PET: CDF AND DCF FOR AUTHORITY TO ADOPT [2019] ScotCS CSOH

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[1] A proof in this petition commenced on 19 March and concluded on 28 March 2019.

The petitioners were the prospective adopters of the child MRFW who was born on

26 February 2014. The respondents were KL and JJW the birth parents of the said child.

[2] The petition was presented in May 2018 and in accordance with procedure stipulated

by the Adoption and Children (Scotland) Act 2007 (“the Act of 2007”) and Rule of

Court 67.12, the court by interlocutor dated 17 May 2018 appointed a member of the bar to

be curator ad litem to the child MRFW for the purpose of investigating and preparing reports

to the court. In terms of the same interlocutor intimation was ordered on the birth parents.

Intimation to the child was dispensed with on account of her age.

[3] The case called by order on 21 June 2018 at which time both birth parents having

received intimation of the petition were represented. It was intimated to the court that both

parents resisted the prayer of the petition and wished to participate as respondents to the

petition. They were ordained to lodge answers by 3 July 2018. In this opinion the parent KL

will hereafter be referred to as the first respondent and the parent JJW as the second

respondent. By interlocutor dated 5 July 2018 the parties to the petition were allowed a

proof to proceed on 6 November 2018 and seven ensuing days. The same interlocutor

ordained the parties to lodge affidavits in support of their respective positions by

11 September 2018 and to lodge a Joint Minute of Admissions by 9 October 2018. By

interlocutor dated 11 October 2018 the court discharged the first day of the proof previously

allowed and permitted proof to proceed on Wednesday 7 November and the ensuing six

days. On Monday 5 November 2018, two days before the scheduled commencement of the

proof, the case called on the motion of both respondents when counsel for both respondents

indicated that they were no longer instructed on behalf of their respective clients. They were

permitted to withdraw from the bar and the court continued proceedings until the

scheduled diet of proof fixed for 7 November. On that date both respondents appeared,

unrepresented, and after being heard the proof was discharged. The case was continued

until 16 November 2018 to allow the respondents the opportunity to seek new legal

[4] On 16 November 2018 both respondents again appeared unrepresented. Counsel for

the petitioners moved to fix a new diet of proof and this motion was not opposed by either

respondent. A fresh diet of proof was allocated to 5 February 2019 and seven ensuing days.

Parties were ordained to lodged affidavits by 18 January 2019 and a pre-proof by order fixed

for 22 January 2019. Both respondents intimated to the court that they hoped to have

obtained legal representation in time for the new diet of proof. At the pre-proof by order on

22 January 2019, both respondents appeared unrepresented but intimated to the court that

they still intended to instruct solicitors and hoped to be represented at that proof.

[5] At the diet of proof on 5 February 2019 the first respondent appeared in person but

the second respondent was represented by counsel. The proof proceeded but on 6 February,

after sundry procedure, counsel for the second respondent withdrew from acting. The court

having ascertained that both respondents continued in their opposition to the prayer of the

petition discharged the proof diet. Proof had been adduced before Lady Wise and, for

reasons arising from the proof hearing which are not relevant for present purposes, she

recused herself from any further involvement in the case. She appointed the case to call by

order before myself on 13 February. On 13 February 2019 both respondents indicated that

they wished to personally conduct proceedings. A fresh proof diet was allocated for

19 March 2019 and seven ensuing days. A timetable for the lodging of affidavits and

documents was fixed. Proof commenced as scheduled on 19 March 2019 and was conducted

[6] In light of the fact that following the discharge of the diet of proof on 6 February

neither respondent was represented no order was made for a joint minute of agreed facts to

be prepared for the diet of proof scheduled for 19 March. Having regard to that

consideration counsel for the petitioners lodged a document entitled “Chronology” on

8 March 20191 the contents of which were not disputed by either respondent. It is

appropriate that the germane facts in that Chronology be summarised in order to give a

[7] The petitioners are a married couple domiciled in the United Kingdom. The child

MRFW who is the subject of the petition has resided with them since 22 September 2016.

The first and second respondents are the parents of the said child. They have resided

together since 2014. The second respondent is registered on the child’s birth certificate as

her father. Both parents have parental rights and responsibilities in respect of the child.

[8] On 29 January 2014 South Ayrshire Council (“SAC”) convened a Pre-Birth Child

Protection Conference in respect of the then unborn child of KL. As a result of this

conference, the unborn child was placed on the Child Protection Register and it was

resolved that the child should not be placed in her parents care once delivered. On

19 February 2014 a social worker employed by SAC met with Aberlour Family Services

(“Aberlour”) and agreed the terms of an assessment plan which they were to prepare

assessing and reporting on the parenting ability of the unborn child’s parents. A report was

then instructed by the said council. The child was born in hospital on 26 February 2014.

Whilst the child remained in hospital on 28 February 2014 she was made the subject of a

Child Protection Order at Ayr Sheriff Court and placed in the care of TM a female person

who is KL’s step-sister. On 4 March 2014 a Children’s Hearing continued the Child

Protection Order but provided for weekly supervised contact to both respondents. On

11 March 2014 the child was made the subject of an Interim Compulsory Supervision Order

with conditions that she reside with TM and have supervised contact with the respondents

weekly. The Reporter was directed to make an application to the sheriff to determine

grounds of referral. The Interim Compulsory Supervision Order was continued by the

[9] On 6 May 2014 Aberlour began an assessment of the respondents as parents.

[10] On 15 May 2014 a Child Protection Conference continued the child’s registration

under the categories of domestic abuse, parental mental health, physical abuse and neglect.

[11] On 2 June 2014 TM informed a social work employee of SAC that she did not wish to

[12] On 27 June 2014 grounds of referral were established at Ayr Sheriff Court in respect

of the said child and the Interim Compulsory Supervision Order was extended for 22 days

without variation of the conditions previously imposed. On 11 July 2014 Aberlour

recommended that the child should be found an alternative permanent placement as the

respondents had been assessed as unable to meet her basic care needs without support and

[13] On 18 July 2014 the Children’s Hearing declined to make a Compulsory Supervision

Order in the absence of a report on contact and continued the Interim Compulsory

Supervision Order. On 29 July 2014 South Ayrshire Permanence Panel determined that

there was no prospect of rehabilitation of the child and that adoption served the child’s best

interests. The panel required the preparation of an assessment of two persons as

prospective long-term carers for the child. These persons were the sister of the second

respondent and that person’s husband. At the same hearing a request by the paternal

grandmother of the child to be assessed was rejected because of concerns in relation to her

mental health and the relationship she had with the child’s father, the second respondent.

On 1 August 2014 the Children’s Hearing made a Compulsory Supervision Order in respect

of the said child and at the same time increased the respondents’ supervised contact to two

[14] On 17 December 2014 the child began introduction to the persons previously

identified as prospective long-term carers. On 18 December 2014 both respondents had

direct contact with the child. This was the last direct contact the respondents had with the

child. On 19 December 2014 the Children’s Hearing terminated contact between the child

and the respondents. On the same date the child was placed with the said persons being her

[15] On 24 March 2015 the respondents appealed to the Sheriff Court against the

placement of the child with the said carers. That appeal was unsuccessful.

[16] On 28 June 2016 a LAAC Review determined that the child should live with the

petitioners for three days each week. On 22 September 2016 a LAAC Review decided that

the child should live full-time with the petitioners. On 9 December 2016 a Children’s

Hearing varied the Compulsory Supervision Order in respect of the child and required that

the child lived with the petitioners. The petitioners were on the same date deemed relevant

persons. The respondents were to have letterbox contact with the said child.

[17] On 6 June 2017 South Ayrshire Permanence Panel resolved that the child should not

be cared for by her birth parents and that her best interests would be served by adoption.

She was formally matched with the petitioners. On the said date a Children’s Hearing

required South Ayrshire Council to conduct an assessment of whether the birth parents

[18] On 7 November 2017 a Children’s Hearing appointed a Safeguarder. On 4 December

2017 the Safeguarder offered no recommendation in respect of contact. On 15 January 2018

the Children’s Hearing directed that the child should continue to live with the petitioners

[19] The curator’s report was dated 20 June 20182. The curator concluded that the

petitioners were suitable persons to care for the child. She could identify nothing which

would affect their ability to bring the child up. The curator was only able to contact the

respondents by telephone. She was not permitted to visit their home and therefore had no

opportunity to assess their living accommodation. By telephone interview she ascertained

that both respondents were “broken hearted” that the child did not live with them, they

loved her and wished her to live with them. They both felt they “had been kept in the dark”

by social workers. They opposed adoption because “it was too draconian a remedy” and

[20] In relation to the question whether it would be better for the child that the court

should make the order (that is adoption) than it should not make the order, the curator

noted that the Children’s Hearing had declined to give advice to the Sheriff that an order for

adoption be made. The curator herself expressed the view that it was “interesting that a

permanence order had not been pursued in this case.” Having regard to these

considerations her stated view was that the child’s placement with the petitioners could be

supported but “... that something less than adoption could work for this family.” Her

overall conclusion was that she had “no hesitation” in recommending that the child remain

in the care of the petitioners. She did not however feel “... able to wholeheartedly support

[21] This petition is an application for an adoption order where the respondents are the

prospective adoptive child’s birth parents. The court in determining whether or not to make

such an order is required to apply the conditions in section 31 of the 2007 Act. The relevant

“31(1) An adoption order may not be made unless one of the five conditions is met.

(2) The first condition is that, in the case of each parent or guardian of the child,

(a) that the parent or guardian understands what the effect of making an

(b) that the parent's or guardian's consent to the making of the adoption

order should be dispensed with on one of the grounds mentioned in

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

(d) that, where neither of those subsections applies, the welfare of the

(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

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

(a) the parent or guardian has, by virtue of the making of a relevant

order, no parental responsibilities or parental rights in relation to the

(b) it is unlikely that such responsibilities will be imposed on, or such

[22] In relation to the construction of those provisions I am bound by the decision S v L3

where the UK Supreme Court in considering the appropriate construction of section 31 of

“Section 31(3)(d) then repeats the language of section 59(1)(b) of the 2002 Act. In its

context, however, section 31(3)(d) has a narrower scope than the similarly worded

English provision. It applies only where section 31(4) and (5) do not. It is therefore

not, as in England and Wales, the general ground which the court has to consider

when dealing with any parent whose whereabouts are known and who is of full

capacity. Instead, it is relevant only where the court is dealing with the parent who,

in addition to fulfilling these requirements, also falls within neither of the categories

It follows from that decision that this court is required to consider the later provisions in

sub-section (4) before any question arises under section (3)(d) of the 2007 Act. Only if the

court finds that the evidence does not sustain a finding that the respondents are unable

satisfactorily to discharge their responsibility or to exercise their rights, is the court able to

consider whether to dispense with their consent to adoption on welfare grounds.

[23] The petitioners each gave evidence by way of affidavit.4 Each respondent having

considered the terms of these affidavits indicated prior to the petitioners’ appearance in

court that they did not require to cross-examine the petitioners. I accordingly proceeded on

the basis of the whole terms of the petitioners’ affidavits. In addition the petitioners

adduced the evidence of three further persons. First, Gillian May Evans5, a social worker

employed by SAC; second, Elizabeth Paterson6 a Co-ordinator of Children’s Services

employed by SAC; third, Dr Louise Potter7 a Consultant Clinical Psychologist. Each of

these witnesses adhered to the terms of their respective affidavits and were cross-examined

by each respondent. It is appropriate I should interject at this juncture that the extent of

cross-examination was limited and confined to a number of discreet areas. I will elaborate

on this aspect of matters at a later stage in this opinion. In accordance with the views

expressed in the UK Supreme Court in S v L (supra) the approach taken by counsel for the

petitioners was to deal with evidence of parental incapacity habile to support a finding

under section 31(4) of the 2007 Act initially and only subsequently to deal with evidence

relevant to welfare issues. I follow this approach in dealing with the evidence.

[24] Evidence in relation to alleged parental incapacity was to be found, and was founded

upon by counsel for the petitioners, in the affidavits of Gillian May Evans and Elizabeth

6 Affidavit No [19] of process dated 18 October 2018 and supplementary affidavit No 32 of process dated

Paterson. The tenor of the evidence from both these witnesses was that SAC were alerted to

the first respondent’s pregnancy by midwives. Ms Evans deponed that midwives operate a

referral system for vulnerable mothers. The first respondent fell into that category and

caused Ms Evans to conduct inquiries and form her own assessment. She deponed that:

“... I was able to identify the sources of that vulnerability which comprised a history

of domestic abuse, [the first respondent’s] poor mental health, a chaotic lifestyle,

poor home conditions, the effects of the head injury to JW, the baby’s father, JW’s

[25] The child was made the subject of a Child Protection Order on 28 February 2014, that

is two days after her birth, and was placed in the care of the first respondent’s step-sister.

Ms Evans’ unchallenged evidence was that this placement was at that time agreed to by both

respondents. At the same time it was arranged that the placement would be in tandem with

continuing assessment of the respondents’ parenting capacity. In implementation of that the

evidence showed that SAC commissioned an assessment of the parents by Aberlour, an

independent body. The report from that agency was dated 11 July 20149 and was spoken to

by Ms Evans. The “Formulation” of the author of the report10 was:

“[The first and second respondents] are parents that through ... assessment have

been assessed as being unable to meet [the child’s] basic care and continuing

development needs (feeding, changing, managing routines, recognising and

[The second respondent] has been observed as being inconsistent in his parenting

towards[the child] (as detailed in parental responsiveness) as a result [the child’s]

bond is not as strong with [the second respondent] as it is with [the first respondent].

[The second respondent] has demonstrated he is more practical in that he is able to

look at a task and plan the stages however struggles to put this into practice when

[The first respondent] is a loving mother who during contact will express her love

and affection for [the child]. [the first respondent] has demonstrated that she is able

to reassure and comfort [the child] when needed however is not comfortable letting

her cry as a result [the child] is not being taught by [the first respondent] the

importance of self-soothing. Due to [the first respondent’s] inabilities to let [the

child] cry routines such as feeding and changing take longer than they should and

there have been occasions where without staff intervention the routine would not

have been completed due to [the first respondent] comforting [the child] when she

[The respondents] are reluctant to do anything with [the child] other than sit on the

couch together with her or for [the first respondent] to walk around the room

cuddling [the child] which is no longer appropriate to her age and stage of

development. [The respondents] were given resources (Bookbug and Play@Home

Baby) to read and learn about age appropriate activities to do with [the child], having

shown no initiative in this area, they refused to sing the nursery rhyme supported by

staff and did not read Play@Home Baby instead [the second respondent] told the

writer he had been reading books about social work practice and ethics.

[The second respondent] has expressed an unrealistic expectation of parenthood.

When asked what he would do if he had to wind [the child] and [the first

respondent] was not there, he replied this would not happen. When pushed further

he stated that he and [the first respondent] would never be apart if they had [the

child] full-time, the writer asked what would happen if one of them was ill and had

to stay in, [the second respondent] stated they would just go out together still. [The

second respondent] refused to acknowledge that there would be times when they

[The second respondent] has been observed as making inappropriate statements,

during contact on 6/6/14 he stated on several occasions that he would ‘blow up

Bookbug’ (the teddy). He later said that ‘pain can be controlled’ in relation to [the

child] having pulled on his beard. During contact on 12/6/14 [the second

respondent] stated ‘blank out emotion you won’t feel pain’ ‘pain is emotion’ in

response to [the first respondent] talking about [the child] pulling his beard.”

Similar concerns about the respondents’ parenting were spoken to by Ms Evans.11 During

cross-examination the second respondent made it clear that he did not dispute the factual

assertions made in the body of the report. His attention was brought expressly to the part of

the report which I have just quoted. In particular he did not dispute the factual correctness

of those parts I have directly quoted. Cross-examination in relation to these matters was

essentially confined to the proposition that neither respondent had been provided with

direction on how they might address admitted deficiencies in their parenting ability. The

same stance was taken by the first respondent. She elaborated somewhat and asserted that

the only parenting assistance which had been offered by SAC to her was the use of a “virtual

[26] At this point I should record that in addition to accepting deficiencies in parenting

skills at the time the Aberlour assessment was being conducted both respondents accepted

that this deficiency continued at the date of proof. Subject to the caveat that both

respondents maintained that such deficiency was the result of a failure on the part of SAC to

provide sufficient and appropriate instruction on parenting the position of the respondents

was an acceptance that whilst they wished and hoped to be able to act as full-time parents

for the child as some future date they did accept that they were not at the time of the proof

in a position to fulfil that role. They further accepted they would not be able to state when

in the future they would be able to fulfil that role. Having regard to the potential

significance of those concessions and to the fact that the respondents were conducting the

litigation on their own behalf, I noted each of these concessions, read them over to the

respondents and asked, they having the benefit of hearing them again, whether they

continued to adhere to them. They did and I caused a typed version of the concession to be

[27] In relation to welfare, counsel for the petitioners founded on the evidence already

noted in relation to incapacity. Evidence of the petitioners’ ability to care for the child was

given by both Ms Evans and Mrs Paterson who had direct evidence of the petitioner’s home

as a result of visits to that locus and to observing both petitioners in the exercise of their

parenting skills with the child. Support was found in the affidavit of Dr Potter.12 Dr Potter

had originally been instructed by agents then acting for the respondents and had, in that

capacity prepared a report in anticipation of giving evidence in the proof in this petition

which had been scheduled to take place in November 2018. That report had never been

provided to the petitioners nor had it been lodged in court. During the course of cross-

examination of Dr Potter the second respondent indicated that the report contained material

which, had the document been lodged, he would have used for the purposes of cross-

examining Dr Potter. Counsel for the petitioners interjected to observe that he would have

no objection to the lodging of the report notwithstanding the proof had commenced. Whilst

I had no knowledge of the terms of the report (as I should make it clear, was the situation so

far as counsel for the petitioners was concerned) I had concerns that it might be prejudicial

to the respondents if the report was revealed at this late stage. I accordingly advised the

second respondent if he was sure he wished to lodge the document and to exercise care

when reaching a decision on that matter. He reflected on the matter for a period but still

determined that he wished to lodge the document. There being no objection to the late

lodging of the document, I allowed Dr Potter’s report to be received.13 The report concluded

that the child’s removal from the care of the petitioners would be detrimental to her.14 The

language used in the report was strong. In her oral evidence she reiterated that view

observing that the child’s possible removal from the present carers would be “catastrophic”

[28] Each respondent produced a signed statement, the terms of which they adhered to.

A signed statement was also produced from a Mr McCreadie15 and a signed statement from

the second respondent’s mother.16 Counsel for the petitioner indicated that he did not

require to cross-examine Mr McCreadie on the second respondent’s motion.

[29] The statement from Mr McCreadie was in the nature of a testimonial. Mr McCreadie

was a friend of the respondents. He spoke to noticing an improvement in their general

behaviour and ability to manage household affairs in the period between December 2014

[30] The second respondent’s mother provided a number of statement where she raised

various issues of an essentially legal nature. The legal arguments were in the main based

upon English statutory provisions pertaining to child care and adoption or international

conventions which are not directly incorporated into Scottish law. Beyond that the first

respondent’s mother confirmed that she had some direct experience of the petitioners’ care

of the child. She made no criticisms of this and indeed both praised and supported the

petitioners’ ability to look after the child. She offered herself as an alternative carer of the

child and asserted that she would be able to fulfil this role. She confirmed that she did not

consider that the respondents were, at the date of the proof, able to provide the necessary

[31] So far as the evidence of the respondents was concerned, it was broadly consistent

with the line they had adopted in cross-examination. In essence this was to accept that at

the time of the child’s birth and in the period between that date and their last contact with

the child in December 2014, they had not been in a position to provide the necessary level of

care and parenting for the child. Further, as already noted, they both accepted that they

were not at the date of proof able to provide the necessary level of care for the child. They

yet further agreed that they could not say when they would be in a position to provide the

necessary level of care. In relation to each of these matters the position was that the failure

on their part to be able to provide the necessary level of care was a direct result of the

inability of SAC to provide the instruction which would have enabled them to provide care

for the child. The first respondent indicated that she had in the period since the child’s birth

made inquiries of North Ayrshire Council as to whether any instruction in parenting skills

could be provided. She said that the council indicated they provided parenting skills classes

but only to couples who had custody or direct care of a child. Had that been the situation

the first respondent indicated that she understood that North Ayrshire Council would have

admitted her and the second respondent to such classes. She also said that she had made

inquiries of Women’s Aid who had also indicated that parenting skills classes could be made

[32] The other matter to which both respondents adverted in evidence was to stress,

repeatedly and forcibly that they considered their blood link with the child to be important,

indeed vital in their view, to her future development. They both asserted that any

deficiency in attachment which the child may have to them, a matter spoken to by Dr Potter,

could be compensated by the love that they would give to her. They did not consider that

any long-term damage would be occasioned to the child if the current placement was

disrupted and the child returned, at some unknown date in the future, to their direct care.

Likewise they did not consider there would be any long-term damage so far as the child was

concerned if in the period between them being in a position to provide adequate care and

parenting for the child the child was looked after by the second respondent’s mother.

[33] The first task which the court must determine is whether or not the court is satisfied

that the test set forth in section 31(4), that is that the first and second respondents are unable

satisfactorily to discharge parental responsibilities in relation to the child, has been satisfied.

That question is a factual issue and must be determined upon the evidence available.

[34] In the present instance that evidence is relatively straightforward and, moreover and

importantly, unchallenged. Both petitioners accepted during the course of the proof that at

the date of the child’s birth and throughout the period between then and their last contact

with the child in December 2014 they were not and could not offer appropriate parenting for

the child. It was further accepted by both respondents that this inability to provide

appropriate parenting for the child continued in the period between last contact in

December 2014 and the date of proof. Moreover, the concession went so far as to accept that

neither respondent was in a position to indicate when they would be able to provide

[35] Concessions of this sort are, in my opinion, sufficient to provide a determinative

answer to the test adumbrated in section 31(4) of the 2007 Act. There is however additional

evidence to assist the court in answering the question in that section. The paternal

grandmother of the child provided evidence in the form of a signed statement. She was not

cross-examined on that statement and I can therefore treat it as evidence. In terms of the

statements the paternal grandmother stated her view that the respondents had not been able

to provide adequate care and parenting for the child and that this remained the situation at

the date of proof. The two social workers who gave evidence on behalf of the petitioners,

Ms Evans and Mrs Paterson both expressed the view that the respondents were not capable

of providing adequate care and parenting for the child. They stated reasoned views for this

decision. Counsel for the petitioners quite properly put those views and the reasons for

them to the second respondent when cross-examining him and, candidly and fairly, he

accepted that the views of these two witnesses on these matters were properly and correctly

[36] The opposition to an adverse finding in respect of the section 31(4) test was confined

to both respondents maintaining that they had not been offered appropriate training in

relation to parenting by SAC. Having regard to the breadth of the concession made by both

respondents in respect of parenting capacity, I do not consider that this line of defence avails

them. It should however be noted that both Ms Evans and Mrs Paterson dealt with that

issue by indicating that at the time of the birth of the child, both respondents had been

offered guidance in parenting from Aberlour who had been instructed to prepare the

parenting capacity report. As spoken to by Ms Evans the report from Aberlour indicated

that the respondents had not been able to properly engage with instruction in parenting

given to them. After contact with the child by the respondents ceased in December 2014,

both Mrs Paterson and Ms Evans deponed that there had been no effective contact with the

respondents and indeed efforts by SAC to engage with the respondents had been rejected.

In these circumstances I form the conclusion that the respondents have either been unwilling

or unable to avail themselves of instruction in parenting offered or available to them.

[37] Having regard to the foregoing considerations I am satisfied that it has been

established as a matter of fact that both respondents as parents of the child have been shown

to be unable to discharge parental responsibilities in relation to the child.

[38] When I turn to consider the welfare grounds in section 31(3) of the 2007 Act, the

evidence is again in relatively narrow compass. The child has never been cared for by the

respondents. She has not seen the respondents since December 2014 at which date she was

approximately 10 months old. It is plain that the child will have no direct recollection of the

respondents, a fact confirmed by the curator ad litem in her report, the affidavits of the

[39] On the evidence of Dr Potter the child has had a disrupted infancy and, in common

with all children in such a situation, there is a concern in relation to attachment. She has no

attachment to the respondents. By contrast, again primarily relying on the evidence of

Dr Potter, she has developed attachment with both petitioners. She has to Dr Potter

expressed her desire to be adopted and to continue to reside with the petitioners.

Dr Potter’s oral evidence, in amplification of her deposition in her affidavit and her report,

expressed the view that it would be “catastrophic” if the child were to be removed from the

care of the petitioners. I am bound to observe that the language employed by Dr Potter

which I have just quoted is in extremely strong terms for a skilled witness giving evidence

before a court. Beyond that, counsel for the petitioners founded on more generalised

propositions in the nature of the need of this child to have the security and permanence of a

family unit within which to be brought up. All the evidence in the case was clear that this

[40] The situation is accordingly one where the child has no attachment to the

respondents but secure attachment to the petitioners. Particularly having regard to the

disrupted infancy the child has experienced the evidence available to the court was that

disruption of the child’s attachment with the petitioners would be “catastrophic”. In these

circumstances I am satisfied that the welfare test is answered in favour of adoption.

[41] I am of course required to consider having regard to the implications of adoption as

to whether any lesser step would be satisfactory. The lesser step would be the making of no

order. One consequence of this would be the fact that the child would remain subject to

Compulsory Supervision Orders which would require annual review. A further

consequence would be that parental rights and responsibilities would remain with the

respondents. Having regard to the disruptive childhood experienced by the child and her

need for security and permanence, I do not consider that those consequences would be

satisfactory and, further, that they would be inimical to her wellbeing and welfare. In these

circumstances I am satisfied that the need for an adoption order is made out.

[42] There remains the issue of contact. The respondents’ position was that in the event

that, contrary to their submission, an order for adoption is made they would wish regular

direct contact. By contrast the position of the petitioners was that they were content for

[43] On the evidence of Dr Potter, direct contact would be disruptive and threaten the

attachment that has developed between the child and the petitioners. She was clearly of the

view that it would not be in the child’s interests for such contact. The respondents’ primary

argument in favour of direct contact rested upon what they characterise as the “blood link”

between them and the child. There is now authority from the English Court of Appeal that

there is no right arising simply from a blood link.17 Moreover, the position of Ms Evans,

Mrs Paterson and Dr Potter was to accept as a matter of general principle the importance of

making an adopted child aware of her biological family and cultural and social roots arising

therefrom was accepted. Their view that this was best facilitated by indirect contact and the

17 In re W (a child) adoption: grandparents competing claim [2017] 1 WLR 889

use of memory boxes and such other tools. The evidence clearly demonstrated that both

petitioners also accepted the importance of these factors and were wholly co-operative with

[44] Having regard to all the foregoing, I will grant the prayer of the petition. I will

further order indirect contact in favour of the respondents on two occasions each year.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PET: CDF AND DCF FOR AUTHORITY TO ADOPT [2019] ScotCS CSOH_37 (23 April 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_37.html Cite as: [2019] ScotCS CSOH_37

Scottish Court of Session Decisions