SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

F09/06

JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause THE HIGHLAND COUNCIL Petitioners against B Respondent

Act: Mr Daniel Kelly QC instructed by the Highland Council

Alt: Mr Ross Macfarlane, advocate, instructed by Scottish Legal Aid Board, Inverness

Inverness: 29 December 2008

The sheriff principal, having resumed consideration of the cause,

A. Allows the appeal and recalls that part of the interlocutor of the sheriff dated 26 February 2008 which begins with the words "FINDS IN LAW" and ends with the words "reserves meantime the question of expenses";

B. Adheres to the findings in fact in that interlocutor subject (a) to the deletion in the first sentence of finding in fact 10 of the words "a health visitor noted that", (b) to the deletion in the last sentence of finding in fact 20 of the words "She reported that" and the substitution therefor of the words "Sometime previously", and (c) to the deletion of findings in fact 11, 13, 14, 15, 16, 21, 22, 26 and 36 and the substitution therefor of the following:

11. On about 5 November 2003, L slapped the children across their faces. Over the previous three to four months he had begun slapping the children on the head and face. One smack which he gave to J was so hard that the respondent heard it from the garden. In the spring of 2002 he had smacked K on the thigh leaving red finger marks and he had on occasion bent J's wrist causing it to be sore and red. The respondent was advised not to allow L into the house.

13. At or about 13 October 2004, the respondent was continuing to have difficulty with the children's behaviour. K was wetting and soiling and the children were causing damage to the fabric of the house. J was wandering out of her garden and going into neighbours' houses. K had flooded the house on two or three occasions filling the sink, toilet and bath to such an extent that the water went through the ceiling and electrics in the house. During an inspection on 15 October 2004, it was found that the house was in a state of disarray. The petitioners advised the respondent that routine and stability were required within the house before any changes in the children's behaviour would be possible.

14. In November 2004, K was angry and disruptive at a nursery he attended.

15. On about 25 November 2004 L was still involved in the children's lives but was not then staying at the respondent's house. She said that she found it difficult to keep him away.

16. K was referred in about January 2005 to a consultant paediatrician to see if there was a medical cause for his soiling and behavioural problems. In point of fact his behaviour was related to his having a vulnerable personality almost certainly related to his environment, and it was indicated that a high level of support would be required for the respondent to achieve a level of adequate parenting and house management.

21. On another occasion, K consumed shampoo twice in the one day and on a separate occasion he had swallowed Calpol.

22. On about 13 June 2005, K put the edge of a coat hanger and a pencil into his anus and attempted to do the same with a stone. J had had an unexplained rash on her genital area and a discharge from her vagina. A medical examination of the children was carried out on 17 June 2005 by a community paediatrician. There was no evidence of sexual abuse and the children's behaviour was almost certainly related to emotional stress due to their home circumstances.

26. At a children's hearing on 16 August 2005, the respondent accepted the ground of referral that in terms of section 52(2)(c) of the Children (Scotland) Act 1995 the children were likely (i) to suffer unnecessarily or (ii) to be impaired seriously in their health or development due to a lack of parental care. The respondent admitted the statements of facts in support of that ground. The petitioners' production number 3.4 is a copy of the ground of referral for J. The statement of facts in her case read as follows:

1. that J was born on ......... 2002 and normally lives with her mother, B, and brother, K (dob ....... 01), at ............ ;

2. that B has a history of mental health illness and is supported by the Community Mental Health Team;

3. that B uses drugs on a regular basis;

4. that B uses negative and demeaning language towards J;

5. that the family home is lacking in adequate furnishings, heating and appropriate toys;

6. that on occasion the family home is in a dirty and unhygienic condition;

7. that on occasions J exhibits the behaviour of an unhappy and distressed child;

8. that J has been voluntarily accommodated by the Local Authority since 20 June 2005 as her mother was unable to provide adequate care;

9. that despite the intervention and support of professional agencies B has been unable to provide a sustained and consistent level of care for J.

36. The children reside together with long term foster carers (who are now their prospective adoptive parents) and have done so since 13 June 2006. They are flourishing there. They have bonded well with the carers. The children call them "mummy" and "daddy". For some time after they were removed from the respondent's care they were seeing her for two hours every five weeks for supervised contact. But contact ceased in or about February 2008 at her request and there was thereafter no contact between her and the children at least until 5 December 2008 (when the sheriff at Dingwall was due to hear an appeal by the respondent against the decision of the children's hearing on 23 September 2008 to terminate contact between her and the children).

C. Adds five new findings in fact as follows:

38. On 20 November 2006 a children's hearing was convened to provide advice to the court in relation to this application in terms of section 73(13) of the Children (Scotland) Act 1995. The advice was as follows:

1. B has a long history of mental health problems, drug and alcohol abuse, following a traumatic childhood.

2. B has failed over a period of many years to demonstrate an awareness of the needs of her children.

3. Continued support by multi-agencies has had little or no impact on addressing the underlying issues and necessities of basic house and childcare.

4. SW reports indicate that a variety of abuses have taken place whilst in the care of B. Episodes of earlier physical abuse have been disclosed by the children to their foster carers.

5. The children are thriving with the prospective adopters and permanency will guarantee the normal family life and home they need to develop normally.

6. The panel unreservedly recommends the freeing for adoption for K.

39. The respondent has been given an opportunity of making, if she so wishes, a declaration that she prefers not to be involved in future questions concerning the adoption of the children. She has declined to make such a declaration.

40. L has no intention of applying for, or, if he did so apply, it is likely that he would be refused, an order under section 11 of the Children (Scotland) Act 1995. In addition he has no intention of entering into an agreement with the respondent under section 4(1) of that Act and, even if he had such an intention, no agreement under the sub-section is likely to be made.

41. Adoption orders would best safeguard and promote the welfare of the children throughout their respective lives.

42. K continues to feel responsible for the respondent and worries that she is on her own. But neither he nor J are of an age or maturity at which any significant weight should be attached to any views they might have about whether or not they should be adopted.

D. Finds in fact and in law:

1. The respondent is withholding her agreement unreasonably to the making of an adoption order in relation to each of the children;

2. The respondent has persistently failed, without reasonable cause, to fulfil her parental responsibility to safeguard and promote the children's health, development and welfare.

3. The agreement of the respondent to the making of an adoption order in relation to each of the children should accordingly be dispensed with.

4. It would be better for each of the children that this court should make an order declaring him or, as the case may be, her free for adoption than that it should not do so.

5. In consequence of the making of the foregoing orders compulsory measures of supervision in respect of the children will no longer be necessary.

E. Finds in law:

1. An order declaring each of the children free for adoption should be made.

2. The children should forthwith cease to be subject to supervision requirements.

F. Dispenses with the agreement of the respondent to the making of an adoption order in relation to the child K born on ......... 2001, declares the child free for adoption accordingly and determines that he shall forthwith cease to be subject to the supervision requirement to which he is currently subject.

G. Finds no expenses due to or by either of the parties in respect of the proceedings both before the sheriff and in this appeal.

Note

[1] This note should be read in conjunction with the note appended to my interlocutor dated 8 July 2008. For the reasons there stated I have been persuaded that the sheriff's findings in law numbers 1 and 2 cannot stand and should be recalled. Up-to-date reports on the two children have been received from the curatrix ad litem, and I am now in a position to decide for myself whether at least one of the grounds under section 16(2) of the Adoption (Scotland) Act 1978 ("the Act") relied upon by the petitioners has been established and, if so, whether orders should be made dispensing with the respondent's agreement to the making of an adoption order in relation to each of the children and declaring them free for adoption.

[2] It will be seen that I have made the amendments to the findings in fact foreshadowed in paragraph [7] of my previous note. I have also added five new findings in fact numbered 38 to 42 inclusive. These record the advice of the children's hearing and also reflect the provisions of sections 6(1) and 18(6) and (7) of the Act. I should perhaps add here that, apart from the proposed finding in fact to which I referred to in paragraph [19] of my previous note, counsel for the respondent did not suggest that any further findings in fact should be added to those which had been made by the sheriff, for example to reflect the evidence of the four witnesses for the respondent who had so impressed him. Moreover, while he opposed the amendments to those of the sheriff's findings in fact in which it was said that the respondent had reported that certain events had occurred, he did so not because these events had not in fact occurred but because the way in which these findings in fact had been framed by the sheriff was, as he put it, eloquent of the fundamental truthfulness of the respondent and also reflected the evidence as it had actually come out during the proof. For my own part, I am quite content to accept the sheriff's assessment that the respondent was being "entirely candid and honest about the past events and her own shortcomings" - see page 21 of his note. At the same time if, as is accepted, the events reported by the respondent occurred then I think that the findings in fact should say so, and I have amended them accordingly.

[3] I considered the question whether in relation to each of the children the respondent had persistently failed, without reasonable cause, to fulfil her parental responsibility to safeguard and promote the child's health, development and welfare in some detail in my previous note, and it is unnecessary that I should repeat at length what I said there. Suffice it to say that I agree with counsel for the petitioners that the findings in fact point very clearly to the conclusion that this ground has been established in relation to both children. It may well be that, as the respondent's four witnesses appear to have indicated, she was able to care satisfactorily for the children at times. But even if this be so, it does not seem to me to gainsay the picture of persistent failure on the part of the respondent over a period of more or less three years which emerges from the findings in fact and the obvious inference to be drawn from the very disturbed state of the children when they were first taken into foster care and their significant (and rapid) improvement thereafter.

[4] As to whether there was a reasonable cause for the respondent's failure, none has been suggested apart from the involvement of L in her and the children's lives, and I have already considered this aspect of the matter at paragraphs [17] to [20] of my previous note. In addition to what I said there, two further considerations may be mentioned. In the first place, it is a sad fact that many mothers of young children are caught up in abusive relationships with their partners and yet somehow succeed in caring satisfactorily for their children. So it may be asked why it should have been different in the case of the respondent. Needless to say, the findings in fact do not appear to me to afford any sort of satisfactory answer to this question. And secondly, it should be noted that neither the findings in fact nor what the sheriff said about the matter at page 18 of his note suggest that the respondent had any particular difficulty in being rid of L after he had sexually assaulted her on 23 May 2005. So here again it may be asked why, if she was able to be rid of him then, she was unable to achieve this when, for example, he was assaulting her children. In all the circumstances I do not consider that his presence and behaviour have been shown to have been a cause, let alone a reasonable cause, for the respondent's persistent failure in this respect.

[5] Turning to the question whether the respondent is unreasonably withholding her agreement to the making of an adoption order in relation to each of the children, I think that, in deciding whether or not to withhold agreement, a reasonable mother in her position would take into account a variety of considerations, including in particular the following:-

1. She would recognise that, despite all the help which had been offered to her as narrated in findings in fact 7, 8 and 9, she had persistently failed, without reasonable cause, to fulfil her parental responsibility in relation to each of the children to safeguard and promote the child's health, development and welfare during the years until they were placed in foster care on 20 June 2005. She would recognise too that she had subsequently accepted the grounds of referral at the children's hearing on 16 August 2005 as narrated in finding in fact 26.

2. She would recognise that the children, who even now are aged only 7 and 6 respectively, have lived with their prospective adoptive parents since June 2006, are happy, settled and have bonded well with them and call them "Mummy" and "Daddy", and further that it would be very distressing and confusing for them to uproot them from their present homes with their prospective adoptive parents. Moreover, they do not appear to have evinced any desire, for their own sakes, to return to the care of the respondent. It is true that, as appears from the curatix's latest report upon him, K is worried about the respondent being on her own and continues to feel responsible for her, expressing the view that he could make her a "better mum". At the same time, as a reasonable parent she would recognise that neither of the children is of an age or maturity at which much, if any, weight should be attached to their views about what should be done about the future arrangements for their care and that, to the extent that K's concern for her may be equiparated with a wish to return to live with her, this wish is borne not so much of what may be in his own interests as of what may be in her interests.

3. She would acknowledge that her eldest child S was removed from her care in October 1998, following concerns that she was not coping in looking after him and was being verbally abusive to and neglectful of him and concerns also that a number of young people were staying at her home and that the home conditions were unsuitable or unsafe for a child.

4. She would recognise that, since they were placed in foster care, she has had very limited contact with the children, all of it supervised, and that at least between February and the end of November this year she had no contact at all with them.

5. She would recognise that against this whole background, and given in particular K's behavioural problems, it would be most unlikely that she would be able satisfactorily to safeguard and promote the health, development and welfare of K and J if they were to be returned to her care on a full-time basis and that accordingly, whatever the outcome of the present applications, it is most unlikely that they will be returned to her care.

6. She would recognise that the prospective adoptive parents have evidently done very well in caring for the children, are devoted to them and are willing to commit themselves to their well-being to the extent of adopting them. As a reasonable parent she would take into account both the distress that would be caused to the prospective adoptive parents if the children were to be removed from their care now and the anxiety which they will be experiencing at the moment pending the outcome of the current applications to declare the children free for adoption.

7. As their mother the respondent understandably wishes to have the children rehabilitated into her care and does not want to lose her parental rights and responsibilities in relation to them. She would quite justifiably point to the improvement in her own home circumstances since the children were placed in foster care, at least to the extent that this was the position in June 2006 when the witness Angela Booth last saw her house - see page 15 of the sheriff's judgment. As a reasonable mother she would quite properly take into account her own distress at having to surrender the care of her children to others.

8. She would recognise that under current legislation the effect of orders declaring the children free for adoption would be to extinguish her parental rights and responsibilities in relation to them, that such orders could not be made conditional upon her having a continued right of contact with them and that she would thereafter be deprived permanently of the right to apply to the court for an order for contact with either or both of the children so that thereafter she would at best have only limited opportunities for contact with them dependent entirely on the goodwill of the prospective adoptive parents. At the same time, as a reasonable parent, she would recognise that these considerations, while no doubt important, should not be seen as decisive factors in determining whether or not the orders now sought should be granted.

9. She would recognise that under the provisions of the Adoption and Children (Scotland) Act 2007 a permanence order may be made in respect of a child which may include provision for ongoing contact between the child and its natural parent and that, with the leave of the court, it will be possible for an application for a contact order to be made by a person whose parental responsibilities or parental rights in relation to a child have been extinguished on the making of an adoption order. At the same time she would recognise that the 2007 Act is not yet in force, that there is no certainty when (if indeed it all) it will be brought into force, nor is there any certainty that, even if it were in force, either an adoption order or a permanence order would be sought or granted in respect of either of K or J in terms of the 2007 Act.

10. She would recognise that, even if the current applications were to be refused, it would be unrealistic to expect that the children would be removed from the care of the prospective adoptive parents so long as they were willing to continue to care for them, and further that there does not appear to be any indication at the moment that they would not be willing to continue to care for them. She might point out that, at least in theory, if these applications were to be refused, the prospective adoptive parents would be entitled to apply to the court to adopt the two children under section 12 of the Act, and that orders made under this section could include conditions about continuing contact between the respondent and the children. But she would have to acknowledge that it must be considered an open question whether, having seen how much time and expense have been incurred in the disposal of the present applications, the prospective adoptive parents would be willing to pursue applications under section 12 unless the children had first been declared free for adoption. Moreover, as a reasonable parent, the respondent would recognise the damage that could be done to the children by any further delay in determining their futures. She would want the best arrangements to be made for them as soon as possible and would recognise that granting the present applications would bring much-needed, and long overdue, certainty into the future arrangements for the care of the children.

11. In this last context as a reasonable parent the respondent would consider the alternatives to adoption which would, in all probability, involve some sort of long-term fostering arrangements for the children which, under current legislation, might be secured, for example, by the continuation by the children's hearing of supervision requirements in respect of the children, by the granting of parental responsibilities orders in relation to them in terms of section 86 of the Children (Scotland) Act 1995 or by the making of orders in relation to parental responsibilities and rights under section 11 of the 1995 Act. But she would recognise that none of these alternatives would offer the children - or for that matter the prospective adoptive parents - the same degree of stability, security and permanence as would be achieved by the making of adoption orders in relation to the children. She would recognise that the granting of adoption orders would afford the best means of safeguarding their welfare throughout their respective lives, and against this background she would want to do what she could to facilitate the granting of such orders as soon as possible. To this end she would recognise that the granting of the present applications would clear the way for the prospective adoptive parents to apply to the court to adopt the children safe in the knowledge that such applications would be likely to be granted without undue delay.

12. She would recognise that both the children's hearing (see finding in fact 38) and the curatrix ad litem had supported the making of orders declaring the children free for adoption. She would recognise in particular that the curatrix, having had the advantage of seeing recently both the children, the prospective adoptive parents and members of the staff at the children's school, had expressed herself in very clear terms as being in favour of the orders now sought - see in particular paragraphs (a), (e) and (f) of each of her latest reports.

[6] In my opinion, when regard is had to all the relevant considerations set out above, the conclusion clearly emerges that the respondent is unreasonably withholding her agreement to the making of adoption orders in relation to each of the children. I do not doubt that it will be most distressing for her to learn that the children have been declared free for adoption given her understandable wish as their mother to be entrusted once more with their care. But sympathy for her feelings is not the proper method of approach. The reasonableness of her decision must be judged by an objective standard. A reasonable parent in her position would put the welfare of her children first, and if she did that, she could not in my view reasonably withhold her agreement.

[7] Being satisfied as a matter of fact that both the grounds specified in section 16(2) of the Act upon which the petitioners rely in these applications have been established, I next have to consider whether I am satisfied that I should dispense with the agreement of the respondent to the making of an adoption order in relation to each of the children upon one or other or both of these grounds. At this stage I have to exercise my discretion, and in so doing I must be guided by the provisions of sections 6(1) and 24(3) of the Act. Section 6(1) provides:

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

(a) shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration; and

(b) shall have regard so far as practicable -

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

(ii) to his religious persuasion, racial origin and cultural and linguistic background.

Section 24(3) provides:

24(3) In considering whether to make an adoption order or an order under section 18(1), the court shall regard the welfare of the child concerned as its paramount consideration and shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not.

[8] At this stage I am entitled to, and do, take into account the same considerations as I have suggested would be taken into account by a reasonable parent in this case in deciding whether or not to withhold agreement. It is unnecessary to repeat these here. Needless to say, in cases of this kind it will commonly be possible to point to further inquiries that might be made if time were no object and there will always be a degree of uncertainty about what the future holds, so that one can never be absolutely sure that an order declaring a child free for adoption will turn out to have been the best available option for that particular child. Yet all the while time marches on, the child continues to grow inexorably and there comes a point in time when the court just has to grasp the nettle and make the best judgment it can on an application such as this in light of all the available information and subject always to the provisions of sections 6(1) and 24(3) of the Act. So approaching the matter, I have had very little hesitation in concluding that the agreement of the respondent to the making of an adoption order in relation to each of the children in this case should indeed be dispensed with. In a nutshell what these two children need now above all is the assurance of a secure, stable and permanent home in which they may grow up and in which they will receive the consistent and loving care of committed parent figures, and much the best way of achieving this outcome in my opinion would be to clear the way for their adoption by the prospective adoptive parents by granting the orders now sought by the petitioners.

[9] At various points in his submissions counsel for the respondent touched upon article 8 of the European Convention on Human Rights which provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

I hope I am not doing counsel an injustice when I say that he did not develop his submissions on this aspect of the matter at any length beyond submitting that I had to be satisfied that the granting of freeing orders in respect of the children would be a proportionate response to their needs and that I could not be so satisfied in the absence of a discussion by the curatrix in her latest reports of what would be the comparative advantages and disadvantages of the alternatives to the orders sought by the petitioners.

[10] It is true that, despite the comment in paragraph [28] of my previous note (which was not, as counsel suggested, an instruction) that it would be helpful to see in her reports a discussion by the curatrix of the alternatives to the orders sought in these two applications and of the advantages and disadvantages of these alternatives as compared with the orders sought, the curatrix did not in fact embark upon such a discussion. But this is certainly not fatal to these applications since the court is quite capable of identifying for itself what these alternatives are and of weighing up their relative advantages and disadvantages. And in this particular case it is plain that none of these possible alternatives offers at this point in time anything like the same degree of assurance as do the orders sought by the petitioners of a stable, secure and permanent home for the children which, as I have indicated, is what they need above all now.

[11] It is I think clear enough from the authorities that the interference with the respondent's right under article 8 to respect for her private and family life which is implicit in the making of freeing orders in respect of the children may only be justified if it is in accordance with the law, pursues a legitimate aim or aims under article 8(2) and can be regarded as "necessary in a democratic society". It is clear too in this case that such an interference is in accordance with the law, namely the provisions of the Act, and pursues an aim which is legitimate under article 8(2), namely the protection of the health, rights and freedoms of each of the children. The issue thus comes to be whether orders declaring each of them free for adoption may be seen as necessary in light of the circumstances of this case as a whole.

[12] For my own part, I am quite satisfied that these orders are necessary for the reasons which I have already outlined in explaining why I consider that the respondent's agreement to the making of adoption orders should be dispensed with. In short, the children have now been living happily and securely in the care of the prospective adoptive parents for more or less two and a half years, there is no realistic prospect of their being returned to the care of the respondent even if the orders now sought are refused and it is high time that a decision should be made which will put an end to the ongoing uncertainty of their current situations and clear the way for them to be adopted by the prospective adoptive parents so that they may be granted the stability and security of a permanent home with committed and capable parents which ought to be the birthright of every child. Of all the options available, only the orders now sought offer the assured prospect of this here and now and accordingly they are in my view indeed necessary in light of the overriding requirements of these children's best interests.

[13] Counsel for the petitioners submitted under reference to section 18(9) of the Act that, in the event that orders were made declaring the two children free for adoption, compulsory measures of supervision in respect of them would no longer be necessary with the result that I should determine that they should forthwith cease to be subject to supervision requirements. I am indeed satisfied that, in consequence of the making of these orders, compulsory measures of supervision in respect of the children will no longer be necessary and I have therefore determined that the children should forthwith cease to be subject to the supervision requirements to which they are presently subject.

[14] It was agreed that, whatever the outcome of the present applications, no expenses should be found due to or by either of the parties in respect of the proceedings before the sheriff or in this appeal.

[15] In addition to the authorities mentioned in my previous note, I was also referred to Wilkinson & Norrie: The Law Relating to Parent and Child in Scotland (2nd Edn) at pages 141 et seq, Macphail's Sheriff Court Practice (3rd Edn) at page 660, Lothian Regional Council -v- A 1992 SLT 858, A -v- B and C 1971 SC (HL) 129, West Lothian Council -v- McG 2002 SC 411, In re P 1977 Fam 25, G -v- G 1985 1WLR 647, Britton -v- Central Regional Council 1986 SLT 207, Benmax -v- Austin Motor Co 1955 AC 370, Thomas -v- Thomas 1947 SC (HL) 45 and Forbes -v- Forbes 1965 SLT 109.