Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

AD 5/13

JUDGMENT OF SHERIFF KENNETH A ROSS

in

Application for the Adoption of the Child L

 

Petitioners: Mrs Guthrie of John Henderson & Sons, Solicitors, Dumfries

BM (Natural Mother): Miss McMurchie of Primrose & Gordon, Solicitors, Dumfries

CR (Natural father): Mr Hann of Hann & Co, Solicitors, Annan

 

DUMFRIES 12 August 2013

The Sheriff, having resumed consideration of the application,

(1)   Refuses the motion of BM (the natural mother of the child) and CR (the natural father of the child) to oppose the craves of the application;

(2)   Recalls the appointment of Andrew Maxwell, Solicitor, as Reporting Officer and Curator ad litem to the child L; Appoints Murray Bolling, Solicitor, Harper, Robertson and Shannon, 100 High Street, Annan DG12 6 EH as Reporting Officer and Curator ad litem to the child for the purpose of investigating and reporting to the Court within four weeks;

(3)   Directs the Reporting Officer and Curator ad litem to investigate and report on the request by the natural parents of L that the Adoption Order should contain terms or conditions that each should be permitted direct face-to-face contact with the child to take place at the same time as contact with the three siblings of the child every three months for a period of not less than one hour or, alternatively, indirect contact by being allowed to write to the child, care of the Social Work Department of Dumfries and Galloway Council each year in March and September; that the applicants be ordered to collect such communications from the Social Work Department each year in March and September; that the applicants be ordained to provide each of the natural parents with full and quality information about the welfare and development of the child on at least two occasions each year in February and August and, additionally, to provide each of the natural parents with a photograph (Passport or otherwise) together with a copy of the child's school/nursery report (redacted insofar as the identity of the school, name of the teacher or any such other information as may be deemed appropriate) each year in August;

(4)   In terms of section 17(2)(b) of the Adoption and Children (Scotland) Act 2007, Directs Dumfries and Galloway Council to investigate and report and to lodge a supplementary report on the following within four weeks:

(i)             the request by the natural parents of L that the Adoption Order should contain terms or conditions that each should be permitted direct face-to-face contact with the child to take place at the same time as contact with the three siblings of the child every three months for a period of not less than one hour or, alternatively, indirect contact by being allowed to write to the child, care of the Social Work Department of Dumfries and Galloway Council each year in March and September; that the applicants be ordered to collect such communications from the Social Work Department each year in March and September; that the applicants be ordained to provide each of the natural parents with full and quality information about the welfare and development of the child on at least two occasions each year in February and August and, additionally, to provide each of the natural parents with a photograph (Passport or otherwise) together with a copy of the child's school/nursery report (redacted insofar as the identity of the school name of the teacher or any such other information as may be deemed appropriate) each year in August;

(ii)            the crave in the application seeking to change the forename of the child L;

(5)   Directs Dumfries and Galloway Council to lodge, in the application process, a copy of the judgment dated 27 December 2012 in the permanence order proceedings in relation to the child;

(6)   Fixes a diet of proof for 5 November 2013 at 10 a.m. within the Sheriff Courthouse, Buccleuch Street, Dumfries; and

(7)   Fixes a pre-proof hearing for 2 October 2013 at 9.30 a.m. within the Sheriff Courthouse, Buccleuch Street, Dumfries

 

 

 

 

 

 

Note:

Introduction

[1]   This is an adoption application in relation to a male child L. It is one of four similar applications which relate to four siblings, two boys and two girls. There are two sets of applicants - one couple who have applied to adopt both boys and another couple who have applied to adopt both girls. The applications follow on from four permanence orders which I granted on 27 December 2012. Each order granted authority for the child to be adopted. Each also specified arrangements for contact between the child and the parents of the child. To give context to the present decision I am arranging to publish one of the judgments which I issued when granting the permanence orders. The issues were identical in each process. I did not do so at the time because each of the orders was appealed but that appeal has now been abandoned.

[2]   When the adoption applications were lodged I was on leave. An initial interlocutor was granted in which a curator was appointed and a preliminary hearing was fixed. Intimation on the parents of the children was dispensed with. Correspondence between the solicitors acting for the parents and the sheriff clerk followed and when that was placed before me, ex proprio motu, I ordered intimation of the applications and the date of the preliminary hearing to the parents of the children. As a result of that, solicitors for both parents attended at the preliminary hearing. Those acting for the father of the children ("CR") had lodged a form of response indicating an intention to oppose the applications because there was no provision in the applications for the regulation of contact with the children and in relation to also the suitability of the applicants as adoptive parents. The solicitor who appeared for the mother ("BM") indicated an intention to lodge a similar response objecting to the applications on the same basis.

[3]   At the preliminary hearing there was some discussion about the further procedure which should be followed. It was clear that both parents wished to oppose the applications and to seek orders for contact which was more extensive than that allowed in the permanence orders. The solicitor who appeared for the applicants questioned the competence of the parents opposing the applications and doubted if a proof would be necessary in relation to the issue of contact. She conceded however that the parents were entitled to be heard on the issue of contact. So that I could be more fully addressed on these issues I continued the preliminary hearing

[4]   At the continued preliminary hearing a form of response for BM had been lodged. The position of the two parents differed. BM indicated that she wished to have the opportunity to oppose the applications on the basis that the applicants were not suitable as adoptive parents and that it would not be in the interests of the children that the orders be granted. I was told that opposition to the applications related primarily to the attitude which it was said both sets of applicants had adopted to the question of future contact. That raised a question about their suitability. CR did not oppose the adoptions but wished more extensive contact than had been granted in the permanence order. Both sought a proof on these matters, maintaining that, on the issue of contact, it would be necessary to lead "expert evidence". The solicitor for the applicants maintained her position that opposition to the applications and the suitability of the applicants was incompetent. She submitted that a proof was unnecessary. I heard argument on these matters.

[5]   The argument advanced by Mr Hann, who appeared for BM, was set out in a full and helpful written submission and I had the benefit of a helpful written submission by Mrs Guthrie, who appeared for the applicants. Miss McMurchie, who appeared for CR, was content to adopt Mr Hann's arguments.

Intimation to the Natural Parents

[6]   By way of preliminary I should explain what had happened in relation to intimation of the application because Mr Hann's first argument related to the competence of what I had done and the scope of objection and participation in the adoption processes which the form of intimation permitted. The Adoption and Children (Scotland) Act 2007 ("the 2007 Act") is silent on the question of intimation of adoption applications. That is dealt with in the Sheriff Court Adoption Rules 2009 ("the 2009 Rules") found in the schedule to the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009. Rule 14 provides for intimation, whether by the applicant or (in a serial number case as the present applications are) by the sheriff clerk, to four categories of person set out in Rule 14(1)(b) as follows:

                                 i.         "every person who can be found and whose consent to the making of the order is required to be given or dispensed with under the 2007 Act; if no such person can be found, a relative of the child within the meaning of section 119(1) of the 2007 Act, unless the address of such a relative is not known to the applicant and cannot reasonably be ascertained;

                                ii.         every person who has consented to the making of the order under section 20 of the 2002 Act (and has not withdrawn the consent) unless the person has given a notice under subsection (4)(a) of that section which has effect; and

                              iii.         every person who, if leave were given under section 31(12) of the 2007 Act, would be entitled to oppose the making of the order;

                              iv.         every person who, if leave were given under section 31(12) of the 2007 Act, would be entitled to oppose the making of the order"

It was not suggested that either parent of the children fell into any of these categories. Their consent to the adoptions was not required. The permanence orders had dispensed with that in relation to the adoption of each child. None of the other three categories was relevant.

[7]   The basis of intimation was found in Rule 15 which is in the following terms:

"15. In any application for an adoption order or for any order under section 59 of the 2007 Act, the sheriff may at any time order intimation to be made in such terms as he considers appropriate on any person who in his opinion ought to be given notice of the application."

The permanence orders which I granted had extinguished all the parental responsibilities and rights of both parents in each of the children except for those specified in sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995 ("the 1995 Act"). These are the responsibilities and rights which relate to contact. Although the permanence orders had vested all other responsibilities and rights relating to the children in the applying local authority, rights of contact remained with the parents. In fact, the local authority had not sought the vesting of that responsibility or right in them or their extinction. Nor could they have done so unless, in terms of section 82(1)(b)(ii), the permanence order vested the section 2(1)(c) right of contact in a person other than the local authority. Section 82 does not permit the vesting of the section 2(1)(c) right of contact in the local authority. Nor does it permit that parental right to be extinguished unless it is vested in a person other than the local authority.

[8]   Section 82(1)(e) permits arrangements for contact "between the child and any other person" to be specified in a permanence order. I did that in the following terms:

"iii. Specifies that contact between the said L and BM and CR shall be restricted to indirect contact and:

a.     Allows each of BM and CR to write, care of [Dumfries and Galloway Council], to the said L twice each year in March and September;

b.     Orders [Dumfries and Galloway Council] to forward such written communications to the prospective adoptive parents of the said L and;

c.     Orders [Dumfries and Galloway Council] to provide each of BM and CR with written information about the welfare and development of the said L on at least two occasions each year including in March and September and, additionally, within seven days of the making of any application for the adoption of the said L;"

Any arrangements for contact with the children by the parents will end if the adoption orders are granted. That is because section 28(1) of the 2007 Act provides that an adoption order is an order vesting "the parental responsibilities and parental rights in relation to a child in the adopters or adopter". These will include the rights of contact found in sections 1(1)(c) and 2(1)(c) of the 1995 Act. Section 102(2) provides that "The permanence order ceases to have effect on the making of the adoption order". So the effect of the applications is to seek to remove any parental responsibilities and rights which remain vested in the parents; and to end the arrangements specified in the permanence order for the exercise of these rights and responsibilities. For that reason I felt that intimation of the applications on the parents was necessary. In fact, I had that necessity precisely in mind when I granted the permanence orders and included in the specification of contact that the local authority would provide the parents with written information about the welfare and development of the children within seven days of the making of any application for the adoption of the children. That was to ensure that they were aware that such applications had been made and could take such steps as they considered necessary even although, as has happened in the present cases, the prospective adopter sought to dispense with intimation on them.

[9]   The reason given in the applications for seeking to dispense with intimation is that permanence orders had been granted which also granted authority for the children to be adopted. That, in my view, is mistaken and ignores the rights which still vest in the parents and the judicial guidance which has been given (East Lothian Council, Petitioners 2012 FamLR 7, [2012] CSIH 3). I have to say that, in seeking to dispense with intimation of the adoption applications to the parents, the applicants run the risk of being seen as seeking ignoring the precautions which I had taken in the permanence order judgment to ensure that the natural parents were aware of the adoption applications and ignoring also the clear guidance given at a high judicial level about when such intimation will be appropriate.

[10]         The matter of intimation of adoption applications on parents with rights of contact was referred to in East Lothian Council, Petitioners where, in the Opinion of the Court, Lady Smith observed:

"[27] Then, under s.82(1)(b) , the court may also vest in a person other than the applicant local authority, for the appropriate period, such of the parental responsibilities listed in s.1(1) of the 1995 Act and such of the parental rights listed in s.2(1)(b) to (d) of the 1995 Act in relation to the child, as it considers appropriate. Thus, for instance, at the same time as giving the mandatory rights and responsibilities to a local authority, the court may confer contact rights on a parent. The parent does not, however, retain those rights beyond the life of the permanence order; their inclusion therein has no effect on any subsequent adoption order.

[28] Regarding the adoption process, an extract of any permanence order - including any provision relating to contact - is lodged with the court (see Sheriff Court Adoption Rules, r.8(3)(g) ; Rules of the Court of Session, r.67.15) and intimation to the natural parents may be ordered under rr.14(1)(f) or 15 of the Sheriff Court Adoption Rules if, in that process, the sheriff considers that they should be heard (see also Rules of the Court of Session, r.67.15 ). Whilst the sheriff thus has a discretion when it comes to intimation of the adoption application, it will be incumbent on the court to consider whether or not, having regard to the whole circumstances including the parents' Convention rights there requires to be such intimation ( Ghaidan v Godin-Mendoza, per Lord Rodger of Earlsferry at [2004] 2 A.C., pp.594-595, paras 106-107). Since the procedure involves the court being notified of any permanence order, if that order includes provision for contact between the child and a member of his natural family, we would expect the court to intimate the adoption application to any such family member, bearing in mind the art.8 rights involved. In any event, a parent whose parental responsibilities or rights have been extinguished on the making of an adoption order may apply to the court for an order for contact under s.11 of the 1995 Act, which was amended by s. 107 of the 2007 Act so as to confer the right to do so on such a parent."

[11]         I respectfully agree with the obiter view expressed by her Ladyship that, where a permanence order includes provision for contact with a parent, intimation on such a parent will be necessary. However, for the reasons I explain in paragraph [7] above, I respectfully doubt the view expressed in paragraph [27] that the court "may confer contact rights on a parent". Section 82(1)(a)(ii) does not permit the court to vest the section 2(1)(c) parental right of contact in the local authority. Nor can it extinguish such rights in terms of section 82(1)(d)(ii) unless they have been vested in "a person other than the local authority" by virtue of section 82(1)(b)(ii). In my respectful opinion, parents will always retain the section 2(1)(c) right of contact after the grant of a permanence order unless that right has been extinguished in terms of section 82(d)(ii). Of course, that right may be of little or no value if no ancillary provision specifying any arrangements for contact has been made in terms of section 82(1)(e) but it will remain. And section 92 of the 2007 Act provides a mechanism whereby variation of the permanence order might be sought by a parent to specify arrangements for contact. So it is not an illusory right which could never be exercised. If it exists, and if the adoption order would have the effect of extinguishing it, then the right to respect for private and family life of parents who retain the section 2(1)(c) right of contact is engaged in terms of Article 8 of the European Convention of Human Rights and intimation of the adoption application should always be made. Otherwise, there is a danger that the Article 6 right to a fair hearing in relation to the determination of these rights may be breached.

[12]         Rule 15 gives the court a discretion to order intimation but says little about the form such intimation should take other than that it should be in such form as the sheriff thinks appropriate. It is not necessary to use Form 5 as Rule 14 requires for the situations where intimation is mandatory. I decided, however, to base the intimation on Form 5. Following Form 5, I ordered intimation to "any person who can be found and whose consent to the making of the Adoption Order is required to be given or dispensed with" and ordained "any person who intends to oppose this application or seek and order to lodge Form 8........"

But I also added the following:

"Ex proprio motu, Orders intimation of the Application and the Hearing to be made to [BM] (the child's natural mother) and [CR] (the child's natural father) and Orders that if either wishes to make representations that any Adoption Order granted should contain any condition or arrangement for contact with the child after Adoption they should lodge a form of response in terms of Form 8........."

On reflection, I am not sure that all this was necessary. There were no persons whose consent was required to be given or dispensed with. That had already been done in the permanence orders.

Intimation Procedure

Parties' Submissions

[13]         The first set of issues raised by Mr Hann's submission was based on the interpretation of the rules governing intimation. Was I entitled to seek to restrict the scope of the parent's opposition to the issue of contact and was that, in fact, the effect of the interlocutor? Mr Hann founded, particularly, on Rule 16(1) which is in the following terms:

"16.- Form of response

1.     Any person who has received intimation of an application by virtue of rule 14 or 15 and who intends to oppose that application shall lodge a form of response in Form 8 not later than 21 days after the date of intimation of the application or such other period as the sheriff may direct.

2.     A form of response under paragraph (1)-

                                      i.     must contain a brief statement of the respondent's reasons for opposing the application but shall be without prejudice to any answers lodged under rule 18(1)(b)(ix);

                                    ii.     must be intimated by the respondent to the applicant at the time of lodging."

 

[14]         The argument was that once intimation had been given the right to oppose the adoption was unrestricted. Even if that were mistaken it was argued that the inclusion in the interlocutor of the general standard wording in Form 5 opened up the right to oppose the adoption applications in any aspect. Finally it was argued that, esto I had been entitled to seek to restrict the scope of the opposition, I should not do so because, at a preliminary hearing, the sheriff had a discretion in terms of Rule 18(3)(b) "to make such other order as he considers necessary for the expeditious progress of the cause. That was because, for the substantive reasons founded on by Mr Hann, which I will go on to discuss, a parent whose consent to the adoption of a child had been dispensed with was still entitled to oppose any aspect of the adoption application.

[15]         Mrs Guthrie presented a different argument. She submitted that the rules regarding intimation were purely procedural. They could not, even if the form of intimation was defective, extend to a parent a right of opposition which he or she did not have in terms of the 2007 Act. In the present cases such a right did not exist outwith seeking that terms and conditions relating to contact be contained in any adoption order granted.

Discussion and Decision

[16]         I agree with Mrs Guthrie's submission. If a parent has no right to oppose an adoption application then any intimation which implies such a right cannot create it; and if that right is restricted, then a defective intimation cannot extend it. I do not think that the intimation given implies either. There was no separate intimation to anyone whose consent required to be dispensed with. The scope of what the parents might seek in opposing the application is clearly set out in the additional ex proprio motu intimation which I ordered. The real issue is whether, despite that, and if so to what extent, BM and CR are entitled to oppose the applications or seek orders in the adoption processes.

Opposition to the Adoption Orders

Parties' Submissions

[17]         Mr Hann's substantive argument proceeded, it seemed to me, on a fundamental misunderstanding of the position of BM and CR as parents of L and the other children. He founded on the Article 6 right to a fair hearing which he said was engaged because the adoption applications sought to "transfer parenthood from one private party to another". The applications were proceedings concerning civil rights and obligations. He referred to Rasmunssen v Denmark (1985) 7 EHHR 371, Airey v Ireland (1979-80 2 EHHR 305, Principal Reporter v K 2011 SLT 271 and Lester, Pannick and Herberg, Human Rights and Practice (3^rd Edition), (para 4.6.9). Additionally, Article 8 was engaged. The grant of the applications would represent the "final and irrevocable step of cleaving the parent-child relationship between the mother and her children". Before adoption, the restoration of parental rights and responsibilities is possible (sections 92-94 and 98-100 of the 2007 Act). Four matters distinguished the adoption proceedings from the permanence order proceedings - finality, "the transferring of parenthood", determination of the suitability of the adoptive parents, the question of contact after adoption. BM was entitled to make representations on each. Proceedings involved in measures of interference in family life must be fair and such as to afford due respect to the interests safeguarded by Article 8. Parents should be involved at all stages in any decision-making process which might result in the state interfering with family life and should have the opportunity to be properly informed and to have their views taken into account (McMichael v United Kingdom (1995) 20 EHHR 205, TP and KM v United Kingdom (2001) 2 FCR 289, 310, W v United Kingdom (1987) 10 EHRR 29, 50 and Covezzi v Italy ECtHR 9 May 2003 (case No 52763/99, Jucius and Juciuviene v Lithuania (2009 49 EHRR 3) and, Principal Reporter v K).

[18]         East Lothian Council, Petitioners stated that parents with provision for contact in terms of a permanence order should receive intimation of an adoption application. However, there had been no discussion in that case about the effect of an adoption order or the distinction between permanence orders and adoption orders in terms of removing parenthood. The case could not be said to be limit the effect of intimation to matters of contact. BM was entitled to enter the process without condition. A refusal to do so would represent unlawful contravention of her Article 8 rights.

[19]         In particular it was argued that she had the right to address the court on the suitability of the adoptive parents. It was said that they had failed to obtemper the spirit of the provisions in the permanence order regarding contact. They had not sought continuation in the adoption order of the arrangements for contact specified in the permanence order. They had sought to avoid intimation of the adoption application to the BM and CR. These matters engaged the issue of the best interests of the children and whether they should be adopted by the applicants. In the end of the day Mr Hann's submission was that the right to enter the adoption process and oppose the adoption rested on BM's right as a "parent".

[20]         Mrs Guthrie's submission addressed, firstly, the scope of the ability of BM and CR to oppose the adoption applications. The issue of the need for the consent of BM and CR to the adoption of the children had been dealt with by the permanence order proceedings. It could not be re-visited in the adoption processes. Section 31 of the 2007 Act dealt with the need for parental consent or the dispensing with parental consent before an adoption order could be made. It set out five conditions each of which satisfied that. The first was where the parent had consented or the court, in certain specified circumstances, had dispensed with such consent. The second condition was where a permanence order with authority to adopt was in force. The court had no discretion in relation to that. In the present case the second condition in relation to section 31 existed. The statutory route to revoking the permanence order (and the provision granting authority to adopt) was section 98 of the 2007 Act. No application in terms of that section had been made. It could not be made in the present processes.

[21]         The suitability of the applicants as adoptive parents was for the court to determine on the information provided in terms of the reports provided by the local authority, as the adoption agency, in terms of section 17 of the 2007 Act and the report of the curator/reporting officer in terms of rule 11 of the 2009 rules. If necessary, the court could call for additional information from either. Section 14 obliged the local authority to have regard to the views of the parents of the child. The section 17 report in the present cases and the proceedings in the permanence orders gave no indication that concerns about the suitability of the adoptive parents had been raised. The issue was one at the discretion of the sheriff.

[22]         In relation to Articles 6 and 8, I was referred to R and H v United Kingdom 35348/06 (2011) ECHR 844 and A, K and L v Croatia 37956/11 8^th January 2012. These confirmed that the two stage process of a permanence order, where authority to adopt was granted, and a subsequent adoption order complied with the provisions of these Articles of the Convention. The decision making process had to be seen as a whole. And it was a continuing one. The local authority had a duty in terms of section 99 to apply for variation or revocation of the permanence order if there had been a material change of circumstances. Section 98 allowed the parents, with the court's leave, to make a similar application in similar circumstances. It was not suggested in the present cases that the local authority had failed in that duty, or that there had been a material change in circumstances which would justify the revocation of the order. No application had been made by the parents in terms of section 98.

[23]         In all these circumstances the parents had no right, in the adoption process, to oppose adoption. Mrs Guthrie accepted, however, that they were entitled to be heard on the question of what order, if any, should be made to regulate contact between them and the children after adoption.

Discussion

[24]         The 2007 Act does not define the word "parent" in the interpretation section although the word is defined at various points in the Act for the purposes of certain sections (e.g. section 31(1) or section 83(5)). As discussed in McNeill and Jack, Adoption of Children in Scotland (4^th Edition) at para 4-03, the primary meaning of the word is the natural or genetic father or mother of the child. That is how the word is defined in section 15 of the 1995 Act for the purposes of Part I which provides the responsibilities and rights which parents have in relation to their children. And the 1995 Act (section 11) also provides for parents being deprived of such responsibilities and rights, for others to acquire them and for their regulation. So the provisions of the 2007 Act are part of a greater statutory scheme in relation to parents and their children and their respective responsibilities and rights. Natural parents only have the responsibilities and rights in relation to their children which the law accords them or (as in, for example, Principal Reporter v K 2011 SC (UKSC) 91) which they can acquire in terms of the law. In some circumstances parents who may have no rights and responsibilities in terms of the 1995 Act may have some rights recognised by the law but these circumstances are likely to be highly exceptional.

[25]         In the present cases the only parental responsibilities and rights which BM and CR have are those in terms of sections 1(1)(c) and 2(1)(c) of the 1995 Act. The permanence orders have deprived them of the remaining responsibilities and rights in terms of sections 1(1) and 2(1). Even in relation to the responsibilities and rights which remain, the permanence orders have considerably restricted the exercise of them. Significantly, they no longer have the responsibility or right to have the children living with them or to regulate the children's residence, to safeguard and promote the children's health, development and welfare, to provide direction or guidance to the children, to control, direct or guide the children's upbringing or to act as the children's legal representatives. Their consent to the adoption of the children has been dispensed with. Sections 92 and 98 to 100 of the 2007 Act provide for the variation or revocation of the permanence orders which deprived BM and CR of their responsibilities and rights and dispensed with their consent to adoption. Neither has made any application under any of these sections.

[26]         Mr Hann is correct that Article 8 of the Convention prevents interference with the family life of BM and CR. Part of that family life is their relationship with their children. That relationship, in terms of responsibilities and rights in Scots law, is set out in the 1995 Act. He is also correct that Article 6 provides that any interference with the right to family life, and the responsibilities and rights which Scots law provides for the exercise of that right, can only be made after there has been a fair hearing in relation to any application to deprive or restrict the rights which Scots law accords to parents to have that relationship and exercise it. Both the 1995 Act and the 2007 Act prescribe the circumstances in which the Scottish Courts may make orders which deprive or restrict such rights and so interfere with the Article 8 right to family life. These circumstances (as developed and expanded in the cases) are the "law" referred to in Article 8(2). One such is the scheme of the 2007 Act which permits adoption (with the consequent cessation for the natural parents of the responsibilities and rights which the law accords them) either directly or, through the permanence order procedure, in two stages.

[27]         That such a two stage procedure conforms with Article 8 is clear from R and H v United Kingdom and A, K and L v Croatia. In fact, in R and H v United Kingdom the two stage procedure itself was not the subject of challenge but rather its appropriateness in the circumstances of the case (para 65). In A, K and L v Croatia the Strasburg Court reviewed the practice of forty one member states in relation to whether a parent divested of parental rights was entitled to participate in subsequent adoption proceedings. Practices differed (para 69 of the judgment). It seems that the Court did not feel it necessary to decide "about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention" but it went on to consider whether "sufficient safeguards for the protection of the applicants' private and family life were provided at any stage of the process of severing the applicants' mutual ties" (para 70). The case was concerned with the shortcomings of the proceedings in the conduct of the case in Croatia rather than the procedural framework which Croatian law provided to regulate depriving parents of their rights and whether such a parent could be a party to subsequent adoption proceedings. The Court had already set out what was required of such proceedings. At para 63 it stated:

"The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision- making process must therefore, in the Court's view, be such as to ensure that their views and interests are made known to, and duly considered by the local authority and that they are able to exercise in due time any remedies available to them. In the Court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If not there will have been a failure to respect their family life and the interference will not be capable of being regarded as necessary within the meaning of Article 8."

Almost precisely the same formulation can be found in R and H v United Kingdom at para 75.

[28]         In the present cases BM and CR were able to exercise the remedies available to them to prevent them being deprived of their parental rights and to seek to prevent the grant of authority for the children to be adopted without their consent. They were involved in the decision-making process which deprived them of most of their parental rights and dispensed with their consent to the adoption of the children. They were legally represented in the permanence order proceedings. In the course of these there were lengthy hearings with evidence and the opportunity for both to give and present evidence, which they did. They have not exercised the remedies available to them to vary or revoke the decisions made in the permanence order processes. They do not submit that there are any changed circumstances in relation to the rights of which they have been deprived since the decisions were made. So the adoption proceedings do not interfere with the rights of which they have already been deprived. In the absence of such interference, Article 8 is not engaged in relation to these rights. And as nothing is being determined in relation to these rights, Article 6 is not engaged.

[29]         Nor, in my opinion, can any decision about the suitability of the adoptive parents interfere with the rights of which BM and CR have been deprived. They have, for example, no right to regulate the children's residence. The issue of suitability relates truly to the welfare and best interests of the children. Any rights which BM and CR had in relation to that are precisely those of which they have been deprived (those in sections 2(1)(a), (b) and (d)).

Decision

[30]         For all these reasons, neither BM nor CR has any right or locus to oppose the adoption applications.

Terms and Conditions Relating to Contact

Discussion

[31]         On the other hand, the applications seek to interfere with the right to contact which still vests in BM and CR. They do so in two ways. The grant of the applications will, as a matter of law, deprive BM and CR of that right. And the form of the applications, in which no terms or conditions in relation to contact are sought, will deprive them of the practical contact which the ancillary provision in the permanence order allowed them. That engages Article 8 and, in respect that a fair hearing to determine the proposed deprivation of the legal right and its practical application is necessary, Article 6 also. The most important issue which BM and CR raise, it seems to me, is the form such a hearing should take "having regard to the particular circumstances of the case".

[32]         The 2007 Act offers little guidance about the form of such a hearing. Section 31 is silent on the matter. In the sections of the Act headed "The making of adoption orders" there is no section in similar terms to section 86(1) which states:

"In any proceedings relation to an application for a permanence order, the appropriate court must permit any person mentioned in subsection (2) who wishes to make representations to the court to do so."

The procedure to be followed in applications for both adoption orders (Chapter 2) and permanence orders (Chapter 4) is set out in the 2009 Rules. There is a broad similarity between the two chapters. Each provides what any report by a local authority (whether under either section 17 for adoptions or rule 31(2)(b) for permanence orders) should contain and provides for the appointment of a reporting officer and curator ad litem and what his or her report should contain. The provisions for preliminary hearings and pre-proof hearings are in almost identical terms. These include provision that the sheriff must:

"ascertain from the parties the anticipated length of any proof that may be required" (rules 18(1)(b)(i) and 35(1)(b)(i));

"order answers and any other documents to be lodged within 21 days of the date of the preliminary hearing........" (rules 18(1)(b)(iv) and 35(1)(b)(iv))

"(a) if he is not satisfied that the facts stated in the application are supported by the documents lodged with it or by the reports of the curator ad litem and reporting officer, order the production of further documents; and

(b) make such other order as he considers appropriate for the expeditious progress of the case." (rules 18(3) and 35(3))

Rules 19 and 36, which are concerned with pre-proof hearings make similar provisions. In addition, in relation to adoption applications, section 17(2)(b) obliges the local authority, if acting as the adoption agency, "to assist the court in any manner the court directs".

[33]         These provisions point clearly to a procedure which, in relation to the merits of the application, is, in part at least, inquisitorial in nature and directed by the court rather than leaving to the discretion of applicant and any other parties the extent and quality of the information and material which the court will have before it in making its decision. The nature of hearings in relation to permanence orders was the subject of judicial comment in East Lothian Council, Petitioners and it may be worth setting out in full what was said by Lady Smith in paragraphs [31] and [32] of the Opinion of the Court:

"[31] Section 86 of the 2007 Act makes provision for proceedings relating to permanence orders. It provides: [her Ladyship quoted its terms set out supra and continued:]

[32] The persons mentioned in subs.(2) include a person who has parental responsibilities or parental rights in relation to the child. Thus, in the present case, the appellants had a right to make representations but no right under the statute to lead evidence (although, in the event, they were permitted to do so). That limitation is not surprising; the provision lies within an overall statutory scheme which includes Ch.3 of the 1995 Act, relating to the protection and supervision of children through the children's hearing system. It demonstrates that applications for permanence orders will not arrive "out of the blue". They will have been preceded by steps being taken under s.73 of the 1995 Act which include that the children's hearing is obliged to "draw up a report which shall provide advice in respect of ... the proposed application under section 80 of the 2007 Act ... for any court which may subsequently require to come to a decision, in relation to the child concerned ...". The court considering an application for a permanence order will thus have been provided with a factual history and overview by a body which is independent of the parties and, in common with it, charged with a responsibility to treat the child's welfare as the paramount consideration. We would add that, contrary to what was submitted by counsel for the second appellant, whilst the relevant Convention rights ( arts 6 and 8 ) will generally involve the right to a hearing, it does not follow that parties must necessarily be afforded the right to lead evidence. Whether or not evidence is to be allowed is, in civil cases, a matter for each contracting state; the relevant question for convention purposes is whether, as a whole, the proceedings were fair and ensured that due respect was given to family life. Fairness, and respect for family life, will not necessarily depend on the ability to lead oral evidence."

[34]         In my opinion that applies equally to adoption proceedings. The 2007 Act gives no right to those to whom intimation must or may be given to lead evidence (or even make representations in the specific terms which section 86 provides). The procedural provisions of the 2009 Rules in relation to adoption proceedings are virtually identical to those which apply to the proceedings for permanence orders which Lady Smith discusses. Provision for adoption proceedings lies within the same overall statutory scheme as provision for permanence order proceedings. Adoption applications do not arrive "out of the blue" but are likely to have been preceded both the same sort of steps to which Her Ladyship refers but also proceedings in a permanence order application (as has happened in the present cases). There is therefore a factual history and overview, not only by the children's hearing system, but also by a court which is an independent tribunal in terms of Article 6. In the present cases, the issue of contact after adoption, which BM and CR seek to raise was the subject of extensive examination during the permanence order proceedings. That included several days of evidence from the sort of "expert" witnesses from which both BM and CR again seek to lead evidence in the adoption order proceedings on what appears to be precisely the same issue. The factual material on which the court's decision in the permanence order applications was based, the legal considerations which were relevant to it, the arguments advanced by parties about both and the reasons for the court's decision on the issue of contact are fully set out in that decision which parties received copies of. There is no reason why the court considering the adoption proceedings should not have access to that and take it into account; and the powers contained in the 2009 Rules are more than adequate to ensure that it does. Of course, it would be important that BM and CR had an opportunity of being heard on all the relevant material which was before the court. But that is different from leading evidence.

Decision

[35]         BM and CR are, in terms of Articles 6 and 8, entitled to a hearing in relation to the effect which the grant of the adoption applications would have on their contact rights but, in my opinion, following what is said in East Lothian Council, Petitioners, it does not follow that parties must necessarily be afforded the right to lead evidence. And that is implied by the terms of rule 18(1)(b)(i) which refers to "any proof which may be required".

Future Procedure

[36]         It is not possible to decide at this stage whether or not evidence will be required in respect of the terms and conditions in relation to the contact which BM and CR seek. Sight of the report of the reporting officer and curator ad litem will be necessary. Of the material already available, the report by the local authority in terms of section 17 is silent on the question of contact. That is a concerning and puzzling omission. BM and CR retain the parental right of contact. That is being exercised in terms of the ancillary provision attached to the permanence orders. It is clearly part of the family circumstances of the children which the local authority is obliged to address in its report in terms of rule 8(4)(b). It should also have been clear to anyone involved in the preparation of the report that what rights of contact existed, how these had operated or been exercised and what the effect of any adoption order would be on such contact was "other information which may be of assistance to the court". The local authority is obliged to address that in their report in terms of rule 8(4)(z). Additional information on these issues will be required before any decision can be made about whether the children should be adopted and whether any order granted should contain terms and conditions about contact with BM and CR. It will also be required to decide if it is necessary to afford BM and CR the right to lead evidence before such decisions are made.

[37]         There is one other issue which was raised by Mr Hann on behalf of BM at the preliminary hearing. That related to the crave in the application relating to L that his forename be changed. As I have discussed and decided, that is not a matter where BM has any locus in the adoption proceedings but it is a matter which affects L's welfare. He is almost six years of age. Again, that is not something which has been addressed in the section 17 report. It should have been if that proposal was known to those involved in the preparation of the report.

[38]         I will appoint a reporting officer and curator ad litem and request that, in his report, he addresses the issue of post adoption contact and the proposed name change for L. In terms of section 17(2)(b) I will direct the local authority to provide a supplementary report in which these issues are addressed and to lodge copies of the court's decisions in the permanence order proceedings so that these are formally in the processes. I will assign a diet of proof and a pre-proof hearing. When I receive and have considered the reports and other documents I will order intimation of such of them as I consider appropriate (redacted as appropriate as these are serial number cases in terms of rule 10) to the solicitors for BM and CR. At the pre-proof hearing, having heard parties, I will determine whether a hearing with evidence is required or whether the issue of contact will be dealt with by hearing submissions from parties on the basis of the material and information before the court on which any decision will be made.