Scottish Sheriff Court Decisions

2015SCDUMF 1

 

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT DUMFRIES

 

 

 

JUDGMENT OF

 

SHERIFF DANIEL KELLY QC

 

in the Petition of

 

X

Petitioner

against

Y

Respondent

---------------------

 

Act: Steel, Lindsay Solicitors, Dumfries; Alt: Finlayson, Kilwinning.

 

 

 

Dumfries                    5 January 2015

 

 

The Sheriff, having resumed consideration of the case:

 

Finds in fact

1. A was born on [] and is aged 14. His parents were married on 1 November 1986. He has a brother B aged 26 and a sister C aged 23 who visit him regularly. His parents separated in 2006 and on 25 February 2008 a residence order was made in favour of his father Z. His mother, the respondent, was awarded extensive contact with the child. The school holidays and in-service days were split equally between his parents and in term time contact with the respondent was from 3.00 pm to 7.15 pm on Monday to Thursday, from 3.00 pm to 10.15 pm on Friday and from 10.15 pm on Friday to 6.45 pm on Sunday every second weekend, as well as at such further times as could be agreed. Since 15 March 2008 the child has lived in family with his father along with the petitioner. The petitioner has a son, D, aged 32 who lives elsewhere. Around 27 May 2009 Z was of the view that contact should discontinue. He felt that the respondent was undermining the manner in which the child was being brought up. This stemmed from a concern which had arisen about the child having certain toy figures at school, with Z grounding the child in response to this. The child later came back after a contact visit with some of the toy figures which had been bought for him by the respondent. In about October 2009 the contact order was varied with no set times being allocated but instead with contact to take place as organised by arrangement between the child’s parents. On 8 October 2009 the child’s parents were divorced. On 5 June 2010 the child’s father and the petitioner were married.
2. Between 2009 and 2011 contact between the respondent and the child continued and took place each Wednesday from 3.30 pm to 7.00 pm and every second Saturday from 10.00 am until 6.00 pm. In 2011 the child expressed a view that he did not find contact with his mother to be a pleasant experience and that it was making him feel bad about himself. He mentioned that she often had a friend round and that he was not having much time with her. Largely due to him expressing a preference that contact should not continue, since 2011 there has been no direct contact. Only one card has been sent by the respondent by way of indirect contact.
3. The child has expressed a view that he wishes to be adopted by the petitioner and consents to the making of such an order. His father consents to the making of such an order. His mother does not seek to disrupt the care arrangements which have been put in place in respect of the child but does not consent to and opposes the making of such an order.
4. The child is well cared for by his father and the petitioner in a stable and loving family unit. His welfare throughout his life would best be safeguarded by securing that domestic setting through conferring upon the petitioner parental rights and responsibilities in respect of the child. Coupled with a joint residence order in her favour along with that of the child’s father, such measures would adequately support the child’s home environment while sufficiently strengthening the parental role which the petitioner has been performing so successfully to date. There would be no material additional advantage to the child which would warrant severing his remaining relationship with the respondent without her consent and him being adopted by the petitioner. It would not be to the child’s advantage to differentiate him from his siblings.

 

Finds in law

1. The respondent is able satisfactorily to discharge her parental responsibilities and exercise her parental rights and is likely to continue to be able to do so; and
2. The welfare of the child does not require the respondent’s parental consent to be dispensed with.

 

THEREFORE:

1. Makes an order in favour of the petitioner in terms of section 11(2)(b) and 11(3)(b) of the Children (Scotland) Act 1995 imposing upon the petitioner parental responsibilities and giving her parental rights in relation to the child A born on [];
2. Makes a residence order in relation to the child A born on [] in favour of the petitioner in terms of section 11(2)(c) and 11(3)(b) of the Children (Scotland) Act 1995, jointly with the residence order in favour of the child’s father Z made on 25 February 2008.
3. Refuses the petitioner’s application for an adoption order; and
4. Finds no expenses due to or by either party except as may otherwise have been dealt with.

 

Sheriff Daniel Kelly QC

 

 

NOTE

Evidence

• [1]In keeping with the Sheriffdom Practice Note No 1 of 2009, and in particular paragraph 20 thereof, parties restricted the evidence to that of the petitioner and relied upon various reports. I accepted the petitioner’s evidence as being manifestly credible and reliable.

   

  Parental involvement

• [2]While the child has been subject prior to the divorce to four referrals to Social Work Services in relation to one or other of his parents, none were such as to raise any concerns. In 2008 when a residence order was made in favour of the child’s father extensive contact was awarded to his mother. In 2009 it was perceived by his father that there were certain difficulties with contact, which he stopped around 27 May 2009. A Bar Report dated 20 July 2009 referred to the issue of different parenting styles and there was discussion therein as to the child’s father adopting a particular approach to discipline which he felt was undermined by the respondent buying the child toy figures during a contact visit. When asked about this the respondent maintained that she had not been fully informed of a school incident involving the toy figures or she would not have bought him them. In the Bar Report the child exhibited a certain ambivalence as to contact, saying that he enjoyed it when his mother was good with him but not when she shouted at him. It was further narrated in the Bar Report that the child did not wish to see his mother unless someone else was present: p 20. A Supplementary Bar Report dated 5 October 2009 reported upon three contact visits which had been ordered on 6 August 2009. These visits seemingly had a measure of success, the first two attended by two social workers being rated by the child as “10 out of 10” and the third, unsupervised, as “five out of 10”. The Bar Reporter advised that the child was fairly clear that he wished a relationship with his mother and that he still wished to see her: p 2. Shortly thereafter the contact order was revoked with contact being arranged informally each Wednesday from 3.30 pm to 7.00 pm and every second Saturday from 10.00 am until 6.00 pm. As time progressed the child did not feel that he was enjoying the contact visits and they came to an end in 2011. There is no suggestion that the respondent has in any way done anything adverse in relation to the child which would render contact inappropriate. Mainly due to the child preferring the experience which he has with the petitioner and his father to that which he has with the respondent, matters have developed to the point that he no longer has any involvement with the respondent.
• [3]The home in which the child is living along with the petitioner and his father is a demonstrably comfortable and caring one. The child enjoys an excellent relationship with both his father and the petitioner.

   

  What the petitioner seeks

• [4]The petitioner seeks an adoption order in terms of section 28 of the Adoption and Children (Scotland) Act 2007. In her Application she relies first upon the ground that the respondent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so. In her evidence it was a mark of her truthfulness that she very fairly conceded that the respondent was able to discharge her parental responsibilities and exercise her parental rights. The second ground relied upon is that the welfare of the child requires the consent of the respondent to be dispensed with. In this regard the petitioner agreed that the child’s welfare was well served as matters stand. Nonetheless, she indicated that she considered adoption necessary for the child’s security, should anything happen to his father. She maintained that it would then be clear in the event of his father’s premature demise that she would be there for the child for the rest of his life and that the respondent would not be awarded residence. The petitioner said that she had considered the alternative of a residence order but that this would not achieve the same result since the child did not wish his mother to be in his life and an adoption order was the only way that that could be achieved.

   

  Child’s views

• [5]The child was reported by the social worker who compiled the Report in terms of section 19 of the 2007 Act as having been asking for adoption for years: para.s 10.3.5 – 10.3.6. He added that he did not wish contact with his mother because she had made him feel bad about himself when he previously had contact with her: para 10.3.2. He was considered able to express his views in a clear, decisive and mature fashion. The solicitor who compiled the Curator’s and Reporting Officer’s Reports also recorded that the child has expressed a wish to be adopted, documenting a concern voiced by the child that were his father to die there might be difficulties for the petitioner if she were not his adoptive mother: Curator’s Report para (u), Reporting Officer’s Report para (c). He describes the child as being very intelligent and articulate: ibid.

   

  Views of the Reporters

• [6]The social worker who compiled the section 19 Report recommended that, based upon the evidence provided in that report, the petition be granted: para 12.2. Likewise the Curator expressed the view that it would be better for the child that the order be made than not, “looking at matters purely from the perspective of [the child] himself, without regard to the interests of his siblings or stepsiblings, and taking no account of his birth mother’s position.”: Report dated 24 July 2014, para (s).
• [7]The weight to be attached to the views of the social worker and curator is, however, significantly diminished by their lack of consideration of any alternatives to adoption. There is no account in the local authority Report of any discussion with the parents and with the child about the alternatives to adoption, which ought to have been included: Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children) (Scotland) Act 2007) 2009, rule 8(4)(d).Likewise, the solicitor in compiling the Curator’s and Reporting Officer’s Reports did not include any mention of him ascertaining whether alternatives to adoption had been discussed with the parents or child. He commented, “Obviously, no alternatives to adoption have been discussed with [the respondent].”: Reporting Officer’s report, para (c). He, too, was under a duty to ascertain whether alternatives to adoption had been discussed with her: 2009 Act of Sederunt, rule 12(1(c)(ii). The result of not addressing the alternatives to adoption in reaching the conclusions reached is that one is left not knowing what the recommendation of the social worker and Curator/Reporting Officer would have been had they done so. Further, the Curator expressly took no account of the respondent’s position, but that is not a position which a court could adopt.

   

  Conditions to be fulfilled

• [8]First, for an adoption order to be made there is a need either for the consent of both of the parents or for such consent to be dispensed with. The court must be satisfied that each parent of the child understands what the effect of making an adoption order would be and consents to the making of the order: 2007 Act, section 31(1)(2)(a). In the absence of such parental consent a court may exercise a power to dispense with a parent’s consent on a ground specified in section 31(3): 2007 Act, section 31(2)(b). Should no ground exist, there could not be dispensation of a parent’s consent. In this instance the father consents but the respondent does not and the petitioner asks the court to dispense with her consent. The petitioner relies upon two grounds: inability to discharge parental rights satisfactorily and what might be termed the welfare ground.
• [9]Secondly, an adoption order cannot be made in respect of a child who is aged 12 or over unless the child consents: 2007 Act, section 32(1). There is no alternative of dispensation. In this case the child is aged 14 and does consent.

   

  Ground one: Inability to discharge parental rights satisfactorily

• [10]Consent may be dispensed with where a parent is, in the opinion of the court, unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so: 2007 Act, section 31(4). In determining that it would be reasonable to take account of the history, the current position, as well as likely future prospects.
• [11]The respondent currently exercises the parental responsibilities contained in section 1(1)(a), (b) and (d) of the Children (Scotland) Act 1995 to safeguard and promote the health, development and welfare of the child, to provide him with direction and guidance and to act as his legal representative. She exercises the parental rights contained in section 2(1)(b) and (d) of the 1995 Act to control, direct and guide the child’s upbringing and to act as the child’s legal representative. While she may retain the remaining responsibilities and rights to have the child live with her or otherwise regulate his residence and to maintain personal relations and direct contact with him on a regular basis, she is not currently exercising them.
• [12]It was argued on behalf of the petitioner that it would be nigh impossible for the respondent to exercise parental rights and responsibilities. It was said that there was no evidence of her promoting the child’s welfare since 2009, that she could not provide guidance since she did not know of the child’s circumstances, that it was highly unlikely that the child would wish to entrust any legal affairs to her and that this position was likely to continue. While the respondent suffers from several conditions such as multiple sclerosis and deep vein thrombosis, it was recognised on both sides that these do not in any way render her unable to discharge her parental rights and responsibilities. For the respondent it was argued that there was no inability to discharge her parental rights and responsibilities, it was simply that she was not being allowed to do so. It was pointed out on her behalf that the petitioner was concerned that should anything happen to the child’s father the respondent might exercise her parental rights, which presented a conundrum if at the same time it was being maintained that she was unable to do so and was likely to continue to be unable to do so.
• [13]I can perceive no basis in the material presented which establishes that the respondent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so. On the contrary, she is keen so to do but, in the absence of a court order for contact, with the child having become disenchanted with contact, with his father and the petitioner concurring with him and with no on-going involvement, the respondent does not have the opportunity to do so. On the evidence there is no inability on her part, simply a preference of the child for a different regime. The objective test is whether the respondent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so. As the respondent is in my estimation well able satisfactorily to discharge her parental responsibilities and exercise her parental rights and is likely to continue to be able to do so, her consent cannot be dispensed with on this ground.

   

  Ground two: The welfare ground

• [14]The inability ground not being applicable, it is necessary to go on to address the second ground relied upon relating to the child’s welfare. Where section 31(4) or (5) do not apply - and only in this eventuality - parental consent may be dispensed with where the welfare of the child otherwise requires it: 2007 Act, section 31(3)(d).
• [15]It was argued on behalf of the petitioner that although the child is happy, secure and developing well, he feels that there is something lacking and that this could only be resolved by him being adopted by the petitioner. It was said that few courts would grant the petitioner a parental rights and responsibilities order, were she to apply for one, when it would only last for another 18 months. For the respondent it was argued that there were no problems with the child’s welfare, that nothing would change for the child were he to be adopted and that the grant of the order would be an unwarranted interference with the respondent’s right to family life since such a measure had not been shown to be necessary. It was said that there was nothing to prevent the petitioner from applying for parental rights and responsibilities in due course.
• [16]Welfare has to be read in the context of section 14(3) of the 2007 Act and regard must be had to the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration: 2007 Act, section 14(1). Further, so far as reasonably practicable, regard must be had to (a) the value of a stable family unit in the child’s development, (b) the child’s views, (c) his religious persuasion, racial origin and cultural and linguistic background, and (d) the likely effect on the child throughout his life of the making of an adoption order: 2007 Act, section 14(1) and (4). In the application of these factors to the child, while the making of an adoption order would in many other cases pave the way for a child to reside in a stable family unit, fortunately in this instance he is already securely in one. The child’s views have been clearly expressed and he is noted as being intelligent and articulate. They are to the effect that he is in favour of adoption. Being those of a 14 year old, they carry considerable weight. However, while the basis for his views in preferring one regime to another might provide a powerful motive for him in consenting to adoption, it is not in itself a particularly strong reason to divest the respondent of her legal attachment to him. Moreover, it ought to be possible to assuage the child’s apprehension that in the event of his father’s death his mother might seek a residence order by the grant of a residence order in favour of the petitioner. So, while his views are highly persuasive, they remain one of a number of factors and his primary concern might adequately be allayed by means of a less final measure. No religious or cultural issues arise. In considering the likely effect on the child throughout his life of the making of an adoption order, regard ought to be had to his position vis-à-vis his brother and sister. If granted, they will thereafter be rendered his half-siblings, with the child becoming the child of the petitioner and his father. There will, therefore, be an impact for him as regards members of his family other than his mother.
• [17]A parent’s consent can only be dispensed with if the welfare of the child requires it. It must, therefore, be something more than being merely desirable or reasonable – it must be necessary: S v L 2012 SLT 961 at para 32. The making of an adoption order against the wishes of the respondent who is a parent would be a very significant state intervention in the family relationship. The effect of the order would be to extinguish all parental rights and responsibilities of any person other than the parent who, with the applicant, constitutes the relevant couple - namely of the respondent. Such an interference with the rights of the respondent would require to be proportionate, where nothing less than adoption would suffice in order to ensure the child’s welfare: S v L 2012 SLT 961 at para 34. If the child’s welfare could be equally well secured by some other less interventionist method than step-parent adoption then it could not be said that his welfare required that consent to adoption be dispensed with: ibid. This is in keeping with the requirement that an adoption order must not be made unless it is considered that it would be better for the child that the order be made than not: 2007 Act, section 28(2).
• [18]While step-parent adoptions are common, with 97 such adoptions out of 489 adoptions in Scotland in 2013 (cf General Register for Scotland, Vital Events Reference Tables 2013), many proceed with the consent of parties. The petitioner as a step-parent who has accepted the child as a member of her household already enjoys many rights and responsibilities in relation to his health, development and welfare, aliment and education and as a relevant person: cf Norrie, The Law of Parent and Child in Scotland, 3^rd Edition, para 21.05. There would therefore have to be some clear advantage in formalising the petitioner’s relationship with the child in order to exclude the respondent from his life. No such advantage has been identified. That is particularly so when considering alternatives to adoption, the main ones being conferring parental rights and responsibilities on the petitioner and making a residence order in her favour. Section 11(3)(b) of the Children (Scotland) Act 1995 empowers the court to make such orders even when no application has been made for them where the court considers that it should make such an order, even if it declines to make any other order. Therefore, although neither party has sought that such an order be made in favour of the petitioner, it would nonetheless be open to make one if such an order should be made. I propose to address the issues raised by the petitioner and by the child by conferring parental rights and responsibilities on the petitioner and by making a residence order in her favour, in accordance with section 11(3)(b). This will run alongside the residence order in favour of the child’s father. With the petitioner enjoying parental rights and responsibilities and with the child being subject to residence orders in favour of both his father and the petitioner, there is no pressing need for an adoption order to be made divesting the respondent of her parental rights and responsibilities and making the petitioner the adoptive parent. It cannot, therefore, be said that the welfare of the child requires the parental consent of the respondent to be dispensed with.

   

  Decision

• [19]As the respondent does not consent and as neither ground relied upon for dispensing with her consent has been made out, the petitioner’s application for an adoption order is refused. Instead, orders conferring parental rights and responsibilities on the petitioner and making a residence order in her favour are made.

   

  Expenses

• [20]As both parties were addressing what they considered to be best for the child, no expenses will be due to or by either party except as may otherwise have been dealt with.

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