Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: PO18/09
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal in the cause   CITY OF EDINBURGH COUNCIL Petitioners for a Permanence Order with authority to adopt   Under the Adoption and Children (Scotland) Act 2007   In respect of the child C.C.     ___________________________

 

Act: Murray, Advocate instructed by Hughes Walker, Solicitors for first appellant the mother of C.C.

Aitken, Solicitor, Thorley Stephenson for the second named appellant, father of C.C.

 

Alt: Ms Malcolm, Advocate for petitioners and now respondents

 

 

 

EDINBURGH, 12 November 2012

The Sheriff Principal having resumed consideration of the cause, allows the appeal in part, makes a further finding in fact to be inserted at the end of the present Finding in Fact 31 in the following terms: "the second respondent had been referred by his GP to the Community Drug Problem Service (CDPS) in May 2007. By May 2010 he was discharged from attending CDPS at which time he tested positive for prescribed diazepam only.", thereafter, having considered the findings in fact and the provisions of the Adoption and Children (Scotland) Act 2007 refuses the appeal and adheres to the sheriff's interlocutor of 24 February 2012; finds no expenses due to or by any party in respect of the appeal proceedings.

(signed) Mhairi M Stephen

 

NOTE:

1.          This appeal lies against the sheriff's interlocutor of 24 February 2012 making a permanence order in favour of the petitioners City of Edinburgh Council who are an Adoption Agency in terms of the Adoption and Children (Scotland) Act 2007 (which will be referred to as "the 2007 Act"). The permanence order is made in relation to a child C.C. born on 3 February 2008 and vests parental rights and responsibilities in respect of C.C. in the petitioners. The order extinguishes the rights and responsibilities of C.C.'s parents C & B with the exception of the right and responsibility to maintain personal relations. In terms of the sheriff's interlocutor contact is limited to indirect contact between C.C. and her parents. The sheriff's order grants authority for C.C. to be adopted having dispensed with parental consent in terms of section 83(2)(c) of the 2007 Act.

 

2.          The first named respondent is C.C.'s mother C. - born 26 August 1980. The second named respondent is C.C.'s father B - born 19 July 1984. The grounds of appeal are notes number 43 and 44 of process respectively. The respondents do not agree to the making of the permanence order and do not consent to their daughter C.C. being adopted. In the course of these proceedings I will refer to the parents who are the appellants in their original designation as respondents in this petition.

 

3.          Mr Murray presented the appeal for the mother, the first named respondent. He presented written submissions which in addition to the note of appeal no 43 of process and the authorities in the bundle for the first named respondent form the basis of his appeal. After preliminary discussion Mr Murray intimated that he did not propose to make any submission with regard to the ground of appeal mentioned in paragraph 4 of the note of appeal.

 

4.          Mr Murray's motion is to allow the appeal, recall the sheriff's interlocutor of 24 February 2012, dismiss the petition or alternatively order a rehearing or proof.

 

5.          Mr Murray presented written submissions and I do not intend to record these at length in this judgment. He presented arguments in three chapters:-

1.          Procedural irregularity sufficient to vitiate the proper conduct and fairness of the proceedings -

(a)     the section 95 report and its associated procedure;

(b)     delay by the sheriff in issuing judgment

2.          Unlawful infringement of the appellant's right to contact with her daughter and its consequences;

3.          The failure of the judgment to address requisite matters in the judgment.

 

6.          With regard to the first ground of appeal (the section 95 report) I observe that section 95 of the 2007 Act places a duty on the children's hearing to prepare a report for the court containing such information as the regulations prescribe. This duty applies when a children's hearing proposes to modify a supervision requirement that has been made in respect of a child. Section 95(1)(c)(ii) applies in this case given that there has been an application for a permanence order which has not yet been determined. Accordingly, section 95(1) is engaged. Section 96 of the 2007 Act means that the supervision requirement may not be modified until the application (permanence application) is determined or withdrawn or abandoned unless the court to which the application is made refers the child's case to the principal reporter. In this case the section 95 report was submitted by the hearing in April 2010 and in May 2010 the sheriff referred the report to the principal reporter thus dis-applying the prohibition on modification of a supervision requirement whilst the case is before the court. The rules to be followed are the Sheriff Court Adoption Rules 2009 and the appropriate rule is Rule 51 which deals with the procedure on receipt of a report from the children's hearing under section 95.

 

7.          Mr Aitken appeared for the father, the second named respondent. Mr Aitken adopted and updated the submissions he had presented to the sheriff following proof.

 

8.          Essentially Mr Aitken did not challenge the existing findings in fact and accepted that there had been evidence to support these findings. Mr Aitken's first ground of appeal can be divided into two parts. Firstly, that the sheriff failed to address the evidence heard by her. There was undisputed evidence relating to his client's progress in respect of drug treatment which is not reflected in the findings in fact. In that regard he referred to the transcript of evidence, particularly days 1 and 6. As a result the sheriff failed to properly address the test set out in section 84(5)(c)(ii) of the 2007 Act. Firstly, she was unable to address the test due to her inadequate findings in fact and secondly, was unable to address the test properly as the test implies that it must be addressed in the present tense ("is seriously detrimental to the welfare of the child") and the future tense ("is likely to be seriously detrimental to the welfare of the child"). Furthermore, the sheriff was unable to address the test required of her in section 83(3) of the 2007 Act when considering whether to dispense with parental consent which is similarly a test that has to be applied using the present and future tense. The sheriff reached her decision based on historic facts and circumstances.

 

9.          The second ground of appeal argued on behalf of the second named respondent is that the sheriff failed to assess and evaluate the evidence given by the witnesses and her judgment lacks the analysis of the evidence which is necessary in order that parties understand the reasons for the decision. The need for a sheriff to state reasons in a decision is an important part of the sheriff's duties. The sheriff's lack of reasoning and her failure to have regard to the submissions made by parties relating to the 2007 Act and Article 8 of the European Convention on Human Rights were errors and omissions which undermine her decision. In particular, the sheriff fails to address why the orders which she makes are "necessary" having regard to the right to respect for family life and the welfare of the child.

 

 

PETITIONERS' SUBMISSIONS

10.        Ms Malcolm for the petitioner addressed the arguments presented by both respondents. She fairly conceded that the submission made by Mr Aitken on behalf of the second named respondent in respect of the evidence addressing his client's drug rehabilitation would not be opposed however she did take issue with his submissions in respect of alcohol use. She accepted that the sheriff's judgment did not adequately address the submissions made to her in law on the tests to be applied in sections 83 and 84 of the 2007 Act. The sheriff had not addressed the European jurisprudence relating to the Article 8 point. Otherwise, Ms Malcolm addressed the submissions made by both parties and concluded that the procedural irregularity in respect of the section 95 report was not sufficiently damaging to the justice of the proceedings (C. v Miller supra). She placed the section 95 report in its procedural and substantive context. Likewise, she argued that the undisputed delay in this case, contributed to by a number of parties, did not vitiate the process nor did it vitiate the sheriff's assessment of the test to be applied in deciding firstly, whether to grant a permanence order and secondly, whether to dispense with parental consent.

 

11.        Ms Malcolm presented submissions on the question of contact and the sheriff's assessment of the evidence. Ms Malcolm suggested that the "seriously detrimental" test posed in section 84(5) of the 2007 Act could be met by inference from the findings in fact.

 

12.        Accordingly, she urged refusal of the appeal. Alternatively, I could substitute my own decision given that the findings in fact were not criticised and remained intact. I could decide the case with or without consideration of the evidence contained in the transcript of evidence. I was urged to have regard to the detrimental effect on the child in terms of uncertainty and delay should a rehearing be required.

 

 

DECISION

13.        This appeal is taken against the sheriff's interlocutor of 24 February 2012. There is some confusion over the correct date of the interlocutor however parties are agreed that the date is 24 February 2012. The later date mentioned in some copies of the Sheriff's judgment of 5 March 2012 seems to reflect the date when typographical and other errors were corrected.

 

14.           The interlocutors are pronounced in an application or petition by the City of Edinburgh Council for a permanence order under section 80 of the 2007 Act in respect of the child C.C. who was born on 3 February 2008.

 

15.        The application, lodged on 24 January 2010, when the child was almost two years old seeks a permanence order in relation to C.C. to include the mandatory provision in terms of section 81 of the 2007 Act and also the following ancillary provisions:-

Parental responsibilities mentioned in section 1(i)(a)(b) and (d) of the Children (Scotland) Act 1995 ("the 1995 Act") and parental rights mentioned in section 2(i)(b) and (d) of the 1995 Act.

 

An order granting authority for the child C.C. to be adopted and to dispense with consent of C and B the parents.

 

16.        The application is opposed by the parents of C.C. who are the first and second respondents (natural mother and father respectively) They are C. who is the mother of C.C. who herself was born on 26 August 1980 and B. who is the father and who was born on 19 July 1984. Both C. and B. have parental rights and responsibilities in respect of C.C.

 

17.           C. and B. have never married. They have had a relationship on and off since December 2006. C. has a child from an earlier relationship (S.C.) who must now be 15 and who has been brought up in the care of her maternal grandmother in Kirkcaldy. B. has a daughter by an earlier relationship who resides with her mother and with whom B. exercises contact.

 

18.           C. and B. have another child A.C. born on 26 February 2011 shortly after the proof in these proceedings concluded.

 

 

BACKGROUND

19.        Prior to the first respondent C. giving birth to the child C.C. in February 2008 there were concerns on the part of professionals in the petitioners' children's and family department as to the ability of the parents C. and B. to look after the child once born. This was due partly to the nature of the relationship between the parents which had been unstable, volatile and with complaints of domestic violence. There were concerns also about the parents' use of illicit drugs and alcohol, together with the standard of accommodation and therefore their ability to care for C.C. and keep her safe. At a pre-birth child protection case conference in December 2007 a decision was made to place the unborn child's name on the child protection register due to the child being at risk of physical neglect and physical injury. It was also considered necessary for the child to be accommodated at birth due to the significant concerns over the respondents' ability to look after the baby and keep it safe. This was discussed with the parents who did not agree to the child being accommodated voluntarily. A child protection order was granted at this court on 7 February 2008 which was considered by the children's hearing on 11 February 2008 and continued. C.C. was accommodated with foster carers. She was with the same foster carer between 7 February 2008 and 7 July 2010 when the placement was changed to her current carers. The foster carer who had cared for C.C. since birth wished to retire in the course of 2010 and it was necessary to find an alternative suitable placement. The current carers are also the prospective adopters.

 

20.           C.C. is looked after as an accommodated child subject to a supervision requirement under section 70 of the Childres (Scotland) Act 1995 with a condition of residence with her current carers. A condition of supervised contact has been attached to that requirement throughout the child's life and the frequency of and arrangements for contact have varied over the years. The arrangements for contact and other aspects of contact are addressed more fully in the sheriff's findings in fact. The last contact between the parents and C.C. took place in July 2010. I understand that contact was due to operate monthly in 2010 when this petition was before the court. For a number of reasons including C.C.'s welfare but also due to the proof proceeding in October 2010 there was an agreement between the petitioners and respondents that contact would not be exercised.

 

21.           Following C.C.'s birth and her being accommodated with foster carers the plan was to rehabilitate the child into the respondents' care. In the summer of 2008 there were increasing concerns about the parents' relationship and lifestyle which was then characterised by alcohol and drug abuse; and domestic violence leading to an unstable and chaotic lifestyle. It was disclosed that B. assaulted C. during June 2008 and as a result the parents separated. C. took part in a parenting assessment between August and September 2008. That assessment highlighted C.'s inability to put C.C.'s needs before her own and therefore C. was assessed as being unable to meet C.C.'s needs and care for her. B. was placed on probation due to his criminal behaviour towards C. aggravated by this being a domestic incident. He was not considered to be a suitable carer for C.C. on his own and there were increasing concerns about his aggressive and unpredictable behaviour.

 

22.           An adoption and fostering permanency panel on 18 November 2008 unanimously agreed that C.C.'s long term needs would be best met through a freeing for adoption order and no further attempts would be made at rehabilitation. Regrettably, the petitioners failed to act timeously on that decision and failed to lodge the freeing application. The child continued to be accommodated. A safeguarder was appointed to C.C. and her continuing care and needs reviewed by the petitioners and by the children's hearing. Another adoption and fostering panel met on 20 October 2009 and agreed to proceed with an application for a permanence order. By that time the 2007 Act was in force.

 

 

PROCEDURAL MATTERS

23.        On 21 January 2010 the application/petition was lodged in this court whereupon arrangements were put in place for reports to be obtained from the curator ad litem/reporting officer. The Reporting officer/curator appointed by the court has significant and indeed perhaps unrivalled experience of preparing such reports and his report was available to the sheriff by 24 February 2010. Thereafter a diet of hearing was fixed for 8 March 2010 following which the parents lodged answers and proof was fixed for 27 September 2010 and four following days.

 

24.           On 15 April 2010 the children's hearing submitted a report to the court now known as a section 95 report (being a reference to section 95 of the 2007 Act). Once such a report is received the court requires to follow the procedures set out in the 2007 Act and also in Chapter 4 Rule 51 of the Act of Sederunt (Sheriff Court Rules (Amendment) (Adoption and Children) (Scotland) Act 2007) 2009. When an application is made for a permanence order normally the supervision requirement in respect of the child who is the subject of the application cannot be varied or modified. Where the application has not been determined and the children's hearing wishes to vary a requirement or insert a new requirement the hearing must prepare a report for the court (section 95 report) containing such information as is proper relating to their intentions. The content of the report is regulated by Article 3 of the Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Permanence Orders) Regulations 2009. The report by the children's hearing under section 95(2) of the 2007 Act stated inter alia that the hearing proposed to modify the existing supervision requirement. It narrated the terms of the current supervision requirement and proposed to change the condition of residence to new carers identified as Mr & Mrs M. and that supervised contact continue once per month but instead of being for two hours would be for one hour each per parent, as the parents were no longer a couple. The reason given for changing the condition of residence was "present carer wishes to retire - C. requires this care and support at this crucial time in her development".

 

25.           By interlocutor of 23 April 2010 the sheriff ordered intimation on the respondents as required by Rule 51(1) of the 2009 Act of Sederunt.

Rule 51(2) states:-

"Any person who receives notice under paragraph (1)(b) and who wishes to oppose the proposals of the children's hearing must lodge a form of response in form 24 within seven days of the date the notice was given."

 

The sheriff proceeded to consider the report in terms of Rule 51(3) on 13 May 2010 no response having been lodged by C. or B. and she referred the case to the children's hearing thus dis-applying the prohibition on modifying a supervision requirement whilst an application for a permanence order is pending and prior to it being determined. However, intimation to both parents of the section 95 report made by both recorded delivery and first class ordinary post had been ineffective and the letters of intimation returned to the sheriff clerk. I assume this fact had either been overlooked or not noticed by the sheriff and sheriff clerk.

 

26.        The principal reporter convened a children's hearing which met on 23 June 2010. Both respondents attended. The supervision requirement was varied as proposed in the section 95 report. No appeal was taken by either parent against the decision of the children's hearing.

 

27.           The proof diet originally fixed for 27 September 2010 and the four following days was discharged on 22 September 2010 following the solicitor for the mother withdrawing from acting. The proof was rescheduled for four weeks later beginning 25 October 2010. The days originally assigned for the proof were used to hear a motion lodged on behalf of the natural mother (No 30 of process) which sought dismissal of the petition which failing leave to appeal the interlocutors of 23 April and 13 May 2010 being the interlocutors dealing with the section 95 report. The sheriff heard submissions and on 1 October 2010 refused the motion and also refused leave to appeal the interlocutors referred to. After some further procedure at the pre-proof hearing the proof proceeded on 25 October and following days. The proof not having concluded the diet was adjourned until 16 December 2010 with submissions concluding on 11 and 12 January 2011 when the sheriff made avizandum.

 

28.           The first respondent gave birth to A.C. on 26 February 2011 whilst the current petition was at avizandum. On 23 June 2011 no judgment having been issued by the sheriff the solicitors for the first respondent (mother) lodged a motion with the court seeking further proof in order that parties including the first respondent could lead additional evidence particularly as regards the present circumstances of C. and A.C. which may affect the welfare of C.C.. C.C. now had a full sibling who resided with the first respondent and this constituted a material change of circumstances. The sheriff heard the motion at the beginning of August and allowed further proof which was fixed for the beginning of November 2011. On 1 November 2011 the first respondent indicated that she no longer wished to lead evidence in respect of her current circumstances and the manner in which they may impact on C.C. No other party sought or offered to lead evidence and after a review of authorities the sheriff again made avizandum.

 

29.           On 24 February 2012 the sheriff issued her judgment.

 

30.           Following notes of appeal being lodged on behalf of the first and second respondents an appeal hearing fixed for 25 and 26 July 2012 was discharged on the motion of the father, the second named respondent, assigning instead 10 and 11 October. During the appeal process a further section 95 report was received from the children's hearing in April 2012. The report indicated that the panel proposed to modify an existing supervision requirement by removing the condition of contact between the child and her parents. Both parents opposed the proposed modification and I declined to refer the case to the principal reporter in order to preserve the status quo pending the outcome of the appeal which at that stage was due to be heard in July.

 

 

GROUNDS OF APPEAL

Against that background I turn to deal with the grounds of appeal.

 

First Respondent's Grounds of Appeal - Section 95 Procedure

31.        I do not propose to rehearse the grounds stated by Mr Murray for the first named respondent - mother - which are set out at paragraphs 1.1 to 1.3 of the note of appeal. Paragraphs 1.1 and 1.2 narrate the background and no issue appears to be taken with that information. Mr Murray's submission was to the effect that the failure of the court to ensure effective intimation on the parents of the section 95 report together with the failure on the part of the panel to tell the sheriff in that report that the new foster carers identified to look after C.C., once Dot Scott intimated her intention to retire, were also the prospective adoptive couple - these factors taken together were of such materiality as to be damaging to the justice of these proceedings and warranted dismissal of the petition. C v Miller 2003 SLT 1379.

 

32.           Mr Aiken for the second named respondent - father -did not seek recall of the earlier interlocutors of 23 April and 13 May 2010. He did not have a separate ground of appeal with regard to the section 95 Act application but supported Mr Murray's submission that the procedure adopted with regard to the section 95 report in this case together with the omissions from the report were damaging to justice. The parents were denied an opportunity to have their position vis-à-vis the proposals in the report known to the sheriff. He also referred to the decision of Sheriff Mackie in City of Edinburgh Council Petitioner (C.M.) 2012 Fam LR 89.

 

33.           The petitioners accepted that there had been a procedural irregularity with regard to the lack of intimation on the parents but this was not fatal to the case nor was it sufficiently damaging to the justice of the proceedings. Ms Malcolm, for the council, considered that the section 95 report was accurate. The children's panel had taken an appropriate and proportionate approach. Dot Scott had intimated her intention to retire so change was inevitable and had to be planned all in the best interests of C.C.. The children's hearing had been open with the parents at hearings both prior to and after the section 95 procedure. It was openly known and discussed that the new foster carers were the prospective adoptive couple. This was first discussed at the hearing on 24 March 2010 with all parties in attendance including both respondents. Furthermore, the respondents had an opportunity to challenge by way of appeal to the sheriff any decision of the children's hearing following the sheriff's decision to refer the report and the case to the principal reporter.

 

34.           That the court attempted to intimate the section 95 report on both respondents at the address on the petition is beyond doubt. However, letters sent by recorded delivery and separately by first class post had been returned to the court and they were returned prior to the interlocutor complained of dated 13 May 2010. Mr Murray points out that there was a procedural error on the part of the court by failing to intimate to the first respondent at the correct address. He states that the current address of his client and indeed the second respondent are set out in the answers and also in the legal aid certificate. That being so, I suggest that the error on the part of the court appears to be quite unintentional and indeed to an extent understandable. Mr Murray is correct to observe that the respondents' new addresses are not as stated in the petition. However, the legal aid certificates were lodged after the interlocutor of May 2010 and are therefore of no assistance or relevance. The parents' new addresses are indeed in the answers had the clerk taken time to peruse the answers. More pertinently, the curator ad litem flags up the issue of the whereabouts of the parties with the words - "the reports herewith. You will note the new address for the mother. So far as the father is concerned Mr Aitken of Thorley Stephenson may be able to assist as to his now address."- written 22 February 2010. At that stage there seemed to be doubt as to the second respondent's address. He was thought to be serving a sentence of imprisonment. The respondents have had a number of addresses both together and separately. In such cases care must be taken by all concerned to ensure that up to date addresses are noted and logged otherwise these mistakes will continue.

 

35.        The second aspect to this ground of appeal is the omission on the part of the children's panel to tell the sheriff that the foster carers identified as Mr & Mrs M. were not only the proposed new foster carers but also the prospective adoptive couple. This material omission of crucial information together with the procedural error created a situation potentially damaging to the justice of the proceedings as a whole. Mr Murray argued that the sheriff was wrong to refuse his motion to dismiss the petition when the matter was reviewed on the same arguments at the end of September 2010.

 

36.        Any defect in procedure has the potential to be damaging to the interests of justice and the justice of the proceedings. What the effect of the procedural error may be will depend on the circumstances of the individual case and cannot be looked at simply in the narrow sense of failing to give the respondents an opportunity of making their views known to the sheriff. It would be speculation to suggest what the sheriff may have done had proper intimation been achieved. However, the form 23 sent with the intimation would invite the respondents' to state their position and then the sheriff would decide whether to make the referral or have a hearing. The statutory instrument permits the sheriff to have a hearing but does not compel the sheriff to have a hearing. The procedure is set against the background of the children's hearing structure and it is the children's hearing, at the end of the day who make the decision as to whether to vary the supervision requirement. All parties are notified of the children's hearing. In the particular circumstances of this case it is clear that the focus is a child who has been looked after since birth and who was just over two at the time of the section 95 report. The question of permanency had been considered by two separate adoption and permanency panels in October 2008 and October 2009. Permanency planning for the child had been discussed openly since July 2008. I refer to the joint minute of admissions, paragraph 33, where this information is set out and agreed. I accept entirely that the court's superintendence of arrangements relating to a child who is the subject of supervision requirement is the intention of the 2007 Act. The section 95 procedure is a new procedure and is designed to vest in the court a degree of control whilst there are permanency proceedings pending before the court. I refer to Sheriff Mackie's decision in the case of City of Edinburgh Council Petitioner (C.M.) 2010 Fam LR 89.

 

37.        The 2007 Act affirms the supervisory jurisdiction of the court in decisions relating to a child whilst a permanence order application is pending before that court. The court has a duty to make decisions in the best interests of the child and the sheriff is best placed to make such decisions having regard also to the overall interests of justice to all parties. It is not difficult to understand why the procedure now known as section 95 procedure exists. Children's hearings properly have the jurisdiction to deal with regular reviews for children looked after and subject to supervision requirements. It is proper and necessary that they exercise that function and do so in the child's best interest. It follows that during the currency of permanence proceedings that the hearing must not make new supervision requirements or modify existing supervision requirements in a material fashion without submitting these proposals together with any justification for the proposals to the court to exercise that supervisory function. That appears to me to be the intention of the legislation and the prohibition on the children's hearing making such modifications does not apply if the sheriff decides to refer the case back to the children's hearing via the principal reporter.

 

38.        Accordingly, the report from the children's hearing must be comprehensive, candid and contain all relevant information that the sheriff requires in the exercise of the court's supervisory function. This is so, because the court is not obliged to have any form of hearing or enquiry before considering the report. On the other hand, the court's imprimatur is required even if all of the relevant people agree as to the proposed modification. The court requires to exercise its function based on reliable information.

 

39.        However, returning to the present circumstances it is unwise to speculate as to the sheriff's reasoning when presented with the report, apparently unopposed, on 13 May 2010. The sheriff had access to the relevant background papers including the answers which must have made it abundantly clear that the parents did not agree with the petitioner's proposals for the child and were opposed to the grant of the application. The sheriff was entitled, by virtue of Rule 51 of the Sheriff Court Adoption Rules 2009, to hold a hearing in order to assist her to decide what to do about the report from the children's hearing. For example, the sheriff could have ordered a hearing and made enquiry with regard to the current carers' circumstances and desire to retire and also the proposed new carers. That she did not do so does not per se point to unfairness. The defect in intimation resulted from unintentional oversight or possibly carelessness. It had the effect that the current respondents were not aware of the report although they ought to have been aware of the proposals contained in the report and the fact that the new carers were also the prospective adopters. The sheriff was aware of the terms of the application and the opposition as set out in the answers. It does not therefore, appear to me that the defect in procedure was of such materiality that the justice of the proceedings was totally undermined and damaged. I come to that view having regard to the factors I have mentioned and also these important facts - firstly: a hearing in May 2010 would have brought to the attention of the sheriff what the other parties appear to have been aware of - namely that the proposed carers were also the prospective adoptive couple. The sheriff may have then caused enquiry to be made as to Dot Scott's plans for retiral. Secondly, the section 95 procedure, however one looks at it, would not have resulted in C.C. returning to the care of the respondents. Thirdly, that the sheriff would have made a decision as to whether to refer the case to the reporter knowing that a move to the prospective adoptive couple as proposed carers may result having regard to the fact that the proof was due to take place in approximately four months. And fourthly I have had regard to the fact that the decision to modify the supervision requirement by placing C.C. with new carers (who were the prospective adopters) was a decision of the children's hearing which decision was capable of review on appeal to the sheriff by virtue of the procedure set down in section 51 of the Children (Scotland) Act 1995. Accordingly, I find that the lack of intimation and the failure on the part of the children's hearing to provide the sheriff with full relevant information in the section 95 report are errors and omissions which have been correctly highlighted and criticised. The question for me is whether the irregularities are of such materiality as to damage the justice of these proceedings. (C v Miller). The proceedings clearly relate to the interests of a young child and that is the overall consideration for the court namely, the welfare and best interests of the child C.C.. Decision making in respect of a child of that age who is subject to a supervision requirement is a matrix of tribunal and court and as such I am satisfied for the reasons I have given that there are sufficient safeguards in this decision making process that the damage to these proceedings is not of such profound materiality as to hold that the justice of these proceedings is irreparably damaged. I therefore reject this ground of appeal.

 

 

First Respondent's Grounds of Appeal - Delay and the Consequences of Delay

40.        It was argued on behalf of the first respondent that the delay by the sheriff in issuing her judgment was per se a procedural irregularity of sufficient significance to justify dismissal on account of material injustice. Furthermore, it was argued that the consequence of delay was firstly, that the sheriff prejudiced the respondents' prospects vis-à-vis the application by allowing further time for the child to bond with the prospective adoptive parents and the correlation to that being the consequential prejudice to the parents by virtue of the cessation of contact being prolonged which is a fact that the sheriff relies on. The delay, also has the consequence of potentially infringing the first respondent's right to a family life. Thirdly, the delay has prevented the mother bringing the sheriff's decision to appeal or under review within a reasonable timescale in the context of the child's age and residence with the prospective adoptive parents. Fourthly, the sheriff was unable to properly answer the test required of her in the legislation, in particular, the test set out in section 84(5)(c) that test being a current/prospective test of circumstances relating to the child and the child's residence with the first respondent. In other words, the sheriff was working with out of date information and it was impossible to know at what stage she deals with the test: at avizandum or a year later?

 

41.           The sheriff failed to issue her judgment in terms of Rule 22(3) of the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 nor did she comply with the terms of the Sheriffdom Practice Note No 1 of 2009 which states:-

"It shall be the duty of the court to secure that all applications and other proceedings under the Act are dealt with as expeditiously as possible and with the minimum of delay. Such applications and proceedings require the co-operation of all concerned and active and firm case management by the sheriff throughout their course."

It is not easy to understand why the sheriff took so long to issue her judgment in a case involving the welfare of a young child. More than 13 months elapsed between the date of avizandum and the sheriff's interlocutor and note. The analysis of the procedural steps which I have set out above indicates that in the middle of this period there was a motion by the first named respondent for further proof due to a material change in circumstances. Clearly this is an important matter but does not answer the concern I express about the delay in issuing a judgment in this type of case. The sheriff's judgment ought to have been issued significantly prior to the motion being lodged and indeed before A.C. was born on 26 February 2011. Nevertheless, examination of the "further evidence" procedure does shed some light on aspects of delay and indeed the substantial criticism that the sheriff issued a judgment on out of date facts. It was not disputed at the appeal hearing that C. by motion dated 23 June 2011 sought to lead additional evidence based on her giving birth to A.C. on 26 February 2011 that being a material change in circumstances likely to affect or have a bearing on the welfare of C.C.. It was argued that the court could not be satisfied as to whether the test set out in section 84(5)(c)(ii) is met without further evidence relating to C.'s care of A.C. a full sibling to C.C..

 

42.        Set against the extraordinary delay which had already occurred, the procedure which followed can only be described as dilatory. Following the lodging of a motion some six weeks elapsed before the sheriff heard parties on the motion following which on 8 August the sheriff allowed further proof and assigned three days in November 2011 some three months distant. Mr Murray, counsel for the first respondents supplied some explanation as to that delay. The first respondent wished to instruct an expert who would report inter alia on the psychological impact on C.C. growing up separate from and knowing that a younger full sibling was being cared for by the first respondent, who was also her mother. In the event, the first respondent and, indeed all parties, declined to lead any evidence before the sheriff on the dates assigned for proof. It is, I recognise, noteworthy that the sheriff also did not consider it appropriate to refresh or have an up to date report from the reporting officer and curator ad litem. That being so I was informed that one day of the second proof diet was utilised at least in part to review decisions which had been issued in permanence order cases since January 2011 in particular the Inner House decision in A.N.S and Another v M.L. [2011] CSIH 38. It appears to me therefore that the sheriff having decided to allow further proof was effectively stymied from progressing this matter until the date of proof at the beginning of November 2011. This procedure is not without significance. Not only did it contribute to the overall delay in the issue of the judgment but it is also an important factor given that the first respondent and indeed any other party had an opportunity to lead further evidence before the sheriff but declined to do so.

 

43.        Accordingly, delay must be looked at in the round before considering the consequences of that delay.

 

44.        Apart from the sheriff's contribution to the length of these proceedings it appears that prior to these proceedings commencing the petitioners inexplicably lost a year or so during which the legislation changed and the 2007 Act replaced the Adoption (Scotland) Act 1978 as amended. Little has been said about that lost period during which the child remained with her then foster carer Dot Scott who was by the date of the adoption and fostering panel meeting (October 2008) beginning her planning for retirement. In the event, she continued to look after C.C. despite the petitioners' failure to proceed with freeing proceedings under the 1978 Act. This also caused unnecessary delay to these proceedings.

 

45.        Quite apart from the rules of court and the practice note the appeal court has addressed the issue of the delay. In Lothian Regional Council v A 1992 SLT 858 Lord President Hope commented on delay specifically in the context of lack of proper case management; prolixity on the part of representatives; a failure to address the likely timescale of the proof and delay in the issue of judgments. These were largely obiter observations as delay did not form any part of the grounds of appeal argued before the Inner House. Recently in ANS and Another v M.L. Lord Reed sitting in the Supreme Court had this to say:

"52. The damaging consequences of delay in the determination of adoption proceedings have long been well-known. The longer the proceedings unfold, the stronger the attachments which the child is likely to form with the prospective adopters, and they with the child. The child may identify wholly with the new family. It may be profoundly damaging to the child if the court does not endorse that new identity. The protracted uncertainty may itself be damaging and distressing. In the interests of the welfare of the child, or out of common humanity towards all the individuals involved, it is imperative that unnecessary delay should be avoided. The duty to avoid undue delay in the determination of disputes of this nature, in order to comply with the obligations imposed by article 8, has also been made clear many times by the European court. As is obvious, undue delay in the determination of adoption proceedings may have irreversible effects upon the child, and may in any event bring about the de facto determination of the issue. Parliament recognized, in section 25A of the 1978 Act, the need to avoid delay in particular when it is sought to dispense with parental consent to the making of an adoption order: the court was required under that provision, 'with a view to determining the question without delay', to draw up a timetable for the proceedings and to give directions designed to ensure that the timetable was adhered to. There is no equivalent provision in the 2007 Act, but the importance of avoiding delay is instead reflected, as I shall explain, in Practice Notes and rules of court."

Delay erodes justice. It erodes public confidence in the court system. In certain circumstances it can defeat justice. Delay in cases involving children is unacceptable especially as there are clear rules and in this sheriffdom a practice note which addresses these matters. The practice note is actively endorsed by those administering the courts in this sheriffdom on a day to day basis and ought to be followed by all involved in such cases including the sheriff. That has not happened and is a justifiable criticism of the sheriff.

 

46.           However, the matter does not end there, it is essential when considering procedural delay to look at the whole context of the delay and the consequences of that delay.

 

47.        I have considered carefully the circumstances relating to the matter of delay and the authorities to which I have been referred. I am of the view that it would be wrong to reach the conclusion that delay on the part of the sheriff has been fatal to these proceedings. The delay is unacceptable but does not entirely lie at the hands of the sheriff. Caution and the nature of these proceedings must guide me when considering what the consequences of the delay are. It has been acknowledged that delay is bad for almost all involved but particularly for the child. If the guiding consideration for the court is the overall best interests of the child I cannot see that these interests are met by inflicting intolerable uncertainty on the child and those involved with the child including the respondents. I have taken care to consider the substantive consequences of the delay for the first named respondent, in particular. To a significant extent the criticism which the first respondent makes of the sheriff can be met by the sheriff ultimately affording to her the windfall of her delay and that is the opportunity to come back to court with an account of her new family life and how she is discharging her parental responsibilities towards her child A.C.. The importance of that procedural stage cannot be underestimated. The sheriff allowed further proof in the interests of justice due to this material change in circumstances. In granting the first respondent's motion for, in effect, a new proof, the sheriff must have accepted that the birth of A.C. constituted a material change in circumstances such as to have an impact on her decision with regard to C.C.. The terms of the motion were directed towards the section 84(5)(c) test namely, whether the court could be satisfied or not that residence with the first respondent is or is likely to be "seriously detrimental" to the welfare of C.C.. That no evidence was led before the sheriff is a significant factor and a factor which, in my view, undermines the first respondent's argument that the sheriff, when she issued her judgment, could not address this test. By implication the sheriff was criticised in not having instructed an up to date report. However, just as the sheriff could not compel the first respondent, or any other party, to lead evidence before her in November last year likewise the reporter and curator ad litem cannot compel co-operation with his procedures and reports. Accordingly, this ground of appeal in my view fails, especially as neither of the respondents in their submissions challenged, to any significant extent, the findings in fact and indeed accepted that there was a basis in the evidence for all the findings in fact. Furthermore, it appeared to be common ground that if further proof were to be ordered now there would be little new evidence led from the petitioners as there had been no developments since July 2010 when the last contact took place other than the child continuing to reside with and presumably bond with her foster carers and prospective adopters. The evidence that the sheriff might have had significant regard to would have come from the respondents themselves. That did not happen and we are where we are now with the findings in fact intact. Lastly, I should say that the sheriff's delay in issuing her judgment did not, in itself, perpetuate the absence of contact between the respondents and C.C.. In submission before me it appeared to be common ground that the last contact occurred in July 2010 principally due to negative factors relating to that contact and its effect on C.C. and that subsequently there was an agreement that contact would not take place around the time of the proof. Following proof contact was subject to the supervision requirement and the regular review of the children's hearing. A section 95 report from the children's hearing received during the currency of the appeal proceedings was not remitted to the principal reporter by me with a view to maintaining the status quo pending the appeal being heard.

 

48.        Before leaving the issue of delay I have considered the effect of delay on the development of C.C.'s bond with the prospective adopters. It is acknowledged that attachments will form and strengthen with the passage of time and it makes for more damage if these attachments are damaged by uncertainty also. Delay has an adverse effect on all parties and others especially the child. It is significant however that the sheriff does not rely on the bond between C.C. and the foster carers in justifying her decision.

 

First Respondent's ground of appeal - contact

49.        The first respondent advances substantial criticism of the sheriff's reasoning on the issue of contact both past and future.

 

50.        The attack on the petitioners' approach to contact does not appear to be a matter which was canvassed at proof. I did not understand there to be any suggestion that the cessation of contact in the late summer of 2010 did not relate firstly to negative aspects of contact as regards C.C. and secondly the upcoming proof. I understood there to be a measure of agreement that this was the de facto situation and that the parties had in effect agreed that contact would not take place whilst the proof was ongoing.

 

51.        That contact has not taken place since proof is clearly a matter for the children's hearing to which I have already referred. The concerns expressed by Dr Cairns relating to contact were accepted by the sheriff. The history of contact between C.C. and the respondents forms a significant part of the sheriff's findings in fact and reasoning. (See Findings in Fact 21 - 28). According to the note much evidence was led on contact in its various forms. This is not surprising given that the respondents and C.C. have never lived together in family in the conventional sense. Their "family life" has been limited to contact either together when they were a couple or separately at other times.

 

52.        I accept that the terms of the first full paragraph on page 20 of the sheriff's note are inspecific with regard to the first respondent. It is strangely worded and the reference to "now" on the same page can only refer to the band of time since the date of proof up until the issue of the judgment which spans more than a year. However, given what is known of the procedure and the contact the sheriff's reference to "now" is uncertain but most likely to be the period following Dr Valerie Cairns report and evidence. The sheriff's decision does not simply proceed on the lack of contact and therefore a lack of a bond between C.C. and the first respondent but on the expert's opinion as to the factors relating to contact which appeared to be having a detrimental effect on the child.

 

53.        The sheriff's reasoning in the note is vague and inspecific however the issues relating to contact form an important part of the decision and the findings in fact. The findings in fact of course are unchallenged in most and all material respects and therefore the criticism of the sheriff's reasoning in her note should not be determinative of this appeal. Nor do these criticisms entirely undermine the sheriff's findings and decision.

 

54.        Similarly, the first respondent's attack on the petitioners' arrangements for contact or rather lack of arrangements cannot undermine the sheriff's decision in this permanence application. The procedures and decisions of the children's hearing, who regulate such matters, when there is a supervision requirement remain themselves open to review.

 

55.        The first respondent has a further argument that the petitioners and then the sheriff respectively infringe and overlook her rights under Article 8 of the ECHR. Mr Murray argues that the first respondent has a "civil right" to contact with C.C. in terms of Article 8 of the ECHR. Termination of contact on the part of the petitioners infringes that right and is unlawful. I was referred to Scott v UK 2000 Fam LR 102; Johansen v Norway (1996) 23 EHRR 33. I was not specifically addressed on these authorities. Mr Murray suggested that unlawful prevention of contact could be construed as contrary to the best interests to the child and therefore the sheriff would be both wrong and unjustified in relying on the lack of contact since July 2010 in informing her decision.

 

56.        Furthermore, the sheriff's order that contact be restricted to indirect contact in the event of the adoption order being granted was likewise unjustified. The first respondent criticised the sheriff for an inconsistent approach to the analysis of contact. I was referred to Finding in Fact 28. I was referred to the single positive comment in this finding being the sentence:-

"there was some indication of enjoyment by the child of contact but it was inconsistent.".

Clearly this was but one aspect of the findings in fact relating to contact and the sheriff, of course, had to exercise her discretion in reaching her decision as to how the various aspects of contact weighed up against the overall consideration of the child's welfare. She clearly came to the view that the contra-indicators which included the child's reaction significantly outweighed the positive factors. It is clear to me that contact is the crucial and important aspect to this case. As I have already stated contact delineates what has been "family life" for C.C. and her parents and the assessment of contact is central to the sheriff's decision.

 

57.        The first respondent's argument relating to Article 8 raises two important points. Firstly, the Article 8 rights and privilege are not absolute and require a careful balancing of other rights and of course consideration of what proportionality requires in the context of family life. European and International Law recognises the paramountcy and indeed the supremacy of the child's welfare. As Lord Reed pointed out in ANS:-

"37......It is also in accordance with international law that the welfare of the child should be the paramount consideration. That appears, for example, from Article 21 of the United Nations Convention on the Rights of Child:

"states parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration". It is also reflected in the preamble to the European Convention on the Adoption of Children (Revised 2008) ("recognising that the best interests of the child shall be of paramount consideration"). The same principle is also implicit in Article 8 of the European Convention on Human Rights, as the European Court has made clear on many occasions. In the recent adoption case of Pontes v Portugal (application No 19554/09) (unreported) given 10 April 2012, for example, the court stated (para 94):

"La Cour le repete avec force, dans les affaires de ce type, l'interêt de l'enfant doit passer avant toute autré consideration.""

 

It appears to me that the sheriff in reaching her decision and evaluating the evidence on contact had regard to that principle (the Welfare Principle). Accordingly, for the reasons I have given the ground of appeal stated by the first respondent at 2.1 and 2.2 in the grounds of appeal fails.

 

58.        The second important point which arises from this ground of appeal to which I will refer in more detail later is the criticism of whether the sheriff addressed at all or adequately addressed the proportionality test and the test set out in sections 83 and 84 of the 2007 Act in accordance with the jurisprudence relating to Article 8 of the European Convention of Human Rights as presented to her in submission. That indeed is a separate ground of appeal argued in effect by both respondents.

 

Second Respondent's First Ground of Appeal - The Sheriff's Failure to make Findings in Fact on Undisputed Evidence relating to His Drug Use

59.        Mr Aitken referred me to the transcript of evidence days 1 and 6 in particular the evidence given by Yvonne McLay on day 1 and the second respondent's evidence on day 6. Mr Aitken's submissions with regard to that evidence which deals with his client's drug use was effectively conceded by counsel for the petitioners. She did not seek to dispute that the sheriff had failed to take account of that evidence relating to his drug use. She did not concede, however, that alcohol ceased to be a problem for B. despite the terms of that part of the transcript from day 6 (page 74) to which I was referred. According to counsel for the petitioner the sheriff's interjection did not reflect the petitioner's position.

 

60.        This ground of appeal is in effect in two parts. Firstly, it was Mr Aitken's submission that the findings in fact should reflect that evidence (the undisputed evidence) and that the sheriff's failure to have regard to all the evidence before her means that the sheriff has failed to have proper and adequate regard to the most up to date circumstances of the second respondent as at the time of proof. She should have adopted that information in the form of findings in fact as she required to analyse the second respondent's circumstances in order to address the test contained in section 84(5)(c) of the Act. That test being - reading short - "would residence with the second respondent be or would it likely be seriously detrimental to C.C.'s welfare?"

 

61.           In these circumstances it would be appropriate to make a supplementary finding by making an addition to Finding in Fact 31 in the following terms:-

"The second respondent had been referred by his GP to the Community Drug Problem Service (CDPS) in May 2007. By May 2010 he was discharged from attending CDPS at which time he tested positive for prescribed diazepam only."

 

Both Respondents - Did the Sheriff Address the Law and Other Requisite Matters in Her Judgment

62.           I will turn now to deal with the grounds of appeal which were argued by both respondents and are criticisms of the sheriff's judgment.

·         The sheriff's failure to deal adequately with the assessment and evaluation of witnesses and their evidence and her failure to give a reasoned decision.

 

·         The sheriff's failure to address what I may call the "seriously detrimental" test set out in section 84(5)(c) and the test set out in section 83(2)(c) of the 2007 Act.

 

·         The sheriff's failure to apply the law to the facts as she found them in particular she failed to deal with the authorities and submissions made and specifically failed to address the "necessity test" when dealing with an application which had as its object interference with respect for the respondents' family life. (Article 8 of ECHR)

 

63.        Counsel for the petitioners did not seek to suggest that the sheriff had dealt explicitly with the "seriously detrimental" test or the Article 8 jurisprudence and the need to find an imperative for such an intervention. Ms Malcolm did not, however, concede that this was fatal to the sheriff's decision. Her assessment of witnesses was brief and inadequate but not absent; the "seriously detrimental" test was capable of being met by inferences drawn from the sheriff's findings in fact. She did not consider that the defects in the judgment were fatal to the decision. In any event, she reminded me that the sheriff's findings in fact remain intact and that the respondents conceded that there was a basis in the evidence for all the findings. She argued that a re-hearing would cause more unnecessary delay and expense and that there was very little by way of developments to give evidence about. Any re-hearing, however, would have to revisit all of the evidence, including the historic evidence. She urged me to refuse the appeal and in the event that I was minded to accept that some grounds of appeal had merit that there should be a reconsideration of the case based on the sheriff's findings in fact.

 

64.        Both respondents moved for dismissal which failing a re-hearing of evidence. It was the contention of both respondents that the failure on the part of the sheriff to address the evidence properly and to deal with the Article 8 and the "seriously detrimental" test (and also the section 83(3)(c) test) were matters of such importance that the appeal should be allowed and the application dismissed.

 

65.        I have given this matter much anxious consideration. Without doubt the sheriff's assessment of witnesses and evaluation of their evidence is brief and indeed perfunctory. She states at page 19 of her note -

"I had the benefit of written submissions from all parties as well as proposed findings in fact. As is clear from my findings in fact I preferred the petitioners' evidence in all respects over that led by either respondent."

 

The crucial questions for the sheriff turned on the child's relationship with the respondents and their own lives - their family life. Thus the question of contact, in circumstances where the child has never been looked after by the parents, is the primary barometer of that "family life" and that life ebbs and flows as the respondents' relationship and lifestyle alters. A significant part of the sheriff's findings and her note relate to that contact and the witnesses who spoke about it at proof. Again, at page 19 the sheriff states:-

"much evidence was led on the contact which took place between C. and each respondent either separately or together when C. was with Dorothy Scott, her foster carer, until contact ceased in July 2010. Clearly the quality of contact varied but at best was not of great quality. Dorothy Scott gave evidence, which I accepted, critical of the parents about C's. upset and distress. Evidence of lack of much of a bond came from those who observed contact."

 

66.        In the following paragraph the sheriff deals with the opinion evidence led from the expert witness, Dr Valerie Cairns. I should add that she had observed contact and accordingly, her evidence was not solely opinion evidence. The sheriff goes on in the following paragraph to state:-

"However, of greater significance regarding contact was the evidence given by Dr Valerie Cairns a most impressive witness suitably qualified. She had difficulty in getting the co-operation of the parents for reasons she gave which I accept. I also accepted that she was not an "expert for hire" as suggested by Mr Aitken for the second respondent but an expert, well aware of her duty to the court whose opinion could and should be relied upon."

 

67.        Clearly it is a fundamental rule that parties to proceedings in court must know the reasons for the judge or sheriff's decision. Decisions must be supported by adequate reasons. Our rules require sheriffs to make findings in fact and findings in law which should be included in the interlocutor. A note setting out the reasons for the decision is to be appended to that interlocutor. The findings in fact should be stated in sufficient detail to explain and justify the decision. In this case there are findings in fact which are capable of supporting the decision and in these circumstances it is my view that the absence of more detailed evaluation and assessment of the witnesses is not in itself fatal to the decision and does not undermine the decision. There is, however, absent from the sheriff's note that important nexis or reasoning which would link the findings in fact with the findings in fact and law.

 

68.        The sheriff in her note sets out the statutory framework from page 16 to 18. Once Mr Murray withdrew his criticism that the sheriff applied the wrong welfare test when dealing with section 84(4) there is then no suggestion that the statutory framework as set out by the sheriff is anything but correct. What is absent is the sheriff's reasoning and the manner in which she addressed the tests set out in the legislation. The sheriff in her note deals with it thus at page 20:

"In all the circumstances on the evidence I heard and partly refer to I am satisfied that the statutory tests as set out have been met and that the permanence order with authority to adopt should be granted all as set out in the interlocutor above and that indirect contact between the respondents and C. should operate as described."

 

69.        The lack of further analysis and reasoning would suggest that the grounds of appeal as set out on behalf of the first respondent, (particularly at paragraph 1.21 to 1.38 of submissions and chapter 3 of submissions) have merit together with the grounds of appeal argued on behalf of the second respondent.

 

70.        The crucial matter however for me - what is the consequence of the shortcomings in the sheriff's decision? The respondents urged dismissal of the application which failing a re-hearing. However, although the first named respondent made some criticism of the sheriff's finding in fact 33 it was accepted by all that there was a basis in the evidence for all of the findings in fact and therefore the findings in fact are in essence intact and unchallenged. I was referred to the LRC v A. 1992 SLT 858 and was urged to adopt the approach of the Inner House in that case which, it was argued, had certain similarities with the current application. In LRC v A the court allowed the appeals and dismissed the applications. The Inner House did so due to the sheriff having wrongly applied the test under the previous legislation in determining whether one or other of the grounds mentioned in section 16(2) of the 1978 Act had been established and then whether an order dispensing with the parents' agreement ought to be made. However, it is necessary to distinguish the reasons for the appeal being allowed in LRC v A. In that case it was held that there were insufficient findings to support the sheriff's decision which the sheriff had made based not only on the facts which he found but also on the demeanour and the attributes of the parents and their families. These were matters which the appeal court could not assess. In essence the Inner House held that the omission from the sheriff's note of detailed discussion of all the relevant circumstances was not fatal to his decision but it was significant that he had not expressly addressed the reasonableness of the parents' refusal to agree to adoption. Lord President Hope deals with the matter in the following way at page 865F onwards:-

"We are conscious of the fact that it is not appropriate in proceedings of this kind, where the welfare of the children is of such importance, to adopt too technical a view in our examination of the reasons given in the sheriff's note. On the other hand we must not lose sight of the fact that the question is also of importance from the parents' point of view, since a decision that a child is to be freed for adoption, once taken, is irrevocable. It follows that sound reasons must exist for the taking of this important step. In these circumstances it is not enough that the sheriff should have, as he seems to have done, merely paid lip service to the questions which had to be addressed. We are not disposed to criticise him as we were invited to do for not having asked himself in terms the question whether the parents' refusal to consent was within a band of decisions with which the court should not interfere. This is not a concept which is easy to grasp in cases where the question is whether or not, in all the circumstances, it was unreasonable for a parent to withhold consent. Nor are we inclined to accept the suggestion that the sheriff failed to address himself to all the relevant circumstances simply because he does not discuss each of them in detail in his note. But it is a significant defect in his explanation for his decision that nowhere does he address himself to the question whether a reasonable parent in all the circumstances would have withheld agreement to the making of an adoption order......The penultimate paragraph of the note contains no more than a bare assertion, without reasons, that the agreement was being withheld unreasonably and should be dispensed with."

 

71.        Lord President Hope then goes on to deal with what the appeal court would have done.

"In these circumstances, since the reasons given are so unsatisfactory, we would have wished to examine the facts for ourselves in order to see whether the decision which the sheriff took could be supported."

 

The Lord President goes on to give reasons why that is not possible due to the sheriff having based his decision on matters which were extraneous to his findings in fact. Nevertheless the appeal court is clear in approving the proposition that an appeal court may look at the facts anew in order to determine whether the sheriff took the correct decision. I adopt that proposition and given that it is my view that the justifiable criticisms contained in the grounds of appeal are not fatal to the sheriff's decision it follows that it would be proper for me to examine the sheriff's findings in fact and apply to these findings in fact the law as set out in the 2007 Act and the European jurisprudence. I consider that to be the proper approach for a number of reasons. Firstly, a significant feature of this case is delay, delay occasioned by a number of factors. I have dealt with the comments of the Supreme Court on the question of delay and indeed the comments of Lord President Hope in LRC v A an appeal in which delay also featured. It is, in my view, necessary and proper to adopt a purposeful and pragmatic approach and examine whether the findings made by the sheriff can support the decision she made. This I do to ensure that this matter can still be dealt with expeditiously without necessarily inflicting further delay and uncertainty on the child and those involved in the child's life. Another reason for taking this approach is the apparent lack of significant further evidence of fact. I say so as all parties to these proceedings had an opportunity to lead evidence exactly a year ago when further proof had been allowed. I consider this to be a matter of significance. It was not suggested that there had been any significant developments which would constitute a material change in circumstances.

 

72.        Against that background I now turn to look at the statutory requirements under the 2007 Act.

 

 

Analysis of the Statutory Framework and Findings in Fact

73.        The legislative framework comprises the 2007 Act and the Children (Scotland) Act 1995 read alongside the European Convention on the Protection of Human Rights and Fundamental Freedoms Article 8.

 

74.        Article 8 stipulates:-

"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 wellbeing 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."

 

75.        The making of permanence orders in respect of a child is regulated by Part 2 of the Adoption of Children in Scotland Act 2007. Sections, 80, 81 and 82 of that Act provide that a court can make a permanence order in respect of a child and provide for the vesting of certain parental responsibilities and rights in the local authority and other persons. The relevant sections have to be read therefore alongside sections 1 and 2 of the 1995 Act.

 

76.        Before the court may make a permanence order the court must be satisfied as to the conditions and considerations set out in section 84. Section 84(1) has no application. However, the remaining provisions are essential to the court's approach to this matter. Section 84 sub-section 3 onwards must be addressed:-

"(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."

 

77.        Sub-sections 3, 4 and 5 are very important. The Inner House have looked at this matter in the case of W v Aberdeenshire Council [2012] CSIH 37. In that case the appeal court did not accept that there was any hierarchy among the sub-sections of 84 but rather that they impose separate requirements. In my view, sub-section 4 is a constant consideration for any court or decision maker who must have overall regard to the need to safeguard and promote the welfare of the child throughout childhood as a paramount consideration. This could be said to be the guiding principle. Sub-section 5(a) has no application in the present case and sub-section 5(b)(i) and (ii) has limited application. There was no specific finding and no submission with regard to sub-section (ii) sub-section (iii).

 

78.        The essential matter that the sheriff required to be satisfied about is the test set out in section 84(5)(c) and (ii).

 

79.           The key words or phrases being "the child's residence" and "seriously detrimental to the welfare of the child". Section 84(5)(c) appears to make a reference to section 2(1)(a) of the 1995 Act. Plainly in that context residence would mean the same as it does in section 2(1)(a) that is to have the child living with him. Accordingly, the proper construction of this sub-section would appear to be that the living with or residence is the matter which is or is likely to be "seriously detrimental" to the welfare of the child..I was not referred to any definition of "seriously detrimental" other than the test being set in the present tense with the phrase "likely to be" referring to the prospective test or future. It is reasonable to assume that as "detrimental" means something damaging or harmful, serious will qualify that by aggravating the damage.

 

80.        Accordingly, I must look to the facts as found by the sheriff to decide whether there is a proper basis on which the sheriff could be satisfied as to this requirement. Firstly, the facts are as up to date as they can be with the addition of the supplementary finding in respect of B..

 

81.        The critical finding in respect of both respondents in the context of a child who is now closer to the age of five is Finding in Fact 30.

30. The first and second respondents have never cared for the child. They have no meaningful bond with her, and she has no bond with them."

 

82.        The findings in fact make clear and indeed this is a matter of agreement that the child C.C. was placed on the child protection register pre-birth due to risk of physical neglect and a second category of physical injury. This is due to pre-existing and serious concerns relating to both respondents' abuse of drugs and their lifestyle. C.C. has never lived with either of the respondents and their exercise of parental rights and responsibilities has been restricted to contact which ceased, in effect, in July 2010. The first respondent's eldest daughter, S.C. who is now a teenager is looked after by the first respondent's mother. The first respondent's and indeed the second respondent's failure to engage with the rehabilitation plan in the crucial months after C.C.'s birth have led both respondents to become more distant from C.C. and effectively terminated the process of attempting to secure rehabilitation with C.C.. Although the section 85(5)(c)(ii) test is a current and prospective one the sheriff and the appellate court can only proceed on the basis of the evidence led and much of that deals with what has happened in the past. That is a matter of fact no evidence having been led as to the current circumstances of either respondent in November 2011. The findings in fact confirm that the attempts at rehabilitation singularly failed. There is therefore no evidence of either respondent being able to care for C.C. and I allow for maturity in years since the child was born and the improvements with regard to the second respondent's drug problems. This situation is further compounded by the clear and agreed facts relating to the history of violence and domestic abuse and domestic disorder perpetrated by the second named respondent. The significance of this cannot be underestimated. It is a very significant factor in leading me to the view that living with both respondents or either respondent would be "seriously detrimental" to a child who has lived all her life with foster carers and who is settled and well-adjusted in their care. (Finding in Fact 34). The child has no bond with the second respondent. I do not find it difficult to conclude that to have C.C. living with B. given his own propensity for violence and disorder towards his partners and the mothers of his children would be "seriously detrimental" before I turn to deal with the second respondent's lifestyle; lack of parenting skills and general aggressive character. The second respondent served a sentence of imprisonment for an assault on C. perpetrated during the course of these proceedings in 2010.

 

83.        The first respondent's relationship with the second named respondent is also a cause of difficulty for her in the application of this test. Finding in Fact 32 deals with the first respondent - her failure to engage with professionals relating to the child's care and rehabilitation to her care but importantly the sheriff deals with the first respondent repeatedly returning to the violent and unstable relationship with the second respondent. These factors are important in addressing this test. The clear inference from this finding is that the second respondent would be likely to put her own needs before that of the child leading to concerns that the child would not be safe and would be exposed to violence in the domestic setting.

 

84.        The test set out in section 84(5)(c)(ii) refers to "the child's residence" and on the reasonable assumption that "residence" has links with the Children (Scotland) Act 1995 sections 1 and 2 then the court must also have regard to the statutory language of the sections of the 1995 Act which deal with court orders relating to those rights and responsibilities. Section 11 requires the court to have regard to the need to protect the child from abuse; the risk of abuse and the effect of abuse on the child; the ability of a person who has carried out abuse to care for or otherwise meet the needs of the child. Section 11 (7A and (7B) and (7C) of the 1995 Act have relevance in interpreting the test set out in section 83(50(c)(ii). Furthermore, Dr Cairns describes direct contact between C.C. and the respondents as "detrimental" to C.C.'s psychological wellbeing. Her report is incorporated into Finding in Fact 27. It would be reasonable to infer that residence with the respondents would aggravate that detriment and be seriously detrimental to C.C.'s welfare.

 

85.        The couple's new baby is a factor which was drawn to the court's attention last year. There is no evidence or information about that family life from which I can derive any assistance.

 

86.        Against the findings in fact as a whole and the findings I have specifically referred to I conclude that the terms of section 85(5)(c)(ii) are satisfied and that condition is met. To conclude otherwise would, in my view, indulge in reckless speculation as regards a child of four years and almost nine months who has never lived with either respondent and who has no bond with them.

 

87.           The next stage is to consider the terms of sub-section 5(b)(ii) and (iii). There is nothing in the findings in fact with regard to C.C.'s religious persuasion, cultural background or racial origin which, in my view, would be relevant to the decision relating to whether a permanence order should or should not be made. Section 84, sub-section 3 asks whether it would be better for C.C. that an order be made than it should not be made. Clearly C.C. is at a very important stage in her life. She must soon be contemplating the start of start school. She has been in foster care all her life and she has moved once during that period. She requires certainty and stability. The need to safeguard and promote the welfare of the child throughout childhood is the paramount consideration in deciding whether to make a permanence order. The test under section 84(4) is of course throughout childhood it is worthy of note that the care proceedings and permanence proceedings have taken up virtually a third of that childhood. That is a significant factor and in my view underscores the need for safety and stability. Further, in respect of the matters set out in section 84(5)(b)(ii) and section 14(4) I have had regard to the terms of the report by the reporting officer and curator ad litem. Accordingly, having regard to the terms of section 84(4) along with the other sub-sections to which I have referred the facts as stated by the sheriff support the making of a permanence order.

 

An Order Granting Authority for the Child C.C. to be Adopted and to Dispense with Consent of C. & B. the Parents - section 83 of the 2007 act

88.        The conditions for the making of such an order are set out in section 83 of the 2007 Act. Section 83 corresponds with the provisions of section 31 of the Act which provision was central to the decision of the Supreme Court in ANS & Another v M.L. [2012] UK SC 30. Section 31 along with sections 14 and 28 govern adoption petitions whereas the present proceedings are concerned with a permanence order with authority to adopt. Accordingly, section 83 applies, however, the provisions are identical to section 31. There seems no doubt that section 14 is important and it is necessary to have regard to that section as it is concerned with considerations relevant to the powers sought. The court must have regard to sub-sections 2 to 4 in coming to a decision regarding adoption. The relevant provisions of section 14 are as follows:-

Sub-section:-

(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 linguistic background; and

 

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

 

89.        Thus the paramount consideration is the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration. That this is a different test from the test in terms of section 84(4) which is what is referred to as the "childhood test". Superimposed on the interpretation of the 2007 Act is the requirement to have regard to the European Convention on Human Rights and in particular Article 8 to which I have already referred. The decision of the Supreme Court in ANS v M.L. is now available to me. It is a comprehensive analysis of section 31 and the English and European jurisprudence. Section 83(2)(d) is in identical terms to section 31(3)(d). Lord Reed has observed that the "default position" is that absent parental consent, an adoption order cannot be made. Section 31(2)(b) however, confers a power exercised but only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3)." The equivalent provision is section 83(1)(c)(ii) and the grounds for dispensing with consent are set out in section 83(2). It appears that the sheriff in this case proceeded to dispense with consent on the grounds set out in section 83(2)(c) by virtue of the sheriff's Finding Fact and Law 4. Accordingly, the sheriff did not require to consider and analyse the meaning of section 83(2)(d) which was the equivalent provision to that which concerned the Supreme Court in ANS v M.L. Lest it be necessary to look at that provision Lord Reed states at paragraph 32:

"32. Thirdly, section 31(3)(d) empowers the court to dispense with the parents' consent only if satisfied that the welfare of the child "requires" it. The word "requires" imposes a high test. That is so as a matter of ordinary English: to say that something is required means that it is not merely desirable or reasonable but that it is necessary. That ordinary meaning is appropriate in the context of section 31(3)(d), for several reasons."

 

He then goes on to name three reasons firstly, that the making of an adoption order against the wishes of the parent is a very serious intervention by the state in family relationships and it follows that the court will not lightly authorise such intervention. Secondly, there is a duty on the court to interpret the act in the context of convention rights and not to act in a way which is incompatible with those rights. This could be called the proportionality test. In the course of so doing Lord Reed refers to the English Court of Appeal decision in Re P repeating that in the assessment of the proportionality the court has to bear in mind that adoption without parental consent is the most extreme interference with family life. And thirdly, the act is to be construed in accordance with the presumption that it is not intended to place the UK in breach of its international obligations. Thus Lord Reed has enumerated the trail of essential considerations necessity, proportionality and acknowledging that the welfare of the child should be the paramount consideration in keeping with the United Nations Convention on the rights of the child.

 

90.        In Mr Aitken's submission supported by Mr Murray in his submission it has said that the drastic measure of adoption can only be justified in exceptional circumstances by the paramount or overriding requirement of the child's best interests. His submission that there must be an "imperative" need to intervene resonates with Lord Reed's requirement of necessity. However, the Supreme Court did not endorse that exceptional circumstances were required. The court must not sanction or interfere with family life unless it is satisfied that it is both necessary and proportionate to do so and that there is no other form of order which would achieve the aim of promoting the welfare of the child throughout its life.

 

91.        ANS v M.L. underlines that the necessity test requires to be satisfied before a court can find grounds to dispense with the parents' consent either in terms of section 83(2)(d) or 31(3)(d).

 

92.        It is clear that the conditions set out in section 83(1)(a) and (b) are met by virtue of the permanence application and the order requested including a provision granting authority to adopt. The sheriff's Finding in Fact 34 satisfies section 83(1)(b). Given that neither of the respondents consent to adoption it is necessary to consider whether consent can been dispensed with. The sheriff proceeded to deal with the issues set out in section 83(2)(c) and (d) and sub-section 3 . I should state at this stage that the sheriff deals with section 83(3)(b) however sub-section (d) is the provision which would apply if neither of the other sub-sections do apply. That is the welfare of the child otherwise requiring consent to be dispensed.

 

93.        Section 83(3)(b) provides:-

"This sub-section 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,

(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.

 

94.        The sheriff in this case has expressed her opinion in Finding in Fact and Law 4 and it is necessary to look for the findings in fact upon which the opinion is based. The sheriff's findings in fact to which I have referred when dealing with the test in section 84(5)(c)(ii) are essentially the same as would apply when addressing the requirement in section 83(3). The test relates to the parents being unable satisfactorily to discharge parental responsibilities or exercise parental rights and that the inability is likely to continue. It appears to me that similar considerations apply in addressing both tests albeit it appears that the test set out as the "seriously detrimental" test in section 81 is possibly a more stringent test. Having been satisfied that that test is met it follows that the section 83 subsection (3) test must be addressed but it is not difficult to see that the same facts and circumstances meet both tests. The de quo of this case is Finding in Fact 30 which I will set out:-

"30. The first and second respondents have never cared for the child. They have no meaningful bond with her, and she has no bond with them."

 

95.        The remaining findings in fact supply more detail which amplifies and explains how the child has been cared for independently of her parents since birth and the manner in which that situation has developed. The sheriff has considered the provisions of section 14 and she capsulates that in the final Finding in Fact 34. albeit brief it sufficiently deals with the main provisions of section 14 of the 2007 Act. No finding is available to deal with section 14(4)(c). This may not prove to be difficult. The consideration of the child's religious persuasion, racial origin and cultural linguist background did not feature in the appeal. There was no suggestion that this was a matter which should weigh significantly with the court although clearly it is a matter which the court should have regard. The absence of comment on this matter is not determinative and is merely a factor to be taken into account of along with other evidence and findings in this case. In any event I have the report of the reporter and curator ad litem to which I have referred.

 

96.        Stability in the child's life is necessary and that is accepted by the sheriff and is a common thread in cases involving child care.

 

97.        Thus the sheriff having considered the important steps taken to promote rehabilitation with the respondents and maintaining contact with the parents it is necessary to look at whether the court balanced the continuation of these family ties with the overriding consideration of what is in the child's best interests after rehabilitation had failed. Standing the sheriff's findings in fact on contact and the lack of benefit to the child from contact it is necessary to look at how the child might be allowed to develop and thrive in a stable and secure environment. Having decided that the maintenance of family ties would be "seriously detrimental" to the child's welfare in the sense of residence it is necessary for the court to look at where the child's best interests lay. The important factors related to the age of the child, the need for stability and security at a stage in the child's life when she was about to enter the education system; the need to be part of a family points clearly to adoption as being the best way of safeguarding and promoting the welfare of C.C. throughout her life. This must be the overriding and paramount consideration in terms of section 14. In other words it is necessary that the continuing family ties be sacrificed for the child's welfare. It appears clear to me from the sheriff's findings in fact that C.C. deserves the opportunity to have stability and develop with parents who are committed to and are capable of caring for her throughout the rest of her life.

 

98.        The remaining issue of contact falls to be dealt with. The sheriff has made significant findings in fact on the matter of contact based primarily on Dr Cairn's report and assessment together with the evidence of witnesses who took part in contact. She takes the view that ongoing direct contact between the parents and the child is not in the best interests of the child. The petitioners do not seek to extinguish the respondents' right of contact but rather to limit it to indirect contact and that was accepted by the sheriff on the evidence she heard. The sheriff has provided adequate findings in fact to support that view. The statutory provision dealing with contact is section 82(1)(e). This confers on the court the power to specify arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child. Accordingly, the welfare test requires to be engaged. The sheriff made an order regulating contact and that is supported by Finding in Fact 28 crystallising in Finding in Fact and Law 5. The finding supports necessity in making the order that the parents' right to maintain personal relations with C.C. is interfered with.

 

99.        Accordingly, having examined the facts and applied the appropriate provisions of the 2007 Act and the Children (Scotland) Act 1995 I have come to the view that the decision which the sheriff took can be supported on the basis of the facts as she found them following proof. It is important to recognise that the focus of this significant exercise has been the child C.C.. She is rapidly growing up. Very soon she will be five having spent the first half of her life in the care of Dot Scott, her foster mother and the remaining half with her current carers, who are the prospective adoptive couple. The situation is equally difficult for the respondents who have not been able to discharge their parental role. I hope that a view is now taken that this is the time to support C.C. in her need for stability and certainty.

(signed) Mhairi M Stephen