was no possibility of M and F avoiding serious animosity between them if they were required to communicate and co-operate with each other. 

[70]      The sheriff did recognise the need for an approach based on necessity. Although he made no reference to S v L, he did refer to In re B and to the decision of the Court of Appeal in P (A Child) [2008] EWCA Civ 535. He identified and applied the “last resort “test.

[71]      Although the sheriff does not specifically address the issue of article 8 ECHR it seems clear from his analysis and his recognition that the word “requires” denotes necessity and his recognition of the test In re B indicates that he has taken cognisance of the requirements of article 8.  The test set out in In re B took account of the requirements of article 8.

[72]      There was evidence before the sheriff in support of, and against, each of the available options.  In his findings in fact and Note the sheriff has provided an adequately reasoned explanation as to why he concluded that the child’s welfare required F’s consent to adoption to be dispensed with.  He has given an adequate explanation as to why he came to the conclusion that “nothing else would do”.  When read as a whole, the judgement of the Sheriff may be said to meet the requirements of B - S.

[73]      In the result the appeal must be refused.  With the exception of paragraph (f) in relation to M, which we have found to be unnecessary and inappropriate, we affirm the interlocutor of the sheriff dated 27 February 2015.