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Petition of AD10/23 for authority to adopt the child EO (Court of Session) [2025] CSOH 45 (28 May 2025)
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[2025] CSOH 45
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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 45
AD10/23
OPINION OF LORD STUART
In the Petition of
AD10/23
Petitioner
for
Authority to adopt the Child EO
Petitioner: Sharpe; SKO Family Law Specialists LLP (for J K Cameron, Glasgow)
Respondents: Initially parties and latterly, for the first respondent, Scott KC;
CSG Legal Limited
28 May 2025
Introduction
[1]
This opinion follows a proof and concerns an application for adoption, by the
petitioner, of the child EO. EO's circumstances are set out in more detail below. EO was
born on 17 September 2016. EO is currently subject to a Compulsory Supervision Order, in
terms of which he resides with the petitioner (at an undisclosed location) and is to have
letterbox contact with the respondents. The first respondent is the EO's natural mother. The
second respondent is EO's natural father. The respondents have parental responsibilities
and rights in respect of EO. The respondents oppose EO's adoption. For much of the
proceedings the respondents represented themselves. During the latter stages of the proof
and at submission, the first respondent was represented by Mrs Scott, KC. The court
2
acknowledges Mrs Scott's willingness to accept very late instructions in this case and the
assistance she provided to the court. This opinion concerns whether the petitioner's
application for adoption should be granted, and, more particularly, whether the
respondents' consent to such an adoption should be dispensed with.
The applicable law
[2]
This case concerns a direct petition for adoption. The applicable statutory provisions
that govern its determination are found in the Adoption and Children (Scotland) Act 2007
("the 2007 Act"). Insofar as relevant to this petition, the 2007 Act provides:
"14 Considerations applying to the exercise of powers
(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a
decision relating to the adoption of a child.
(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 and linguistic
background, and
(d) the likely effect on the child, throughout the child's life, of the making of
an adoption order
(5) Where an adoption agency is placing a child for adoption it must have regard, so
far as is reasonably practicable, to the views of the parents, guardians and other
relatives of the child.
(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption
agency must, before making any arrangements for the adoption of a child, consider
whether adoption is likely best to meet the needs of the child or whether there is
some better practical alternative for the child."
3
...
28 Adoption orders
(1) An adoption order is an order made by the appropriate court on an application
under section 29 or 30 vesting the parental responsibilities and parental rights in
relation to a child in the adopters or adopter.
(2) The court must not make an adoption order unless it considers that it would be
better for the child that the order be made than not.
(3) An adoption order may contain such terms and conditions as the court thinks fit.
....
30 Adoption by one person
(1) An adoption order may be made on the application of a person ("A") if--
(a) A is aged 21 or over,
(b) subsection (2), (3), (4) or (5) applies,
(c) one of the conditions in subsection (6) is met ...
(2) This subsection applies if A is not a member of a relevant couple.
....
(6) Those conditions are--
(a) that A is domiciled in a part of the British Islands,
(b) that A has been habitually resident in a part of the British Islands for a
period of at least one year ending with the date of the application.
....
31 Parental etc. consent
(1)
An adoption order may not be made unless one of the five conditions is met.
(2) The first condition is that, in the case of each parent or guardian of the child, the
appropriate court is satisfied--
(a) that the parent or guardian understands what the effect of making an
adoption order would be and consents to the making of the order (whether or
not the parent or guardian knows the identity of the persons applying for the
order), or
(b) that the parent's or guardian's consent to the making of the adoption
order should be dispensed with on one of the grounds mentioned in
subsection (3).
(3) Those grounds are--
(a) that the parent or guardian is dead,
(b) that the parent or guardian cannot be found or is incapable of giving
consent,
4
(c) that subsection (4) or (5) applies,
(d) that, where neither of those subsections applies, the welfare of the child
otherwise requires the consent to be dispensed with.
(4) This subsection 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 Act [see
below],
(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.
(5) This subsection applies if--
(a) the parent or guardian has, by virtue of the making of a relevant order, no
parental responsibilities or parental rights in relation to the child, and
(b) it is unlikely that such responsibilities will be imposed on, or such rights
given to, the parent or guardian.
(6) In subsection (5)(a), "relevant order" means a permanence order which does not
include provision granting authority for the child to whom the order relates to be
adopted.
....
(15) In subsections (2) and (3), "parent", in relation to the child to be adopted,
means--
(a) a parent who has any parental responsibilities or parental rights in
relation to the child, or
(b) a parent who, by virtue of a permanence order which does not include
provision granting authority for the child to be adopted, has no such
responsibilities or rights."
[3]
Sections 31(4) and (5) have to be read along with the definitions of parental
responsibilities and parental rights in sections 1(1) and 2(1) of the Children (Scotland) Act
1995, as amended.
[4]
Section 1(1) provides:
"(1) ...a parent has in relation to his child the responsibility
(a) to safeguard and promote the child's health, development and welfare;
(b) to provide, in a manner appropriate to the stage of development of the
child
(i) direction;
(ii) guidance,
to the child;
5
(c) if the child is not living with the parent, to maintain personal relations and direct
contact with the child on a regular basis; and
(d) to act as the child's legal representative,
but only in so far as compliance with this Section is practicable and in the interests of
the child."
[5]
Section 2(1) provides:
"(1) ...a parent, in order to enable him to fulfil his parental responsibilities in
relation to his child, has the right
(a) to have the child living with him or otherwise to regulate the child's
residence;
(b) to control, direct or guide, in a manner appropriate to the stage of
development of the child, the child's upbringing;
(c) if the child is not living with him, to maintain personal relations and
direct contact with the child on a regular basis; and
(d) to act as the child's legal representative."
[6]
Turning to appellate court consideration of the interpretation and application of the
relevant provisions.
[7]
In S v L [2012] UKSC 30 the Supreme Court addressed the interpretation and
application of section 31 of the 2007 Act, within the context of an argument that
section 31(3)(d) was outwith the legislative competence of the Scottish Parliament as being
incompatible with the Convention rights set out in Schedule 1 to the Human Rights Act
1998. The issue arose in adoption proceedings before the Sheriff Court. Before the Supreme
Court, the appellant, the mother of the child who was the subject of the adoption
proceedings, opposed the adoption and refused to give her consent. The first respondents
were the prospective adopters.
[8]
In relation to the interpretation and application of the relevant statutory provisions,
and in particular section 31(3)(d), Lord Reed, giving the principal judgment of the court,
with whom on relevant matters the other Judges agreed, stated:
6
"24. Returning to section 31 of the 2007 Act, the first point to note is that it is
premised on the general need for parents to consent to the making of an adoption
order. The default position is that absent parental consent, an adoption order cannot
be made. Section 31(2)(b) however confers a power, exercisable only by a court, to
dispense with the consent of a parent on the grounds specified in section 31(3)
...
26. ... Section 31(3)(c) ... identifies two other specific circumstances, described in
detail in subsections (4) and (5), where consent may be dispensed with: namely,
where the parent is unable to discharge her parental responsibilities or to exercise
her parental rights, and is likely to continue to be unable to do so; and where the
parent has, by virtue of a permanence order, no parental rights and responsibilities,
and it is unlikely that such responsibilities or rights will be imposed upon, or given
to, her.
27. Section 31(3)(d) ... applies only where section 31(4) and (5) do not. It is therefore
not ... the general ground which the court has to consider when dealing with any
parent whose whereabouts are known and who is of full capacity. Instead, it is
relevant only when the court is dealing with a parent who, in addition to fulfilling
those requirements, also falls within neither of the categories defined in section 31(4)
and (5) .
...
30. Section 31(3)(d) is a more complex provision than it might appear. In the first
place, the word "welfare" has to be read in the context of section 14(3), which applies
where a court is coming to a decision relating to the adoption of a child: section 14(1).
The decision whether to dispense with parental consent is plainly a decision relating
to the adoption of a child. In reaching its decision under section 31(3)(d), therefore,
the court must regard the need to safeguard and promote the welfare of the child
throughout the child's life as the paramount consideration, as required by section
14(3) .
31. Secondly, since a decision whether to dispense with parental consent falls within
the scope of section 14(1), the court must have regard to the specific matters listed in
section 14(4), so far as is reasonably practicable. ...
32. Thirdly, section 31(3)(d) empowers the court to dispense with the parent's
consent only if it is 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.
...
34. ... There must, in other words, be an overriding requirement that the adoption
proceed for the sake of the child's welfare, which remains the paramount
consideration. The court must be satisfied that the interference with the rights of the
7
parents is proportionate: in other words, that nothing less than adoption will suffice.
If the child's welfare can be equally well secured by a less drastic intervention, then it
cannot be said that the child's welfare "requires" that consent to adoption should be
dispensed with. ...
...
47. All that said, section 31(3)(d) leaves much to the judgment of the sheriff hearing
the individual case. He is not as tightly constrained, in his appreciation of the
circumstances of the case, as a court may be in some other contexts where legislation
has been drafted with greater specificity. That however reflects the nature of the
subject-matter of the provision. It is impossible to spell out exhaustively the
particular circumstances in which an order dispensing with parental consent may be
necessary. A number of specific circumstances are described in section 31(3)(a) and
(b), and in subsections (4) and (5). Section 31(3)(d) is intended to confer a residual
power which can be used in such other circumstances as may arise: it is, in effect, a
safety net. It is unrealistic to expect that a provision of that nature will spell out the
precise circumstances in which it may appropriately be employed."
[9]
In S, Petitioner [2014] CSIH 42 the Inner House considered an appeal in a case
concerning a petition for adoption where the Sheriff had dispensed with the consent of a
child's natural mother "on the ground set out in section 31(3)(c) and section 31(4) of the said
Act as well as on the ground set out in section 31(3)(d) of the said Act". The child was
aged 7 at the date of the Sheriff's decision and had lived in family with the prospective
adopters since she was one month old. In considering the interpretation and application of
the relevant statutory provisions, Lady Smith, delivering the judgment of the Extra Division
stated:
"27. Section 31(5) is not relevant for the purposes of the present case. We will refer to
the ground in section 31(4) as `the incapacity ground'. As can be seen from its terms,
the legislation specifies particular criteria that must apply before the ground is
established. ...
28. We will refer to the ground in section 31(3)(d) as "the welfare ground". The
welfare ground can only apply if neither the incapacity ground nor the ground set
out in section 31(5) apply. Accordingly, it may be seen as a residual ground or, as it
has been referred to, a safety net.
29. We consider that, when considering whether or not the incapacity ground
applies, the court is engaged, essentially, in a fact finding exercise; what facts are
8
established by the evidence and, on those facts, does the court conclude that the
relevant parent or guardian is unable satisfactorily to discharge the rights and/or
responsibilities referred to and are they likely to continue to do so? Whilst deciding
whether or not that is the correct conclusion is, we accept, a matter of judgment, it
will be driven very much by the facts of the individual case. ... As for convention
considerations, for the same reasons as are given by Lord Neuberger at paragraph 62
consider that, at the stage of deciding whether or not the incapacity ground applies,
article 8 has any part to play.
30. When considering whether or not the welfare ground applies, the court requires
first to determine what, as a matter of fact, safeguarding and promoting the welfare
of the particular child involves and, looking to the future, will involve, having regard
to all the circumstances including those factors specified in section 14(4) of the 2007
Act. To that extent, it too involves an initial fact-finding exercise. However, the terms
of section 31(2)(b) read together with 31(3)(d) show that, if the court is satisfied that
the welfare of the child requires it, parental consent must be dispensed with; the
court then has no choice in the matter (unlike the situation when the incapacity
ground applies). Accordingly, article 8 considerations do, we consider, come into
play when deciding whether or not the welfare ground is established. To put it
another way, the legislative structure in the case of the welfare ground is such that
there is no initial threshold to be crossed albeit that there is an initial need to ask
what, as a matter of fact, is involved in the welfare needs of the individual child."
[10]
In Fife Council v M 2016 SC 169 the Inner House considered the decision of a Sheriff,
who in granting the petitioner's application for a permanence order with authority to adopt,
dispensed with the consent of the child's natural parents (M and F) to that adoption under
section 83 of the 2007 Act [which is in terms materially identical to the provisions of
section 31 of the 2007 Act]. The Sheriff determined that M was unable to satisfactorily
discharge her parental responsibilities and rights and was likely to be unable to continue to
do so (the "incapacity ground", section 83(3)). In relation to F, the Sheriff determined that F
did not meet the incapacity test but determined that the welfare of the child required that F's
consent be dispensed with (the "welfare ground", section 83(2)(d)).
[11]
In affirming the Sheriff on the relevant matters, the Inner House stated the
issues that
were live before the sheriff were (i) whether the consent of M
and F to the making of an
9
order granting authority for adoption should be dispensed with (section 83(1)(c)(ii)), and (ii)
whether it would be better for the child if the court were to grant authority for the child to
be adopted than if it were not to grant such authority (section 83(1)(d)).
[12]
In relation to dispensing with parental consent under section 83(2)(d) (the welfare
ground), Lord Bracadale, delivering the Extra Division's judgment, stated:
"59. In respect of F, having found that he did not meet the incapacity test, the sheriff
considered whether the welfare of the child otherwise required the consent of F to be
dispensed with. The approach to this question has recently been considered by the
UK Supreme Court in S v L in which the court considered the identical ground in
section 31 of the 2007 Act in respect of the making of an adoption order. At paras [30]
-- [37] Lord Reed JSC analysed the similar provision in section 31(3)(d) describing it
as a `more complex provision than it might appear'. As the decision whether to
dispense with parental consent is a decision relating to the adoption of a child, the
word `welfare' has to be read in the context of the provisions of section 14 of the 2007
Act. Accordingly, in reaching its decision whether to dispense with parental consent
on the welfare test, the court must regard the need to safeguard and promote the
welfare of the child throughout the child's life as the paramount consideration
(section 14(3)). The court must also have regard to the specific matters listed in
section 14(4) so far as is reasonably
practicable. These are: (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 and linguistic background; and (d) the likely
effect on the child, throughout the child's life, of the making of an adoption order.
60. Lord Reed went on at para [32] to note that the court may dispense with the
appellant's consent only if it is satisfied that the welfare of the child "requires" it.
This imposed a high test. The word `requires' should be given its ordinary English
meaning: `to say that something is required means that it is not merely desirable or
reasonable, but that it is necessary' ..."
[13]
The Inner House, after citing passages from the judgments in
In re B (A Child) (Care
and In re B-S (Children) (Adoption Order: Leave to Oppose)
"63. The court in In re B-S went on to identify two essential requirements in a case in
which a court was being asked to approve a care plan for adoption or make a non-
consensual placement order or adoption order. First, there was a requirement for
proper evidence which must address all the options which were realistically possible
10
and must contain an analysis of the arguments for and against each option. Secondly,
there must be an adequately reasoned judgement. At para 43 the court drew
attention to what had been said by McFarlane L J in
para 50: the judicial task was to undertake a `global, holistic evaluation of
each of the
options available for the child's future upbringing before deciding which of those
options best meets the duty to afford paramount consideration to the child's welfare'.
64. We respectfully agree with the approach of the Court of Appeal in respect of
these essential requirements ..."
[14]
In North Lanarkshire Council v KR [2018] CSIH 59, the Inner House recalled a Sheriff's
interlocutor (upheld by the Sheriff Appeal Court) where the Sheriff refused to grant a
permanence order with authority to adopt, dispensing with parental consent. In relation to
the question of authority to adopt, the Sheriff found that the threshold test had been met
under section 83(2)(c) [applying section 83(3)] but further found that, as rehabilitation could
not, at that stage, be finally ruled out, it could not be said that the order sought was
necessary. At paragraph 61, et seq, Lord Menzies, delivering the judgment of the First
Division stated:
"61. ... In the present case, the sheriff found that that threshold test, and the further
threshold test set out in section 83(2)(c) of the 2007 Act, had been met. No issue is
taken in this case with his decisions in these respects.
62. The issue in the present case is whether the sheriff erred in his approach to the
considerations in section 84(4) and (3) of the 2007 Act. The threshold test having been
met, the court requires to consider what order (if any) should be made to safeguard
and promote the welfare of the child throughout childhood [section 84(4)] (and
indeed throughout her life see section 14), and whether it would be better for the
child that the order be made than that it should not be made [section 84(3)].
63. This is an exercise which involves a holistic, global evaluation. However, there is
a risk in this difficult area of the law of paying lip service to phrases or shorthand
terms without considering their purpose, what they truly mean, or what they require
for application in practice. `Holistic evaluation' and `nothing else will do' are two
such phrases which have found themselves used repeatedly in the recent case law in
this area. We do not suggest that they are wrong, nor do we disagree with their use,
but their context must be kept in mind. Mere repetition of the phrases does not
ensure that the appropriate exercise is being carried out.
11
64. Once the sheriff has decided that the threshold tests in sections 84(5)
and 83(2) have been met, it is clearly the case that a child will not be returned in the
near future to live with the person who has parental rights with regard to the
child. That being so, the court requires to consider what are the various options
available for the care of the child. Having identified the various options, the court
then requires to carry out an assessment of the proportionality of each of these
options. This will involve an assessment of the practicality of each option, and the
possible benefits and disbenefits to the child's welfare of each option. This is an
exercise which is looking to the future, but which is informed to an important extent
by findings in fact relating to past and present facts and circumstances, because
future assessments cannot be based merely on hope or speculation but must be
grounded in sufficient findings-in-fact of what has happened or is now happening.
65. `Holism' is `the tendency in nature to produce wholes from the ordered grouping
of units' (Shorter Oxford English Dictionary). The evaluation which is required is not
merely an exercise in ticking boxes, but an assessment of the whole merits and
demerits of the various options, taking into account all the circumstances but with
the paramount consideration of safeguarding and promoting the welfare of the child
throughout the child's life.
66. The phrase `nothing else will do' first arose in this context in In re B (A child),
where Baroness Hale of Richmond observed at paragraph [198]:
`Nevertheless, it is quite clear that the test for severing the relationship
between parent and child is very strict: only in exceptional circumstances and
where motivated by overriding requirements pertaining to the child's welfare,
in short, where nothing else will do.'
.....
paragraphs [68]/[69]:
`The phrase is meaningless, and potentially dangerous, if it is applied as some
freestanding, short cut test divorced from, or even in place of, an overall
evaluation of the child's welfare. Used properly, as Baroness Hale JSC
explained, the phrase 'nothing else will do' is no more, nor no less, than a
useful distillation of the proportionality and necessity test as embodied in the
Convention and reflected in the need to afford paramount consideration to
the welfare of the child throughout her lifetime... The phrase 'nothing else
will do' is not some sort of hyperlink providing a direct route to the outcome
of a case so as to bypass the need to undertake a full, comprehensive welfare
evaluation of all of the relevant pros and cons...
[69] Once the comprehensive, full welfare analysis has been undertaken of
the pros and cons, it is then, and only then, that the overall proportionality of
any plan for adoption falls to be evaluated and the phrase `nothing else will
do' can properly be deployed. If the ultimate outcome of the case is to favour
12
placement for adoption or the making of an adoption order it is that outcome
that falls to be evaluated against the yardstick of necessity, proportionality
and `nothing else will do'.'
...
69. We do not seek to suggest any disagreement with any of the dicta quoted above.
We agree that the test for severing the relationship between parent and child is very
strict and properly so. But it is not an insurmountable test; where a court has
identified all the available options for the care of a child, and carefully assessed the
merits and demerits of all of these, and concluded that a permanence order with
authority to adopt is the option which best safeguards and promotes the welfare of
the child throughout the child's life, then that is the order which the court must
make.
...
70. There are many factors and circumstances which a court will require to consider
and assess in reaching a decision as to what order, if any, best promotes the welfare
of the child throughout the child's life. We do not consider that it would be helpful to
attempt to list all these factors, many of which will vary from case to case. However,
one factor which, it seems to us, will be present in very many cases is the need to
reach a decision which avoids unnecessary delay. Cases involving the possible
severance of the relationship between parent and child will often involve difficult
decisions, but they are decisions which the court must make. A decision which
results in further protracted procedure being necessary will seldom promote the
welfare of the child throughout the child's life."
[15]
At paragraph [77] the
First Division went on to endorse the Extra Division's
observations in TW v Aberdeenshire Council 2013 SC 108 regarding consideration of possible
rehabilitation of the child into the care of the natural parent:
"... A vague hope of the possibility of maintaining some unspecified kind of
relationship between a child and her natural parents from whom she has had to be
taken into care shortly after birth is not an appropriate basis on which to disrupt the
emotionally stable conditions in which a child is and has been residing with foster
parents with a view to adoption."
[16]
In LO v N [2017] CSIH 14, the mother of a child appealed against the decision of a
Sheriff making an adoption order where the Sheriff, in making that order, had dispensed
with the mother's consent under section 31 of the 2007 Act. The Inner House considered
Lord Reed's judgment in S v. L. In relation to the
requirement for proper evidence which
13
must address all the options which were realistically possible (Fife Council v M
, discussed
above), in delivering the Extra Division's judgment, Lady Clark stated:
"21. In the present case, we understand from counsel for LO that submissions were
made to the sheriff to the effect that drastic intervention by granting adoption was
not necessary as LO did not seek to disturb the stable home of E. Less drastic
intervention which would preserve the stability of the child and give parental rights
and responsibilities also to N and C could be achieved by a Residence Order
invoking the provisions in section 11 of the 1995 Act. ... We consider that section
11(1) is framed in terms sufficiently broad to give the court power in adoption
proceedings to make such an order under section 11 of the 1995 Act or such an order
could be made in separate proceedings raised for that purpose."
[17]
Finally, in the case of West Lothian Council v MB [2017] UKSC 15, Lord Reed (with
whom the other Justices agreed) made some observations about a "Judge's function" when
determining a threshold test, in that case section 84(5)(c )(ii) of the 2007 Act. Lord Reed
emphasised that the judge, in determining the threshold test, was the primary decision
maker and is wholly responsible for deciding issues on the basis of their own findings on the
evidence, rather than unresolved doubts, allegations or suspicions. Further, in relation to
the question of future harm, Lord Reed cited Lord Hope's `golden rule', namely: "the golden
rule must surely be that a prediction of future harm has to be based on facts that have been
proved on a balance of probabilities."
(
Re J (Children) (Care Proceedings: Threshold Criteria)
[18]
Drawing these threads together a, non-exhaustive, number of principles can be
identified in relation to the interpretation and application of the relevant statutory
provisions. I have sought to apply these principles in reaching my judgment below.
1.
When making decisions in cases seeking permanence or adoption orders
under the 2007 Act a judge can be required to make a number of different decisions.
The nature of those decisions can, and has, been categorised as decisions applying a
14
"threshold test" and decisions that have at their core the welfare of the child; the
latter described variously by Lady Hale and Lady Smith as the application of the
"paramountcy principle" or the "welfare ground", under reference to the well
establish statutory language of the welfare of the child being the paramount
consideration. I will use the term "welfare ground". Examples of the threshold test
include section 84(5)(c)(ii) (likelihood of serious detriment) and dispensing with
parental consent on the basis that the parent is unable, satisfactorily to discharge
their parental responsibilities or exercise their parent rights and is likely to continue
to be unable to do so (sections 31(4) and 83(3), the "incapacity ground" as per Lady
Smith in S, Petitioner). Examples of the welfare ground include whether the court
should grant a permanence order per se, make provision for authority to adopt within
a permanence order, make an adoption order per se, or dispense with parental
consent where the welfare of the child requires it (sections 31(3)(d) and 83(2)(d)).
2.
In relation to the application of the threshold test, the court is engaged,
essentially, in a fact-finding exercise and is a matter of judgement, driven very much
by the facts of the individual case; for example, whether the child's residence with a
relevant person is, or is likely to be, seriously detrimental to the welfare of the child
(section 84(5)(c )(ii)). At the stage of deciding whether or not a threshold test is met,
article 8 ECHR has no part to play.
3.
In relation to the application of the welfare ground, the court requires first to
determine what, as a matter of fact, safeguarding and promoting the welfare of the
particular child involves and, looking to the future, will involve, having regard to all
the circumstances (including, where the court is coming to a decision relating to
adoption, the matters set out in section 14 of the 2007 Act). To that extent, it too
15
involves an initial fact-finding exercise. Thereafter, the court must go on to
undertake a global, holistic evaluation of
each of the options available for the child's
future upbringing, carefully assessing
the merits and demerits of
those options,
before deciding which of those options
best safeguards and promotes the welfare of
the child
; and do so by way of an adequately reasoned judgment. I
f the court is
satisfied that the welfare of the child requires the order sought, or a less drastic
intervention, is necessary to safeguard and promote the welfare of the child, the
court has no choice in the matter, that is the order the court must make.
Accordingly, article 8 considerations come into play when reaching decisions
whether or not the welfare ground is established.
4.
More particularly, in relation to dispensing with parental consent, the welfare
grounds apply only where the incapacity grounds do not. Moreover, i
t is only
necessary to go on to consider the welfare ground in any case after a decision has
been made that the incapacity ground is not met. The incapacity ground and the
welfare ground are alternatives.
5.
Further, a decision to dispense with parental consent on a welfare ground is a
decision that falls within the scope of section 14. Accordingly, the court must regard
the need to safeguard and promote the welfare of the child throughout the child's life
as the paramount consideration (section 14(3)) and must have regard to the specific
matters listed in section 14(4), namely (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 and linguistic background, and (d) the likely effect on the
child, throughout the child's life, of the making of an adoption order.
16
6.
Irrespective of whether a judge is making a decision under reference to the
threshold test or the welfare ground, the function of the judge is that of
the primary
decision maker and, as such, they are wholly responsible for deciding issues on the
basis of their own findings on the evidence; rather than unresolved doubts,
allegations or suspicions. The golden rule must surely be that a prediction of future
harm has to be based on facts that have been proved on a balance of probabilities.
7.
Whilst the test for severing the relationship between parent and child is very
strict, it is not an insurmountable test. Where a court has identified all the available
options for the care of a child and concluded that an order for adoption is the option
that best safeguards and promotes the welfare of the child throughout the child's life,
then that is the order the court must make.
8.
Section 11(1) of the Children (Scotland) Act 1995 is framed in terms
sufficiently broad to give the court the option in adoption proceedings to make an
order under section 11(2) of the 1995 Act where the court considers that an adoption
order is not required.
Undisputed factual background
The following background was not disputed.
Relevant general background
[19]
The respondents are a married couple. They have four children, P, J, N and EO. EO
is the youngest. EO's date of birth is 17 September 2016. The respondents and their children
all have dual nationality as Italian and Nigerian citizens. In 2016 their home in Italy was
badly damaged by an earthquake and they became homeless. The family were housed in
emergency temporary accommodation in Italy. The two older children, P and J, attended
17
boarding school in Nigeria. In November 2016 the respondents came to Glasgow with EO
and N. The second respondent's sister lived in Glasgow, and they stayed with her initially.
In December 2016 the respondents obtained a private tenancy. Shortly after the family's
arrival in Scotland steps were taken to have N enrolled in school. In January 2017 the
respondents removed P and J from boarding school in Nigeria and the children travelled to
Glasgow, where the respondents arranged for them to attend school. In late February 2017
the respondent's second eldest child disclosed to teachers and social workers that he had
been physically and emotionally abused by the respondents over a period of several years.
On 28 February 2017 Sheriff Cathcart made child protection orders under sections 37 - 39 of
the Children's Hearing (Scotland) Act 2011 in respect of all four of the respondent's children
and all four children were removed from the respondents' care. EO was placed in local
authority foster care. EO was, at that point in time, around five months old. EO has not
been in the respondents' care since.
[20]
Thereafter, grounds of referral were prepared, and on 16 March 2018, after many
days of evidence, Sheriff McCartney found that the grounds of referral were established in
terms of section 67(2)(a), (b) and (c) of the 2011 Act in respect of P and J, and in terms of
section 67(2)(c) in respect of N and EO. The section 67 grounds are, respectively, (a) the child
is likely to suffer unnecessarily, or the health or development of the child is likely to be
seriously impaired, due to a lack of parental care, (b) a schedule 1 offence has been
committed in respect of the child (that is an offence mentioned in schedule 1 to the Criminal
Procedure (Scotland) Act 1995), and (c) the child has, or is likely to have, a close connection
with a person who has committed a schedule 1 offence.
[21]
Sheriff McCartney found P and J to be credible and largely reliable witnesses. The
Sheriff did not find the respondents to be credible witnesses. The Sheriff found the
18
respondents had assaulted and abused P and J in both Italy and Scotland. The Sheriff
described the evidence of abuse that she heard as "overwhelming", and as being:
"so clear and strong that in my view it would not be possible to reach any conclusion
other than to be satisfied not only on the balance of probabilities but beyond
reasonable doubt that that [P and J] were subjected [to] assault by both parents."
[22]
The Sheriff found the following supporting facts established:
"4. Between around March 2013 and December 2016, while he was living or
spending holidays in Italy, [the respondents] wilfully ill-treated [J]. For example:-
(a) On numerous occasions, [the second respondent] punched [J] on the face back
and chest causing him pain.
(b) On numerous occasions, [the first respondent] slapped [J] on the face and back
causing him pain.
(c) On one occasion, [the second respondent] struck [J] on his back and shoulder with
a length of wood causing him pain.
5. Between around March 2013 and December 2016, while he was living or
spending holidays In Italy, [the respondents] assaulted [J] to his bodily Injury. For
example:-
(a) On numerous occasions [the second respondent] slapped [J] on his face,
back and arms causing bruising.
(b) On one occasion [the second respondent] struck [J] on his finger with a
length of wood causing the nail to break.
6. Between around May 2011 and July 2013, while he was living in Italy, [the
respondents] wilfully ill-treated [P]. For example:-
(a) On numerous occasions, [the second respondent] slapped [P] on the face
and punched him on the body causing him pain.
(b) On numerous occasions, [the first respondent] kicked [P] on the legs
causing him pain.
7. On one occasion between May 2011 and 2013 when he was living In Italy, [the
second respondent] assaulted [P] by punching him on the face, hands and chest and
thereafter striking him once with a wardrobe door injuring his knee and elbow.
8. Between 26th January and 28th February 2017 in Glasgow, [the first respondent]
wilfully ill-treated [J]. For example:-
(a) on or around 20th February 2017, [the first respondent] slapped [J] on his
face causing him pain.
(b) on or around 26th February 2017, [the first respondent] slapped [J] on his
back causing him pain.
19
9. On or around 24th February 2017, within the family home, [the second respondent]
assaulted [J] by punching him on the face and back several times causing a cut to his
lip.
10. On or around 26th January 2017 within the family home, [the second respondent]
wilfully ill-treated [P] by slapping him on the face causing him pain.
11. As a result of believing that [P] and [J] are being sexually abused by others or are
sexually abusing each other, [the respondents] have engaged in inappropriate and
harmful behaviour towards [P] and [J] that is likely to impact on their emotional
welfare and development and has caused unnecessary suffering. For example:
a) Since around January 2012, in Italy and [i]n Glasgow [the first respondent]
has inspected [J's] buttocks by pulling apart the cheeks of his bottom and
inspecting his rectal area.
b) On 27th February 2017 [the first respondent] told [J] that she would know
when he came home from school if he had been abused and if he had she
would kill him and bury him.
c) On 27th February 2017 [the second respondent] told [J] that he knew he had
been abused and that he was no longer his son and after school on 28th
February 2017 he should not come home.
(d) [the respondents] have told [J] that it is because he is letting others abuse
him that [N] has health problems (he has Down's Syndrome).
(e) Most of the Instances of ill-treatment and assault of [P] and [J] by [the
respondents] described in statements of fact 4 to 9 above follow on from a
denial by [P] and [J] that they are being abused, or are abusing each other.
12. [the respondents] have no insight into the impact of their behaviour on the
children.
13. [P] and [J] have suffered emotional harm as a result of the violent, inappropriate
and harmful behaviours exhibited within the family and perpetrated against [P] and
[J].
14. Supporting facts 4, 6, 8, 10, and 13 demonstrate that offences of wilful ill-
treatment of a child under the age of 16 in a manner likely to cause unnecessary
suffering or injury to health in terms of Section 12 of the Children and Young Persons
Act 1937 have been committed in respect of [J] and [P] by [the respondents]. These
are offences mentioned in Schedule 1(2) to the Criminal Procedure (Scotland) Act
1995.
15. Supporting facts 5, 7 and 9 demonstrate that offences of assault involving bodily
Injury have been committed against a child under the age of 17, namely [J] and
[P], by [the second respondent]. These are offences mentioned In Schedule 1(3) to the
Criminal Procedure (Scotland) Act. 1995.
16. EO has a close connection with [the respondents]."
20
[23]
The respondents did not appeal the sheriff's decision. Notwithstanding, the
respondents denied and continue to deny that they committed the acts detailed in the
supporting facts found established by the Sheriff. I proceed on the basis of the supporting
facts found established by the Sheriff.
[24]
On 14 May 2018 the Children's Hearing made the respondents' three younger
children, including EO, subject to compulsory supervision orders (the respondent's oldest
child no longer being subject to the jurisdiction of the Children's Hearing). The
respondents' appeal against those orders was refused by Sheriff Mackie in June 2018 (I note
that the section 17 report, appears to misreport this appeal as being an appeal against the
finding of the grounds of referral established).
[25]
The respondents were prosecuted in the Sheriff Court for assaulting their two older
children whilst in Scotland and between 1 January 2017 and 28 February 2017. On
8 November 2018 they were acquitted after the respondent's oldest child, who had
previously spoken to the assaults, retracted his evidence at the respondents' trial, and the
prosecutor decided not to lead any further evidence.
[26]
Following their acquittal, at a hearing on 28 January 2019, constituted at the
respondents' request, the Children's Hearing continued the compulsory supervision orders.
The respondents' appeal against that decision was refused by the Sheriff Cameron on
7 March 2019, and a further appeal against that decision was refused by an Extra Division of
the Inner House on 19 November 2019 (LO and EO v Children's Reporter [2019] CSIH 55).
Lord Malcolm's delivering the Extra Division's judgment observed:
"At the criminal trial one of the boys did not repeat his evidence as to the assaults,
but this does not remove the earlier establishment of the grounds for referral, nor
take away any cause for concern in respect of the children's welfare. [The eldest
21
child's] retraction meant that the evidence of [the second child] would be
uncorroborated and this resulted in the acquittal. It is relevant that [the second child]
remains fearful of his parents and does not wish to return to them. The children's
hearing retained a jurisdiction and a responsibility to consider and keep the
children's welfare in the forefront. Notwithstanding the parents' acquittal it was
entitled to reach the view that compulsory protective measures were still required."
[27]
On 18 June 2019 an appeal against a further decision of the Children's Hearing dated
13 May 2019 was allowed by Sheriff Reid in respect of N and EO. The sheriff directed the
Children's Hearing to hold a review of the compulsory supervision orders. In his note to his
interlocutor the Sheriff queried whether the children were habitually resident in Italy at the
commencement of the referral proceedings. At a children's hearing on 18 July 2019 the
respondents argued for the first time that the Children's Hearing did not have jurisdiction.
The Children's Hearing disagreed. It determined that it had jurisdiction, deferred making a
substantive decision to allow appointment of an independent person to carry out a
parenting assessment (the respondents having declined two offers of a parenting assessment
by FACS [Family Assessment & Contact Service], and continued the compulsory
supervision orders.
[28]
On 2 September 2019 a Permanence Review in relation to EO recommended that
adoption was the best route to secure EO's long-term needs.
[29]
At the children's hearing on 28 October 2019 the respondents renewed their
submission about jurisdiction. By this time the Children's Hearing had received written
advice from the National Convener of Children's Hearings Scotland (2011 Act, section 8).
The National Convener advised that his view was the children had been habitually resident
in Scotland on 7 March 2017. The Children's Hearing agreed with that advice. The
respondents walked out of the hearing early. The Children's Hearing continued the
compulsory supervision order. The respondents appealed. The appeal was heard by the
22
Sheriff, and on 16 January 2020 Sheriff Kelly refused the appeal. The respondents did not
appeal against that decision.
[30]
In around February 2020 the respondents returned to live in Italy. The respondents'
three youngest children, including EO, remained accommodated in Scotland.
[31]
In July 2020, the Central Authority in Italy informed the Central Authority in
Scotland that the respondents had asked the Juvenile Court of Ancona to request the
Scottish courts in terms of Article 15 (of Council Regulation No 2201/2003, 27 November
2003 concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility) to transfer jurisdiction in the
proceedings relating to the respondents' three youngest children to Ancona. On 7 December
2020 the Juvenile Court declined to make such a request. By letter of 10 February 2021, the
Italian Central Authority sent a copy of the court's judgment to the Central Authority in
Scotland. In that judgment the court determined that it would not be in the best interests of
the respondents' three youngest children to request that the proceedings be transferred to
Italy from Scotland. It observed that over a lengthy period the proceedings in Scotland had
"adopted the most appropriate measures in the best interests of the children, taking into
account the dangerous situations reported." It noted that over the years the respondents
had not always acted straightforwardly or honestly with the Italian authorities.
[32]
On 20 September 2021, a Glasgow City Council Adoption Panel took place, and the
petitioner was formally matched with EO and a recommendation for that match made. On
8 October 2021 the Authority Decision Maker agreed with the recommendation for matching
EO with the petitioner.
[33]
On 19 November 2021 the Children's Hearing varied EO's compulsory supervision
order so that his residence was changed from his then foster carer to the petitioner, as a
23
foster to adopt carer. In reaching its decisions the Children's Hearing also heard argument
regarding jurisdiction and transfer of the cause to Italy. The respondents' appeal against
that decision was refused by Sheriff Divers who held that the Children's Hearing were
entitled to find that they had jurisdiction and decline to make the transfer of proceedings to
Italy. The respondents appealed Sheriff Diver's decision by way of Stated Case to the Inner
House of the Court of Session, who, on 22 November 2022, found that Sheriff Divers had not
erred in law in refusing the respondents' appeal to him. That decision of the Extra Division
of the Inner House, reported at 2023 SC 39, brought that particular stream of litigation to an
end.
[34]
On 9 December 2021 EO left Glasgow with the petitioner, in who's care EO has
remained.
[35]
None of the respondents' three youngest children, including EO, have lived with the
respondents since the child protection orders were granted in February 2017. EO has not
had face to face contact with the respondents since 4 April 2020. EO remains subject to a
compulsory supervision order.
Section 17, Adoption and Children (Scotland) Act 2007 Report
[36]
Beyond the general, undisputed, factual background set out above, the report
addresses a number of matters. In terms of contact between the respondents and EO, both
respondents had contact with EO, initially five times a week; this being reduced to two
hours per day, four times a week. In general, initially contact went reasonably well, the
respondents were attentive to EO and responded to EO's emotional needs. Over time, the
respondents' attendance and time keeping waned. As noted above, in February 2020, the
respondents returned to Italy. The respondents gave no reason for their return and once
24
returned to Italy the respondents did not send regular communications to EO, for example
birthday and Christmas cards, and this remained the case at the date of the report. As at the
date of the report, the respondents last had video contact with EO on 18 March 2021.
[37]
As noted above, a number of attempts were made to engage the respondents in
comprehensive parenting capacity assessments with a view to safely returning the
respondents' children, including EO, to their care. These attempts both pre-dated and post-
dated the grounds of referral being established. Initially this was through the Family
Assessment and Contact Service and latterly though an independently appointed assessor.
The respondents failed to participate. In September 2019, the decision was taken to progress
to permanent care planning as the respondents continued to refuse to engage in any
meaningful way. The respondents were invited but refused to participate with the
permanence review. The report notes that the correspondence received from Marche
Juvenile Court from February 2021 stated that the respondents had also declined to
participate in a parenting evaluation in Italy. The report records that the petitioner was
identified for reasons of her child centred focus and recognising EO's needs as a person who
has experienced loss and separation. The petitioner being care experienced herself has
insight into EO's position and is able to empathise with EO and his history. The petitioner,
like EO, is of West African heritage and of a similar Christian faith as the respondents. EO
has thrived in the petitioner's care. EO has a secure and trusting relationship with the
petitioner. EO has good routines and boundaries for his emotional and physical wellbeing.
EO is doing well at school and in establishing friendships. EO has a range of social and
activity opportunities outside of school. He attends church and Sunday School.
[38]
EO is fit and healthy and meeting his developmental milestones. He experienced
early years of adversity and has experienced significant separation from his birth family,
25
siblings and foster family. He is settled and is forming positive attachments with the
petitioner. He presents as a happy, smiley, relaxed young boy. EO and his brothers N and J
are supported to be in touch with each other regularly. The petitioner encourages and
supports EO's sibling contact. The petitioner has facilitated direct contact with N and J.
[39]
Although now a matter for this court, the report addresses alternatives to adoption.
The circumstances of EO's removal from the respondents is noted above. There has been no
opportunity for rehabilitation, primarily because the respondents have refused to engage
with social work to address issues of their parenting and child safety. The respondents
returned to Italy in February 2020. In such circumstances, the report states that
rehabilitation would be a matter of serious detriment should EO be returned to the
respondents' care.
[40]
In terms of kinship care, EO has an aunt living in Glasgow (the second respondent's
sister). The aunt was contacted by social work, but the aunt stated that she was not in a
position to care for EO. In respect of family in Nigeria, the respondents have refused to
disclose details of any family members there. Continuation of the compulsory supervision
order has been assessed as not in EO's best interests. To do so would leave EO subject to
regular Children's Hearings, resulting in a lack of certainty for EO, which would be contrary
to EO's need for security and consistency to safeguard EO's emotional and physical
wellbeing. An order under section 25 of the Children (Scotland) Act 1995 would deny EO
the opportunity to be part of a stable family unit, again being contrary to EO's need for
security and consistency to safeguard EO's emotional and physical wellbeing. The
respondents have consistently stated that they do not support EO living outwith their care.
Although a Permanence Order would support a sense of security and belonging for EO
within a long-term foster care placement, it would maintain the requirement for ongoing
26
social work involvement. Adoption would provide EO with security and belonging over the
longer term. Given EO's younger age and stage of development adoption would provide
EO with the maximum opportunity to benefit from good quality parenting and normalise
EO's life within the life of a family who are able to undertake parental responsibilities and
rights with EO's best interests, in turn maximising his education and social development.
[41]
Although the petitioner gave evidence at proof, the report provides an independent
assessment of the petitioner and the proposed placement in the context of adoption. The
petitioner is of an age that the age gap between her and EO is no greater or smaller of the
normal age gap between a parent and child. The petitioner is financially secure and
independent. The petitioner owns her own house, which is suitable for her and EO to live in
and includes a secure garden. The house is well served with schools, nurseries, medical
services, and the like. As noted above, the petitioner shares the same ethnicity as EO. The
petitioner has a warm and positive personality, is quietly confident and has a playful sense
of fun and a good sense of humour. The petitioner is well integrated into her social network
and enjoys socialising with friends and family. The petitioner maintains good physical and
mental health and is fit and well. The petitioner has emotional intelligence and provides EO
with calm, attentive, thoughtful, consistent parenting and is able to set appropriate
boundaries, structure and routine for EO. The petitioner and EO share a warm, affectionate
relationship, with EO referring to the petitioner as "mom". The petitioner understands that
the granting of an adoption order will secure EO's future with her legally and that full
parental responsibilities will be transferred to her, which the petitioner hopes for and is
positively looking forward to.
[42]
The report concludes that the granting of an adoption order will provide EO with
security and stability throughout his childhood and beyond with the petitioner, where EO
27
will be able to grow up with the security of an adoptive family, having a strong sense of
belonging and identity, whilst also having knowledge of his birth family and maintaining
sibling relationships with his brothers in the UK. I accept the evidence regarding EO and the
petitioner in the section 17 report.
Reports of the Reporting Officer and Curator ad Litem
[43]
Sarah Trainer, Advocate, was appointed Reporting Officer and Curator ad Litem.
Ms Trainer prepared a principal report, dated 13 June 2023, and a supplementary report,
dated 30 September 2024. To the extent that the factual matters overlapped, the reports are
superseded by the proof. In terms of her investigations for the June 2023 report, the reporter
interviewed, amongst others, the petitioner and EO. Despite numerous attempts to contact
both respondents and their son, P, only the second respondent was prepared to respond to
the reporter. The second respondent told the reporter that following legal advice, they
would not discuss the case with the reporter.
[44]
The reporter met EO on 4 June 2023. EO volunteered to the reporter that his name
was [EO], his last name being the same as his brothers, but if he is adopted his last name will
change to that of his "forever mummy". Throughout her discussions with the reporter EO
referred to the petitioner as "mummy". EO made little reference to the respondents,
referring only to the fact that he had previously lived with his "mum and dad". It was
abundantly clear to the reporter that EO and the petitioner shared a very close personal
bond and that EO considered the petitioner's home to be very much his own home too.
[45]
The reporter spoke to the petitioner on 9 June 2023. The petitioner was aware that
that were delays in approving the transfer of EO into her care. The petitioner thought that
this made the transfer more difficult for EO than it would otherwise have been. The
28
petitioner described EO as having been in "shellshock" and having to "grieve" the loss of his
foster carer. Notwithstanding, with time and a focus on EO, the petitioner and EO began to
build their relationship and have not looked back since. Likewise, due to the delay in
transfer, EO had been late in starting at his new school. That had initially caused some
distress for EO, but with some changes to his care plan, EO now loved school and has many
friends. EO very much looked up to his siblings. He loved spending time with J and N. He
had not seen P since P's return to Italy. The petitioner saw support for EO from his siblings
as a particularly important part of his upbringing. Like EO, the petitioner is of Nigerian
origin. The petitioner explained that it was culturally typical to have a much wider family
than may be traditional in other cultures. The petitioner wanted EO to experience this. The
petitioner was "clear and emphatic" in expressing to the reporter that EO's siblings will
always be his family.
[46]
In preparation of her supplementary report, dated 30 September 2024, the reporter
spoke again to EO and the petitioner. EO told the reporter that he had two families, the
"first" comprised his mum, dad and three brothers, and that he now has a family with his
mummy (referring to the petitioner). In relation to the petitioner, EO told the reporter, "she
is my forever mummy and I'll live with her forever and ever", in what appeared to the
reporter a proud way. The reporter records that a few weeks before speaking to EO, EO had
contact with his brother, J. In terms of her further discussions with the petitioner, the
petitioner confirmed that EO had had at least two contacts a year with J and N. The
petitioner stated that EO is curious about his background and that it is something she will
discuss with him in an age-appropriate way as he grows older. The petitioner confirmed
she had obtained a passport for EO, and they had travelled together to France to visit the
petitioner's family. The reporter summarised, amongst other things, that EO had developed
29
his understanding of his circumstances, that EO continued to have a close relationship with
his brother J, and that the petitioner remained committed to ensuring EO maintains sibling
relations with his brothers, J and N
[47]
In terms of the other statutory matters upon which the reporter was required to
report, the petitioner's means and status are sufficient to enable the petitioner to maintain
and bring up EO suitably. EO has no rights or interest in property. The petitioner fully
understands the nature and effect of an adoption order. The reporter confirmed that EO
was removed from the respondents' care on 28 February 2017, resided with a foster carer
thereafter until placed with the petitioner on 9 December 2021. No payment or reward has
been given or agreed in relation to the adoption. EO's life has not been insured. The age
difference between the petitioner and EO is normal for the age difference between parents
and children. The reporter considered that there were no issues with the suitability of the
petitioner that might affect her ability to bring up EO. The reporter was clear that she
considered it would be better for EO that the court grant the adoption order than it should
not make the order. The reporter considered that adoption is likely to safeguard and
promote EO's welfare throughout his childhood; further, it was clear to the reporter that the
petitioner's commitment to EO's care is lifelong, thus safeguarding and promoting EO's
welfare throughout his life.
[48]
The petitioner's birth parents are Nigerian. The petitioner was born in mainland
Europe and continues to have family members there. The petitioner is a practicing Christian
and attends church with EO.
[49]
Whilst the reporter concluded that EO was too young to fully understand the legal
consequences of adoption, it was abundantly clear to the reporter that EO wished to remain
in the care of the petitioner.
30
Evidence at proof and preliminary assessment thereof
For the petitioner
[50]
Affidavits were lodged on behalf of the petitioner and the other witnesses led on her
behalf. Counsel for the petitioner called his witnesses, had them adopt their respective
affidavits, and thereafter the witnesses were available for cross-examination. I have
reviewed these affidavits in preparing this opinion. In this opinion, however, I make
reference to them only insofar as they have a direct and material bearing on my decision
making.
The petitioner
[51]
The petitioner adopted her affidavit. This records, in brief, that the petitioner is care
experienced herself having lived with foster parents and remained in contact with them
until they died. In the early months of EO living with the petitioner things were difficult for
EO, with him suffering emotional outbursts at school and suffering disturbed sleep but
things settled down from March 2022. EO now enjoys the social interaction that school and
his extra-curricular activities provide. These includes playing the drums, kung-fu classes,
basketball and church/Sunday school. Interaction with social work can lead to EO becoming
emotional and dysregulated. EO has visited the petitioner's wider family in France, and he
is able to distinguish between the petitioner's various family relations. EO identifies
strongly with the petitioner's family as his own. He refers to himself using the petitioner's
surname. EO is very loving towards the petitioner, and the petitioner and EO share a close
relationship. EO looks to the petitioner for support. EO does not often speak of the
31
respondents. EO continues to have a positive relationship with his siblings J and N and has
travelled to see them on a number of occasions.
[52]
The petitioner was cross-examined by the first respondent. Whilst I accept that
relevant cross-examination at a proof might be a challenging undertaking for a party
litigant, the reality is that much of the first respondent's questions where of dubious
relevance to the question before me. That said, the petitioner appeared to consider the first
respondent's questions and answer them thoughtfully. The first respondent asked how the
petitioner would parent EO if she had no children of her own. The petitioner explained that
she had lived with EO for nearly three years, and she knew his likes and dislikes. The
petitioner confirmed that she had also been given training and information about how to
understand and care for children who had suffered traumatic experiences in childhood. The
first respondent asked the petitioner why the petitioner wanted to change EO's history. The
petitioner explained that she did not want to do this, but that she did want EO to be able to
use her surname so EO could be her son. The first respondent asked the petitioner what she
had told EO about why EO was not with the respondents. The petitioner stated that she told
EO that his parents had hurt his brother and that there was a concern by social work that he
would not be safe if he stayed with his parents. The petitioner was asked a number of
questions relating to the criminal proceedings against the respondents (referred to above).
The petitioner was aware that the allegations were denied by the respondents. It was clear
from the petitioner's answers that whilst she was aware that the respondents had been
acquitted, the petitioner was largely unaware of the circumstances, had no direct knowledge
herself and, insofar as she was able to answer the questions put to her, was relying on what
she had been told by the social work department. The petitioner confirmed in cross-
examination that she opposed direct contact between EO and the respondents, for the
32
reasons set out by her in her affidavit, principally that the strength of the respondents'
opposition to adoption, the history of confrontational behaviour on the part of the
respondents, the respondents' continued denial of causing harm to EO's siblings and that,
against that background, she is fearful that contact between EO and the respondents would
be very difficult to manage both on a practical level and in terms of EO's emotional welfare.
Although not cross-examined on the point, the petitioner was supportive of indirect contact
between EO and the respondents, provided it was not confusing for EO. The court
adjourned overnight during cross-examination.
[53]
The following morning the first respondent indicated that she was unable to
continue with cross-examination of the petitioner. The first respondent provided some
information about her medical condition. I accepted that this confirmed the first respondent
appeared to have a medical condition but did not suggest that the condition was such that
the first respondent was not capable of completing the petitioner's cross-examination. After
further discussions with the first respondent, including whether her Italian solicitor, with
the permission of the court, would be prepared to conclude cross-examination, which the
solicitor declined to do, the first respondent confirmed in response to express questions that
(1) she refused to continue with cross-examination and (2) she would not confirm what
further matters she wanted to cross-examine the petitioner about. Having carefully
considered all the circumstances before me, including that the respondents had a history of
seeking to delay proceedings in the absence of substantiated reasons, and balancing the
relative prejudices, in light of the first respondent's refusal, I ordered that the petitioner's
evidence be concluded. Finally, for completeness, my assessment of the petitioner was that
she was an impressive witness. She gave her evidence calmly and thoughtfully, seeking to
give meaningful answers to the questions she was asked, notwithstanding the fact that she
33
clearly had the intelligence to understand that many of the first respondent's questions bore
little relevance to the issue before the court. The petitioner is obviously an intelligent and
patient person. I accepted her evidence as credible and reliable.
John Burns
[54]
John Burns is an experienced social worker. He had prepared an affidavit and
adopted this in his evidence in chief. In his affidavit, Mr Burns makes reference to various
principal records and documents relating to social work involvement and decision making
in connection with the respondents' children and EO. Mr Burns co-authored the section 17
report referred to above, completing Part 1. Beyond that set out under reference to the
section 17 report, Mr Burns' affidavit stated that he first became EO's allocated social worker
in March 2018, just before the grounds of referral were established. The respondents were
resistant in cooperating with Mr Burns. Both respondents communicated well in English
with Mr Burns, both verbally and written. The respondents consistently refused to engage
with a parenting assessment, first with the social work department, then following a referral
to the Family Assessment of Contact Service, who closed their referral in August 2018, and
finally, despite initial agreement by the respondents, following a referral to the Centre for
Excellence for Looked After Children, when the respondents failed to attend any
appointments scheduled and then returned to Italy in February 2020. Following the
respondents' return to Italy it became "incredibly difficult" for Mr Burns to engage in
discussions with the respondents in any meaningful way about EO, with the respondents
being obstructive of any work Mr Burns attempted to do with them. Mr Burns had sight of
documents produced by an Italian court indicating that the respondents had been offered
the opportunity to participate in a parenting assessment in Italy. It was Mr Burn's
34
understanding that the respondents has declined to participate in an assessment. It was
Mr Burn's responsibility to arrange contact between the respondents and EO. Until June
2018 the respondents engaged well with contact with EO and EO had a good relationship
with the respondents, although he had no memory of living with them. From June 2018
there was a stark deterioration in the quality of contact. There was a lack of positive
interaction observed between EO and the respondents. Between June and December 2018,
the respondents attended 58 out of 120 arranged sessions. Throughout 2019, the
respondents attended 162 of 235 arranged sessions. In 2020, before returning to Italy, the
respondents attended 8 out of 45 arranged sessions. Latterly, the respondents often failed to
inform social work staff that they would not be attending contact, often leaving the children,
including EO, disappointed. When the respondents did attend contact, they could be highly
confrontational, often in front of the children, which led to the children becoming upset.
Following their return to Italy, the respondents told the Children's Hearing that they did not
want to have indirect contact with EO if they could not see him in person. Since February
2020, the respondents have not participated in letterbox contact with EO. By autumn 2019, it
was clear that the respondents had become intransigent and unwilling to work with the
local social work department or with the CELCIS appointed psychologist. By the time of the
Multi-Agency Permanence Review on 2 September 2019 it was clear there was no pathway
to rehabilitation of EO into the care of the respondents. At this point in time, Mr Burns had
also become involved in discussions about the suitability of the petitioner to become a
permanent adoptive parent for EO. Mr Burns states that he would have concerns about the
prospect of making post adoption contact between EO and the respondents a condition of
any adoption order. EO has not seen the respondents since February 2020 and as he gets
older, he would become far more aware of the high levels of conflict between the social
35
work department and the respondents. Mr Burns states that he considers the petitioner is
well placed to explain EO's history to him. Mr Burns states that he is unable to recommend
indirect contact between EO and the respondents. Again, the respondents have failed to
engage in indirect contact since February 2020, and it would not be in EO's best interest to
seek to establish a contact arrangement that the respondents are not committed to, being
interpreted by EO as a sign of rejection or abandonment and the consequential impact on
EO's emotional and psychological welfare.
[55]
Mr Burns also records in his affidavit that, in relation to EO's sibling N, following
N's reception into care, it was necessary for N to have 12 teeth removed. The dentist
involved in N's care stated that the poor condition of N's teeth arose from neglectful care
given whilst N lived with the respondents.
[56]
In cross-examination, the first respondent stated that she had questions for Mr Burns
but that she would wait until she had instructed a solicitor. I explained that I would not
delay proceedings and gave the first respondent five minutes to consider what she wanted
to do. The first respondent declined to ask any questions, and I therefore released Mr Burns
from the witness box.
Vivienne Bonnar
[57]
Ms Bonnar is also an experienced social worker. Ms Bonnar had prepared an
affidavit, and she adopted this as her evidence in chief. Ms Bonnar works as a team leader
and first became involved with EO in 2021 after the recommendation had been made for EO
to be adopted. EO had a complicated profile in terms of his ethnicity and ongoing family
relations. Ms Bonnar found the petitioner to be an impressive person throughout the process
of her assessment for adoption. The petitioner was very focused on EO and what would be
36
best for EO. In December 2022 Ms Bonnar visited the petitioner and EO at their home.
Ms Bonnar had not met EO before this but was able to spend a lot of time with the petitioner
and EO. Ms Bonnar considered the petitioner to be a good advocate for EO. The petitioner
had gone out of her way to receive training and access supports. The petitioner was good at
identifying EO's needs and considering how certain things might benefit EO. It was clear to
Ms Bonnar that EO was very close to the petitioner and Ms Bonnar observed warm
interactions between EO and the petitioner. The petitioner had a good balance of showing
warmth to EO but with appropriate boundaries. Ms Bonnar confirmed that, over time, the
petitioner has got to know EO's siblings, J and N, and was committed to maintaining EO's
relationships with his siblings. Ms Bonnar expressed the opinion that the petitioner was
well placed to promote EO's own unique identity, being care experienced herself and having
a wider Nigerian family. It was clear to Ms Bonnar that EO identified himself as part of the
petitioner's family. In terms of her own assessment, Ms Bonnar is very happy with the
standard of care being provided by the petitioner to EO. The petitioner promotes all aspects
of EO's development, including his education and social activities. The petitioner and EO
are well integrated into their local community, including their local church. The petitioner
promotes EO's interests and friendships. Ms Bonnar is wholly supportive of an adoption
order being granted. EO has thrived and developed since being in the petitioner's care. In
terms of post adoption contact, Ms Bonnar would be extremely concerned that the
respondents would use direct contact as a vehicle for undermining EO's placement and the
security EO has found there. In addition, Ms Bonnar has seen no evidence that the
respondents understand the importance to EO of meaningful letterbox contact. Ms Bonnar
was respectfully unable to recommend that any form of post-adoption contact [with the
respondents] would safeguard and promote EO's welfare throughout his life. Insofar as
37
known to Ms Bonnar, EO has not made any comments, or displayed any behaviour, whilst
living with the petitioner that would demonstrate a desire or a need for contact [with the
respondents] on his behalf. Further, Ms Bonnar believed that contact would be highly
detrimental to EO's welfare and could destabilise his placement with the petitioner.
[58]
As with Mr Burns, I gave the respondents the opportunity to cross-examine
Ms Bonnar. Again, the first respondent stated that she had questions for Ms Bonnar but
would wait until she had a solicitor. I gave the respondents five minutes to consider
whether they would ask Ms Bonnar any questions. The first respondent declined to ask any
questions and said that the witness could step down. I therefore released Ms Bonnar from
the witness box.
Sandra Francois
[59]
Ms Francois is also an experienced social worker. Insofar as relevant to this case, she
was employed by Coram Ambitious for Adoption. Her role included the recruitment and
assessment of prospective adopters, and it was through this role that she became involved
with the petitioner. Ms Francois had prepared an affidavit, which she adopted as her
evidence in chief. Ms Francois co-authored the section 17 report referred to above,
completing Part 2. In brief, Ms Francois' affidavit explained that the petitioner was first
allocated to her in July 2020, having been through part one of a two-part assessment.
Ms Francois met the petitioner at her home on one occasion and had 12 online sessions with
the petitioner. This was a consequence of the COVID restrictions. Throughout the
assessment process Ms Francois found the petitioner a very straightforward person. It was
clear to Ms Francois that the petitioner had thought long and hard about the prospect of
adopting a child and had fully prepared herself for becoming a parent. The petitioner had
38
been care experienced herself as a child and, in adulthood, had gone on to establish a
relationship with her natural father and stepmother. The petitioner was able to answer all
questions asked of her regarding her motivation. The petitioner was being assessed as a
single person. The petitioner had a very wide support network of family and friends, some
of whom Ms Francois met. Ms Francois was satisfied that the petitioner had a strong and
reliable support network around her. A report was completed by the petitioner's GP, which
raised no concerns. Ms Francois worked with the petitioner for "an incredibly long period
of time". Ms Francois found the petitioner to be warm, generous and giving. She was
playful and fun. The petitioner could be tenacious when she needed to be. The petitioner
was good at setting boundaries. The petitioner provided consistent care. The petitioner
took things in her stride and tended to remain calm. The petitioner had a strong Christian
faith and attended her local church, from which she and EO benefitted. Ms Francois
concluded that the petitioner was highly motivated, was looking forward to becoming a
parent and was aware of what a vulnerable child would need. Ms Francois was confident
the petitioner could manage possible difficulties should they arise. Ms Francois concluded
that the petitioner was independent, self-sufficient and could be a strong advocate for EO.
The petitioner was proactive in seeking advice or information that she needed. The
petitioner was approved as a prospective adopter in May 2021. Ms Francois and the
petitioner received information about EO in July 2021. Ms Francois and the petitioner
attended a lot of meetings, for example with EO's then foster carer and EO's nursery to get a
good idea of who EO was and his personality. Both Ms Francois and the petitioner
recognised that there was a complex picture of EO. The petitioner did a lot of work in
preparing for EO's arrival into her care, including understanding his likes and dislikes. The
petitioner decorated EO's room with a theme that was in keeping with EO's likes and
39
acquired some toys for EO. By the time of EO's arrival, the petitioner had everything ready
for him. The transition of EO from his foster carer to the petitioner took 13 days throughout
late November and December 2021.
[60]
Since EO has been in the petitioner's care, Ms Francois has visited them regularly.
Ms Francois' primary role is to support the petitioner. Ms Francois has visited when EO is
not present and also when EO is present, and Ms Francois is able to observe how EO and the
petitioner interact. By November 2023, when Ms Francois made a home visit, Ms Francois
saw a massive change in EO in terms of his presentation. EO now has a much better
understanding of his life story. He knows his mother and father live in Italy. He has a very
close relationship with his siblings J and N. Life is predictable for EO. Ms Francois believes
that EO has developed trust in the petitioner. EO is able to discuss his emotions. EO
identifies the petitioner as his mother and refers to her as "mum". It is clear to Ms Francois
that EO sees the petitioner as his safe person and her home as his safe place. The changes
Ms Francois has seen in EO over time lead her to the view that EO feels secure and safe in
the petitioner's care. The petitioner has been very positive in promoting EO's social life.
[61]
Ms Francois was made available for cross-examination. The respondents did not
cross-examine Ms Francois. The first respondent said that Ms Francois may be released
from the witness box.
David Stakes
[62]
Mr Stakes is also an experienced social worker. Mr Stakes had prepared and
affidavit, dated 26 February 2024, which he adopted as his evidence in chief.
[63]
Following the adoption of his affidavit the first respondent informed the court that
the second respondent was not present. The first respondent told me that the second
40
respondent had, only the day before, requested the day off, but his employer had refused.
The first respondent told me that it was only the day before that the second respondent
realised that the proof would continue to today. The court's interlocutor dated 2 August
2024, which had been intimated to the respondents' then agents, made it clear that the proof
had been fixed for eight days, including that day. Further, the court's interlocutor dated
19 September 2024, which had been intimated directly to the respondents personally, also
made it clear that the proof would call on that day. I did not consider the first respondent's
explanation to be truthful. I considered the second respondent to be in default. However,
given that the first respondent had, to that time, undertaken the significant majority of
communication with the court, I considered that there was little prejudice to the respondents
in taking the evidence of Mr Stakes. The first respondent thereafter requested that her
Italian solicitor, who had been present throughout the proof, ask questions of Mr Stakes.
Counsel for the petitioner opposed any motion to that effect. The solicitor did not have the
requisite rights of audience. In the circumstances, I refused the first respondent's request to
have her Italian solicitor cross-examine Mr Stakes. The first respondent thereafter moved to
continue the case until the following week. I refused that motion. The first respondent
declined to cross-examine Mr Stakes and Mr Stakes was released from the witness box. It
was clear to me from previous decisions of various courts, the affidavit of Mr Burns and my
own, by then, reasonably extensive interactions with the first respondent, including
observing her cross-examine the petitioner at proof, that the first respondent's command of
English was amply sufficient to allow her to cross-examine Mr Stakes and that the first
respondent was merely seeking to, yet again, procrastinate in respect of the proceedings.
[64]
Returning to Mr Stakes' affidavit, Mr Stakes became EO's allocated social worker in
April 2023. Before he assumed allocation, Mr Stakes had a detailed handover meeting with
41
Mr Burns. Since he became involved with EO, the respondents have not sought any
information from the social work department about EO or made any enquiry into how EO is
doing or about EO's health and wellbeing. Mr Stakes has sought by various means to
communicate with the respondents. Mr Stakes has tried to communicate with the
respondents, primarily by email, both directly and through the respondents' Italian legal
representatives. Mr Stakes makes reference to a letter dated 24 August 2023 he sent to the
respondents. Mr Stakes has received no response from the respondents to any
correspondence. Mr Stakes states that he is aware from his discussions with Ms Francois
that she too has tried to correspond with the respondents but has not received a response
from them. Mr Stakes' role as EO's social worker is to monitor EO's placement with the
petitioner. Mr Stakes visited the petitioner and EO in August 2023 and spent a couple of
days with them. Mr Stakes states that from his observations, EO is very comfortable in the
petitioner's presence and he looks to the petitioner as his primary caregiver. Mr Stakes was
impressed with the standard of care provided by the petitioner to EO. The petitioner
promotes EO's involvement in their local community through attending school, sports clubs
and church. The petitioner is mindful of promoting EO's sense of identity and has
undertaken work to help EO understand his background and history. The petitioner has
worked hard to promote EO's relationships with his siblings J and N. In October 2023, EO
and the petitioner travelled to see EO's brother N and Mr Stakes was able to spend a day
with the petitioner and EO at that time. The petitioner is a calm, thoughtful parent and is
very attuned to EO's needs and meets those incredibly well. The petitioner is child centred.
From his own observations, and from information he has received from the petitioner and
Ms Francois, Mr Stakes concludes that EO is progressing well and positively in all areas of
his development and his emotional maturity. Mr Stakes visited EO and the petitioner in
42
January 2024. Mr Stakes states that the visit went well and that EO appeared more relaxed
in his company. Mr Stakes discussed with EO the intention for EO to stay with the
petitioner and EO clearly expressed that he was happy with the petitioner and sees his
future life with her. EO had never raised any concern with Mr Stakes about living with the
petitioner and always spoke warmly about his relationship with the petitioner and their life
together. EO did not seek contact with the respondents and has not expressed curiosity
around seeing or speaking to them. During the visit, EO showed Mr Stakes a toy car that
EO said his parents (the respondents) had given him. Mr Stakes considered that the keeping
of the toy car in EO's toy box was clearly indicative of the petitioner's understanding of EO's
life story and his understanding of birth family in an adopted child's life. On a day-to-day
basis, EO identifies as the petitioner's son and as a member of the petitioner's wider family.
Mr Stakes expressed concern for EO's emotional wellbeing and general welfare should he be
required to move from the care of the petitioner. Mr Stakes confirmed that he and the social
work department had considered alternatives to adoption as part of EO's care planning,
including leaving EO in the Children's Hearing system and seeking a permanence order. In
May 2023, Mr Stakes attended a multi-agency LAAC review meeting regarding EO. That
meeting agreed that the then current plan for EO to be adopted by the petitioner should be
maintained.
Evidence for the respondents
The first respondent
[65]
At the outset of her evidence the first respondent stated that she required to go to a
notary to get an affidavit. Counsel for the petitioner submitted that he was content for the
first respondent to give her evidence orally and that he would cross-examine as appropriate.
43
The first respondent stated that she would be giving evidence against her will. Once again, I
formed the clear impression that the first respondent was seeking to delay proceedings. I
required the first respondent to give any evidence she wanted to give.
[66]
Much of the first respondent's evidence related to historical factual and procedural
matters, most of which were not in dispute, and which were irrelevant to the issues before
this court. However, in brief, the first respondent stated that all of her children were born in
Italy, it was where they called home. The first respondent and her family came to Scotland
because the second respondent's sister was there. They thought they would return to Italy
before six months once their home was rebuilt. One day J did not come home from school.
The first respondent went to the school. The first respondent spoke to the head teacher. The
head teacher explained that the first respondent needed to speak to a social worker. The
social worker explained that the respondents' children had been taken away. The first
respondent could not understand what was happening. At 9pm that night the police
attended at the respondents' house and removed EO from the respondents' care. The first
respondent expressed milk for three months for EO whilst EO remained in the care of the
social work department. The first respondent stated that she was told by the social work
department that if the accusations made were found not to be true, the children would be
returned to her care. The first respondent stated that she asked her child P what had
happened, and P said that nothing had happened.
[67]
The first respondent gave evidence about various court proceedings, without
distinguishing between these various proceedings, and without making it clear what she
sought the court to draw from this evidence. The first respondent gave evidence that "the
sheriff" said that the lack of parental care did not apply to N and EO. The first respondent
stated that P told the court he made up the story and that he wants to go home. The first
44
respondent made reference to various appeals arising from decisions of the Children's
Hearing. The first respondent also referred to a stated case from 2022. It is appropriate for
me to clarify at this stage a number of points arising from this part of the first respondent's
evidence. First, although it might be correct to state that no findings of wilful ill-treatment
or assault of EO were made by the Sheriff McCartney when finding the grounds of referral
were established in respect of EO, that is because the grounds were found established in
respect of EO by reason of the close connection between EO and the respondents. Sheriff
McCartney's decision makes this clear, and as noted above, Sheriff McCartney's findings
were not appealed. Secondly, it was in the separate and subsequent criminal proceedings, in
which the respondents were acquitted, and that P stated he had previously made up the
allegations against the respondents. Thirdly, the appeals referred to by the respondents
relate to the respondents' appeals of various decisions of the Children's Hearing in respect
of compulsory supervision orders relating to the respondents' children, including EO. None
of those appeals bear upon the issues before this court, nor the orders sought in the petition,
and are, accordingly, irrelevant to these proceedings.
[68]
The first respondent gave evidence that EO "is the love of my life". The first
respondent referred to a toy car, which, the first respondent said, EO does not allow anyone
else to take. The first respondent stated that the respondents had been stopped seeing EO
by the Children's Hearing and not because the respondents did not want to see EO. The
first respondent had spoken to J a few months before and J had told her that EO was "not
well kept" and that J had complained to the social work department about EO. The first
respondent accepted that the petitioner had been involved with EO since September 2021
and stated that the petitioner could be like an aunt but not an adopted mother. The first
respondent stated that EO has rights to have parents, brothers and uncles and aunties.
45
[69]
Counsel for the petitioner was succinct in cross-examination. The first respondent
stated as "not correct" counsel's proposition that EO would not be safe in the respondent's
care. The first respondent did not believe, as suggested to her, that EO was happy in the care
of the petitioner.
The second respondent
[70]
Prior to the second respondent giving his evidence, there was again a discussion
about the respondents' right to be represented by a lawyer and the respondents' challenge to
the jurisdiction of the Scottish Courts. I explained to the second respondent that the court
had to balance the rights and interest of various people in this case, including the
respondents' rights to be legally represented and also EO's rights. I explained to the second
respondent that the "no order principle" embodied within the 2007 Act provided a degree of
protection for the respondents' interests, irrespective of any evidence the second respondent
might choose to give. In balancing the various interests in the case, I invited the second
respondent to give any evidence he sought to give. The second respondent gave very
limited evidence. The second respondent explained the undisputed reasons for the
respondents coming to Scotland. The second respondent made reference to the criminal trial
and the respondents' acquittal, and to two appeals to the Court of Session. Neither of these
appeals were relevant to the proceedings before me. The second respondent requested that
the petitioner go to Italy to ask for adoption. Counsel for the petitioner did not cross-
examine the second respondent.
46
Dr Maurizio Pincherle
[71]
Dr Pincherle is a very recently retired Neuropsychiatrist, University Professor and
Honourable Judge of the Juvenile Court in Italy. He was also the Director of the Child
Neuropsychiatry Unit of the Local Health Authority of Macerata. The respondents had
attended at the Unit for a parenting assessment to be undertaken. Such an assessment had
been undertaken and a report thereof dated 17 October 2023 was lodged in process. An
English translation had been lodged by the petitioner at 6/16 of process. Dr Pincherle
explained that the assessment was undertaken in two parts. The first was a clinical
interview. Dr Pincherle had undertaken the interview. The second part was a standardised
clinical test on personality. The second part test had been completed by one of
Dr Pincherle's colleagues, Dr Sellitti. The first respondent asked Dr Pincherle to summarise
the conclusions of the assessment. Dr Pincherle explained that the respondents "have skills"
and are "perfectly capable of looking after children". The report itself states in respect of
both respondents that their "parenting skills appeared adequate and appropriate to
fostering a healthy upbringing for [their] children". Dr Pincherle confirmed that he had
nothing to add.
[72]
Counsel for the petitioner cross-examined Dr Pincherle. Counsel asked how
important it was for parents to be honest about their parenting history. Dr Pincherle stated
that the assessment shows truthfulness and that the respondents did not say anything
untrue. Counsel asked whether Dr Pincherle had taken a full history from the respondents
of their time in Scotland. Dr Pincherle confirmed that he had heard the "whole story".
Following an objection by the first respondent, which I repelled, counsel asked Dr Pincherle
to look at 6/205 of process, an Italian translation of 6/162 of process, the grounds of referral
and support facts found establish by Sheriff McCartney (as set out above). Dr Pincherle
47
confirmed that he had not seen the documents before and that they had not been brought to
his attention. Counsel put various paragraphs of the supporting facts to Dr Pincherle,
including paragraphs 4, 5, 6, and 11. Dr Pincherle confirmed that none of these facts had
been brought to his attention by the respondents. Dr Pincherle agreed that the supporting
facts gave rise to "extreme concern". Dr Pincherle explained that such concern arose from
the facts, especially the sexual abuse and especially in a family environment. Dr Pincherle
confirmed that if EO was returned to the care of the respondents, based on the findings, "of
course [EO was] at risk"; both a risk of physical harm and a risk of psychopathology. The
psychological harm for the "whole life". Dr Pincherle agreed with counsel, under reference
to the affidavit of John Burns, that the loss of 12 teeth by N was also a serious matter.
Counsel asked Dr Pincherle whether the information contained in the paragraphs from the
supporting facts referred to by him, caused Dr Pincherle to alter his evidence. Dr Pincherle
gave evidence that whilst they carried out a psychological assessment and clinical interview,
they did not look at the judicial situation. Dr Pincherle stated that the outcome of the tests
undertaken were not always true. Dr Pincherle confirmed that the paragraphs gave rise to
concerns and that the respondents may have difficulties managing children.
[73]
In re-examination Dr Pincherle confirmed that the respondents had informed him of
the accusations made but confirmed that he had received information orally and had not
seen the documents put to him in cross-examination. Dr Pincherle confirmed that the
respondents had told him they had been acquitted at trial in criminal proceedings following
one of the respondents' sons withdrawing allegations previously made.
48
Don Paul Mbole
[74]
Don Mbole confirmed his personal details and explained that he was a Parish Priest.
Don Mbole gave evidence that he had visited the respondents' home several times and that
he knew the respondents well. Don Mbole confirmed that the respondents' house was a
very big house with three bedrooms and quite a big garden. It was situated in a quiet place.
Don Mbole gave evidence that the respondents were a "normal family", that they were
"faithful" and attended religious services every Sunday. They participated in society. Don
Mbole gave evidence that he knew his people. Don Mbole stated that he had heard of
accusations and that in Italy the respondents had been acquitted of all charges. Don Mbole
stated that the respondents suffered anxiety from not having their children and that he
believed the children would be anxious with no parents.
[75]
In cross-examination, counsel asked Don Mbole whether he had seen any Scottish
legal documents relating to EO. Don Mbole stated that he was aware of documents and that
he was sometimes shown documents. Counsel ask Don Mbole to look at 6/205 of process
(the Italian translation of 6/162 of process, the statement of grounds and supporting facts as
found by Sheriff McCartney). Don Mbole said he was unable to read the document as he
did not have his spectacles.
Avvocato Renato Contoltti
[76]
The respondents' list of witnesses defined Avvocato Contoltti as the family advocate
in Italy since 2007. Avvocato Contoltti gave evidence regarding personal details and
professional standing. He explained that he had known the respondents for over 20 years
and had acted for the respondents regarding several aspects. Avvocato Contoltti gave
evidence that he had seen the respondents with their children of several occasions and that,
49
in response to the question of whether he was able to see if the children were well cared for,
Avvocato Contoltti stated "absolutely yes", "they like children". Avvocato Contoltti
confirmed that he had not heard of the respondents being subject to criminal proceedings in
Italy. He dealt with the criminal law and would have expected to know should there have
been any criminal law issues. Following the respondents return to Italy from Scotland,
Avvocato Contoltti was instructed to assist the second respondent in connection with a
disciplinary matter and, at that time, the respondents informed him about what had
happened in Scotland with the children. The first respondent, in somewhat leading
questions, put to Avvocato Contoltti that the children P and J had made up stories against
other pupils in 2017 and that the court found that they were telling lies. In response, I noted
Avvocato Contoltti's evidence as there were administrative proceedings in Italy that were
closed without follow up. The first respondent then asked whether Avvocato Contoltti was
aware of investigations that established children were lying being the same investigations as
in Scotland. Avvocato Contoltti reiterated that the case was closed and that issues referred
were declared unfounded.
[77]
In cross-examination counsel asked whether Avvocato Contoltti had seen Scottish
legal documents referring to EO. Avvocato Contoltti stated that some documents had been
brought to his attention, but he could not remember the content and could not remember
whether they related to events concerning the respondents' children.
P
[78]
P is the respondents' eldest child. An affidavit had been lodged on P's behalf, which
he adopted as his evidence. P reiterated that he had told lies in evidence before Sheriff
McCartney. In response to direct questions from Mrs Scott, who by this stage had been
50
instructed on behalf of the first respondent, P gave evidence he could not remember his
parents ever hurting him or J. P gave evidence that he and J had already made the
accusation in Italy, when he was younger.
[79]
In cross-examination, P denied he was telling lies in these proceedings and that social
workers had previously told him what to do. P gave evidence that social workers "offered
me stuff" to lie to Sheriff McCartney. P confirmed that his evidence was that social workers
bribed him to lie. Under reference to John Burn's evidence from his affidavit, P denied that
he had put pressure on J to have J change his story. P confirmed that he had lied previously
in Italy, he lied during a joint investigative interview and that he had lied before Sheriff
McCartney. J had also lied and continued to do so. There was no re-examination.
Counsellor Paola de Lisio
[80]
Sig.ra de Lisio is a counsellor, specialising in family actions. Sig.ra de Lisio had
prepared a written opinion for the court, together with an English translation (7/13 and 7/14
of process, respectively). Sig.ra de Lisio also gave oral evidence by remote link. The quality
of the remote link presented a number of difficulties in understanding some aspects of Sig.ra
de Lisio's evidence. One such difficult arose with differentiating Sig.ra de Lisio's evidence
where she was referring to cases concerning Italian children and other cases. Given that EO
is an Italian national it might be that the difficulty does not, in fact, arise in this case. That
said, my opinion should be read as a consideration only insofar as relating to the position of
a child of Italian nationality before a Scottish court.
[81]
What I state here is not a chronological record of the evidence; rather a summary of
the evidence as I finally understood it. I did not understand there to be any challenge to
Sig.ra de Lisio's status as a witness giving skilled evidence. From Sig.ra de Lisio's evidence,
51
both oral evidence and written opinion, I understood her to give evidence that in cases
concerning Italian children, for a Scottish adoption order to be formally recognised in Italy,
an Italian court must "verify" the foreign order, which involved an "assessment" by an
Italian court. There is no automatic recognition of the foreign adoption order. Recognition
of a Scottish adoption order by Italian court will be refused unless, in undertaking the
"assessment" the relevant grounds for adoption under Italian law are met. Italian Law No.
184 of 1983 sets out relevant test. On the basis of the evidence before this court, that test
appears to be materially or substantively similar to the test under the 2007 Act, subject to
two significant differences. First, Italian law appears to draw a distinction between "full"
and "simple" adoptions. "Full" adoptions severing bonds between child and natural parent;
"simple" adoptions not severing such bonds. No further clarification was given regarding
the status of the natural parent/child relationship in cases of "simple" adoption. Second, the
position of a single person adopting is materially different, and although adoption by a
single person is permissible, limitations exist. From Sig.ra de Lisio's oral evidence, it
appeared to be that single person adoption would be permissible, or was limited to, cases
where the child had been orphaned or where the child had a strong life bond with the
prospective adopter. Further, even where permissible, with a single adopter, only simple
adoption is permissible. Accordingly, it appeared to be Sig.ra de Lisio's opinion that a
Scottish adoption order made in favour of a single person that severed all ties with the
child's natural parents would not be recognised in Italy, a full assessment would be
required. The "assessment" considers whether there has been "abandonment" by the
natural parents. Abandonment, in this context, appeared to refer to an 'irreversible inability
of the natural parents to raise and care for the child owing to the parents' total inadequacy.`
52
To that extent it appeared to have a material or substantive similarity with the relevant
threshold test under section 31(4) of the 2007 Act.
[82]
Should a Scottish adoption order not be formally recognised by the Italian courts,
Sig.ra de Lisio's evidence was that EO would, in Italy, remain an Italian national, unless he
expressly renounced it, and the son of the respondents but whose family status under the
adoption order would not be recognised.
[83]
Sig.ra da Lisio gave evidence that in relation to Italian children, declaration of
enforceability must be through Ministry of Justice and Central Authority and thereafter to
the relevant court. Where a person from a country outside of Italy sought to adopt an Italian
child, the procedures set out in the Hague Convention 1993 on co-operation in respect of
inter-country adoption should have been followed. Reference was made to Article 2 and
thereafter Articles 14 to 23. Notwithstanding, although not having the benefit of full
discussion on the point, it appears far from clear that the Convention applies. Article 2
appears to be directed towards a specific set of circumstances. First, the Convention shall
apply where a child habitually resident in one Contracting State ("the State of origin"). That
would be Italy. In this case there has been a judicial finding, affirmed by the Extra Division
of the Inner House in LO v McGinley (Locality reporter manager) 2023 S.C. 39, that EO was
habitually resident in Scotland. Second, the Convention applies where the child has been, is
being, or is to be moved to another Contracting State ("the receiving State") either after his or
her adoption in the State of origin by spouses or a person habitually resident in the receiving
State, or for the purposes of such an adoption in the receiving State or in the State of origin.
The circumstances of EO's "move" to Scotland from Italy appear to fall outwith these
circumstances.
53
[84]
Sig.ra de Lisio also made reference to the Articles 36 and 37 of the Vienna
Convention on Consular Relations of 1963. Article 36, firstly, sets out the general
proposition that a state should be free to communicate with its nationals (in this case,
however, there has been no suggestion that the Italian Consulate was ever prevented from
speaking to either of the respondents or EO) and, secondly, addresses the situation where a
foreign national is in prison, custody or detention, which is plainly not relevant in the
circumstances of this case.
[85]
Article 37 provides the right for a foreign state to be informed where, amongst other
things, there has been the appointment of a guardian or trustee in the interests of a minor.
However, it is not clear whether Article 37 applies in circumstances of this case, being a
petition for adoption, but, in any event, Article 37 appears to expressly state that it is
without prejudice to the operation of laws and regulations of the receiving state (the UK). In
addition, I note that in 6/159 of process, the Glasgow City Health and Social Care
Partnership Assessment Plan, dated 30 October 2023, it is recorded on page 4 that the Italian
Consulate had been approached by Social Work to see if they could assist in engaging with
the birth parents however, they equally had challenges in corresponding with them.
Further, the Italian Consulate was aware of the proceedings as someone associated with the
Consulate attended at court during the proof, was appraised of the proceedings, but did not
appear to return at any point. Accordingly, any breach, if there is one, appears to be one of
form rather than substance.
[86]
Whether or not an Italian court would, in undertaking the relevant "assessment",
consider that the test for adoption was met, whether full or simple adoption, is not
determinative of the decision to be made by this court. As much was conceded by Mrs Scott.
It might, on one view, be a factor that the court weighs in the balance, along with all other
54
relevant factors, giving each an appropriate degree of weight, in undertaking the exercise of
a global, holistic evaluation of
each of the options available for the child's future upbringing,
carefully assessing
the merits and demerits of
those options, before deciding which of those
options
best safeguards and promotes the welfare of the child.
[87]
In cross-examination, counsel for the petitioner began his questions by asking Sig.ra
de Lisio if she agreed that whether or not an Italian court recognised an order of a Scottish
court would not, of itself, be a bar to a Scottish court granting an adoption. Mrs Scott
interjected to confirm that the proposition put by counsel for the petitioner was not in
dispute.
Julien Foster, Barrister
[88]
Mr Foster is an English barrister. He began practicing as a barrister in 1996.
Mr Foster specialises in family law. His particular interest is the law relating to children,
chiefly child protection. Mr Foster had provided an opinion, dated 7 October 2024, lodged
on behalf of the first respondent at 7/12 of process. Mr Foster was offered for cross-
examination, but that offer was declined. I therefore take Mr Foster's opinion as his
unchallenged evidence in this case. Mr Foster's opinion addresses adoption and alternatives
to adoption under the law of England. What follows is a summary of Mr Foster's opinion. I
have, however, considered its whole terms carefully.
[89]
For present purposes Mr Foster takes it that for all intents and purposes, an adoption
order in Scotland would carry the same implications as would an adoption in England
(citing, Cobb J in Re E (Scottish Adopters: English Adoption Proceedings) [2019] EWFC 9 ).
Mr Foster thereafter cites various English authorities, emphasising the "necessity" test. No
more need be said on adoption.
55
[90]
Mr Foster continues to examine alternatives to adoption. The first being a special
guardianship order ("SGO") (paragraph 3.16 et seq.). Mr Foster writes, under reference to
various cited authorities, that SGO's are intended to provide security for those children for
whom adoption is not suitable but who cannot live with their birth parents. There is no
statutory presumption that an SGO will be preferable to adoption in any given
circumstances. Each case must turn on its own facts, with the key question being which
order will best serve the welfare of the particular child. SGOs are usually granted in
circumstances where neither parent is able to care for the child and a family member has
been positively assessed, often within care proceedings. On occasions, Mr Foster has
encountered foster carers being appointed as special guardians. Mr Foster helpfully
includes a table highlighting the main differences between adoption and SGOs, cited from
some of the key differences with SGOs are (i) a child living with a special guardian remains
the child of the birth parent, (ii) an SGO ceases automatically when the child reaches 18,
unless terminated earlier, (iii) birth parents retain parental responsibilities but these, subject
to some significant exceptions, are subordinate to the special guardian's exercise, (iv) the
parental responsibilities vest in the special guardian are subject to some significant
exceptions (these are the corollary of (iii) and include those in relation to: removal from the
jurisdiction for more than three months, effecting a change of surname and certain decisions
permitting certain medical treatments), (v) ability of birth parents to apply for leave to seek
discharge of SGO, (vi) decisions regarding arrangements following child's death, (vii) the
absence of a requirement for leave in respect of applications by the natural parents in
connection with contact, "prohibited steps" and "specific issues", (viii) right of birth parents
to be called as respondents to certain future legal proceedings in relation to the child, and
56
(ix) a child under an SGO does not benefit from rules under intestacy in the event of the
special guardian's death).
[91]
Finally, Mr Foster turned to the option of child arrangement orders. These orders
regulate when and with whom a child is to live, spend time or otherwise have contact.
Mr Foster writes that most of the case law relating to child arrangements orders deals with
disputes between parents. The main difference between arrangement orders and SGOs is
that, under the former, the parents and carer, insofar as exercising parental responsibilities
was concerned, would be on equal terms, subject to any additional order made the court.
With an SGO, the special guardian holds exclusivity in the exercise of most parental
responsibilities.
Submissions
For the petitioner
[92]
Counsel for the petitioner provided a written submission, which he adopted and
made brief oral submissions in reply. Counsel moved the court to (i) grant the prayer of the
petition in terms of section 30 of the 2007 Act, (ii) make no order in respect of either face-to-
face contact or letterbox contact, and (iii) to terminate the compulsory supervision order in
place. Counsel addressed the relevant law and its application.
[93]
Counsel asked the court to accept the petitioner as a credible and reliable witness.
Little weight should be attached to the evidence of the respondents or their son, P. The
evidence of the social workers was unchallenged by the respondents, and counsel made
reference to various paragraphs of their respective affidavits. The evidence of Rev. Don
Mbole and Avvocato Contoltti was of little relevance.
57
[94]
Significant weight should be attached to the evidence of Dr Pincherle. In cross-
examination, it became clear that Dr Pincherle had not been shown the grounds of referral
and supporting facts. After considering the supporting facts, Dr Pincherle agreed that they
were extremely concerning and that EO's personal safety would be at risk if returned to the
respondents' full-time care. Dr Pincherle gave evidence that EO would be at risk
"psychopathology" and physical and mental harm if returned to the respondents. Little
weight should be attached to the opinions of Sig.ra de Lisio and Julien Foster. Neither were
determinative. Weight was placed on the establish grounds of referral and supporting facts.
[95]
The Reporting Officer and Curator ad Litem considered the adoption order sought
was likely to safeguard and promote the welfare of EO throughout his life and that it would
be better for EO that the court grant the adoption than it should make no order. It was not
necessary to attach any provisions to the adoption order. It was abundantly clear to the
reporter that EO wished to remain in the care of the petitioner.
[96]
In relation to the question of parental consent to the adoption order, on the basis of
the evidence before the court, the threshold test in section 31(4) of the 2007 Act was made
out and the court should dispense with the respondents' consent on the basis that they are
unable satisfactorily to discharge their parental responsibilities or exercise their parent rights
and are likely to continue to be unable to do so. Counsel specifically relied upon the
supporting facts, the respondents' failure to engage with social workers and several
parenting assessments, the respondents' refusal to engage with the reporter, the
respondents' declining and often confrontational attendance at the Children's Hearing and
at contact with EO, the respondents' declining real lack of curiosity and interest in EO's
welfare, the evidence of N requiring to have 12 teeth removed and the respondents' failure
to engage with EO's need for medical treatment.
58
[97]
If the threshold test under section 31(4) was not met, the respondents' consent to the
granting of the adoption order should be dispensed with under the welfare test in
section 31((3)(d), on the basis that EO's welfare required the respondents' consent to be
dispensed with. Counsel relied on those facts relevant to section 31(4) but, in addition,
under reference to the need to safeguard and promote the welfare of the child throughout
the child's life as the paramount consideration (section 14(3) of the 2007 Act), the reporter's
view that the adoption order is likely to safeguard and promote EO's welfare throughout his
life, as well as all of the evidence before the court considered holistically and globally.
[98]
Counsel also referred to the evidence relevant to the value of a stable family unit in
the child's development, the child's ascertainable views regarding the decision (taking
account of the child's age and maturity), the child's religious persuasion, racial origin and
cultural and linguistic background, and the likely effect on the child, throughout the child's
life, of the making of an adoption order, under section 14(4) of the 2007 Act, all of which I
will return to below.
For the respondents
[99]
Mrs Scott, for the first respondent, provided a written submission, which she
adopted, and amplified with further, brief oral submissions. It was not possible for counsel
to make detailed submissions on the evidence heard before her instruction in the case.
There was, however, ample material in the reports and productions to allow the court to
conclude that the petition should not be granted. Mrs Scott framed her submission as
questions for the court.
[100]
First, was EO's removal in violation of Article 8 of ECHR? Mrs Scott submitted that
EO's initial removal appeared to have been disproportionate and unjustified. The objective
59
was to protect EO from harm thought to have befallen P and J. The abrupt removal of a five
month old was not rationally connected. A less intrusive measure would have been
supervision of the respondents. The removal was traumatic for both EO and the first
respondent. The removal was exceptionally harsh and required exceptional justification.
The initial removal has cast a cloud over all that has followed.
[101]
Secondly, was EO's continued detention unlawful? This question was coloured by
the answer to the first question. There was a positive duty to reunify EO and the
respondents. The requirement for proportionality remained. The decision making with
regard to EO was formulaic and anodyne. The respondents maintained a high level of good
quality contact for a lengthy period. A parenting assessment could have been undertaken
with EO at home. As a matter of note the procedure occurred in violation of the Vienna
Convention on Consular Relations, 1963.
[102]
Thirdly, do the allegations provide a sufficient basis to conclude that the test under
section 31(4) is met? Allegations of physical chastisement or ill-treatment would not
necessarily provide a finding that a parent could not satisfactorily discharge parental
responsibilities or exercise parental rights. The question requires to be considered as to
whether the allegations were relevant and a sufficient reason for adoption of EO. EO was
not the recipient of the ill-treatment. There were no allegations of ill-treatment of N. P
returned to Italy with his parents and demonstrates satisfactory parenting. There were
positive comments regarding contact. The allegations required to be set in context. The
allegations remain disputed. P's position had changed and his position before the sheriff
was thereby "tainted".
[103]
Fourthly, does "welfare require" parental consent to be dispensed with? Making an
adoption order against the wishes of a parent is a very serious intervention in family life.
60
The test of "necessity" applied, "nothing less than adoption will suffice". Long term
removal will not necessarily mean adoption. The best interest of the child were paramount,
with two particular considerations (a) ties with the family be maintained unless particularly
unfit and (b) ensuring the child's development in a safe and secure environment.
[104]
Fifthly, how does the UNCRC bear upon the petition? The United Nations
Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 came into force on
16 July 2024. The court is bound to act compatibly with the UNCRC. The guiding principle
is that the best interests of the child is the "primary consideration" (Art 3). Mrs Scott also
referred to Articles 7, 8, 9 12 and 21, UNCRC. A Scottish adoption order would not be
recognised in Italy. The effect on EO's nationality, name and family relations would be
anomalous. Adoption would not confer on EO British citizenship. EO would remain an
Italian national and under the protection of the Italian Consulate.
[105]
Sixthly, has the test of "necessity" been applied? Mrs Scott made reference to the
cases of
In re B-S (Children) (supra)
and S v L (supra). I have discussed a number of the
principal cases concerning adoption above, including S v L and Fife Council v M (supra), the
latter citing both S v L and
In re B-S (Children). Mrs Scott also made reference to the
alternatives to adoption within Scotland, England (see opinion of Julien Foster, barrister)
and Italy. The Italian Courts had now accepted jurisdiction. Reference was made to 7/10 of
process, a decision of the Court for Minors of Ancona, dated 25 July 2024.
[106]
Seventhly, how do the provisions of section 14 of the 2007 Act bear upon the case?
Mrs Scott's submissions were largely limited to legal issues as representation was not
available earlier, but reference was made to a number of factors arising under sub-
paragraphs 4(a) to (d).
61
[107]
The second respondent made a very brief submission formally opposing the petition
but adding no further relevant detail.
Decision and reasons
Credibility and reliability
[108]
I have addressed this to some extent above in relation to certain evidence. In relation
to the social workers who gave evidence, that evidence was unchallenged. In any event, the
evidence of the individual social workers appeared mutually consistent and consistent with
the documentary evidence lodged. I accept the evidence of the social workers as credible
and reliable. I have already set out above a number of my conclusions about the petitioner's
evidence, and I reiterate that I accept the petitioner's evidence as credible and reliable.
[109]
Regarding the two reports prepared by the Reporting Officer and Curator ad litem,
the reporter's reports are thorough, considered and objective. The reporter does not over-
extend herself on conclusions drawn from her factual investigations. I have relied on these
reports.
[110]
The first respondent gave very little relevant evidence. I accept that the first
respondent might well have found the proceedings difficult and stressful and that a degree
of latitude should be afforded to her in such circumstances. However, I consider that parts
of the evidence demonstrate that both respondents have not always acted straightforwardly
or honestly and that this causes me to have doubts about my ability to rely on the evidence
of the first respondent. In this regard, I note the correspondence received from the Italian
Authorities referred to by (and lodged before) the Inner House in its opinion reported at
2023 S.C. 39, referred to above. The second respondent gave brief evidence, none of which
was relevant to the decision before me.
62
[111]
Dr Pincherle's evidence was somewhat unusual for the fact that he was called to
speak to certain conclusions reached following a parenting assessment (all as set out above).
When shown the supporting facts and asked to consider the evidence relating to N's dental
issues, Dr Pincherle's evidence appeared to take a volte-face. There is no suggestion before
me that Dr Pincherle was not appropriately qualified to give the opinion evidence he did. I
accept the oral evidence he gave. I reject, as he now appears to do, the conclusions set out in
the report lodged.
[112]
I acknowledge the evidence given by Don Mbole and Avvocato Contoltti. Little of it
appeared relevant. Where relevant, and subject to my earlier observation that some
evidence resulted from materially leading questions, I weigh it in the balance, without any
particular finding in relation to credibility and reliability.
[113]
I have discussed Counsellor de Lisio's evidence at some length above. There was no
challenge to her professional standing and capacity to give skilled evidence. I will return to
Sig.ra de Lisio's evidence below.
[114]
I have considerable reservations about the evidence of P. His overly excitable
demeanour when challenged in cross-examination caused me to have doubt about the
credibility of his evidence. I accept that I should be careful about conclusions drawn from
demeanour as I do not know how P usually presents. However, in addition, I considered his
evidence that social workers bribed him to lie to Sheriff McCartney very serious and without
any support whatsoever. It is also highly unlikely. It is also inconsistent with Sheriff
McCartney's finding that the evidence before the court, including P's evidence, was "so clear
and strong that in my view it would not be possible to reach any conclusion other than to be
satisfied not only on the balance of probabilities but beyond reasonable doubt." It is also
inconsistent with the evidence recorded in Mr Burns' affidavit that J reported that P had put
63
pressure on J to change his story. In the circumstances I am not prepared to accept P's
evidence as either credible or reliable.
[115]
Julien Foster's evidence was in the form of his written opinion. It was unchallenged
and I accept it insofar as relevant to the decision I am required to make.
Consideration of evidence relevant to section 31(4) of the 2007 Act
[116]
I start with the established grounds of referral and supporting facts. I accept that
insofar as relevant to EO the grounds of referral were establish by reference to EO as having
a close connection to the respondents, as opposed to being the direct victim of the harm
found to have been suffered, but the recognition in the relevant legislation of the need to
protect connected persons recognises risk to such persons and a need to protect such
persons from that risk. The nature of the acts detailed in the supporting facts are very
significant. They occurred over a sustained period from 2011 to February 2017. It is well
known that witnessing harmful behaviour perpetrated against another can be harmful. EO
was born on 17 September 2016 and was only five months old when removed from the care
of the respondents, so, perhaps fortunately, will have little, if any, direct memory of the
abuse. Further, Sheriff McCartney found that the respondents had no insight into the
impact of their behaviour on the children. As noted previously, Sheriff McCartney found
the evidence "so clear and strong that in my view it would not be possible to reach any
conclusion other than to be satisfied not only on the balance of probabilities but beyond
reasonable doubt." I acknowledge P's change of position and the respondents' acquittal at
trial as a consequence, but I also note the Extra Division's observations in LO and EO v
Children's Reporter, supra, at paragraph [7] (Lord Malcolm delivering the opinion of the
court) as referred to above at paragraph [26] (referred to above):
64
"At the criminal trial one of the boys did not repeat his evidence as to the assaults,
but this does not remove the earlier establishment of the grounds for referral, nor
take away any cause for concern in respect of the children's welfare. [The eldest
child's] retraction meant that the evidence of [the second child] would be
uncorroborated and this resulted in the acquittal. It is relevant that [the second child]
remains fearful of his parents and does not wish to return to them."
[117]
In addition, as referred to by John Burns in his affidavit, following his reception into
care, it was necessary for N to have 12 teeth removed. The dentist involved in the removal
of those teeth stated that the poor condition arose from neglectful care given whilst N was in
the care of the respondents.
[118]
This evidence is, prima facia, demonstrative that the respondents are unable to
satisfactorily discharge their relevant parental responsibilities and exercise their parental
rights for the purposes of section 31(4) of the 2007 Act, in particular those in respect of
safeguarding and promoting their children's including EO's, health, development and
wellbeing.
[119]
Following the reception of the children, including EO, into care, social work sought
to engage with the respondents in an attempt to undertake relevant parenting assessments
with a view to rehabilitating the children, including EO, back into the respondents' care.
Standing the nature and duration of the behaviours found to have occurred by
Sheriff McCartney, it was reasonable and appropriate that social work undertake these
assessments with the respondents before returning the children to their care. In response,
the respondents failed to engage in any meaningful way. The respondents failed to engage
with three separate attempts to undertake a parenting assessment, both pre and post the
grounds of referral being established. In response to a request by the respondents, and with
the respondents' express agreement, arrangements were made for an independent parenting
assessment. Again, notwithstanding their agreement, the respondents failed to engage with
65
the independent parenting assessment, returning abruptly to Italy, bringing the ability to
conduct a parenting assessment to an end. Mr Burns records at paragraph 19 of his
affidavit, under reference to documentation sent to the Scottish Central Authority, that the
respondents had, likewise, declined to participate in a parenting assessment in Italy
following their return.
[120]
Interactions with social work throughout this period, increasingly so as time passed,
were fractious and confrontational. Similarly, and no less relevantly, the respondents'
engagement with the Children's Hearing was similarly fractured and confrontational, with
the children's attendance often being excused and the police attending on occasion. In
addition, the respondents more generally failed to engage with social work, for example,
with reviews and permanence meetings.
[121]
Despite the difficulties with seeking to undertake a parenting assessment, social
work supported a significant contact regime between the respondents and EO. Initially
contact went well, although EO had no memory of living with the respondents. Contact was
initially set at two hours, five times per week to establish weaning. Contact was
subsequently reduced to four times per week, for two hours. From June 2018 there was a
stark deterioration in the quality of contact. Between June and December 2018, the
respondents attended 58 out of 120 arranged sessions. Throughout 2019, the respondents
attended 162 of the 235 arranged sessions. In 2020, before returning to Italy, the respondents
attended 8 out of the 45 arranged sessions. The respondents would often not inform social
work staff that they would not be attending contact, leaving the children, including EO,
disappointed. Since returning to Italy in February 2020, leaving their children, J, N and EO,
in Scotland, the respondents have had no direct contact with EO. The respondents last had
video contact with EO in March 2021. Since returning to Italy in February 2020 the
66
respondents have had no letterbox contact with EO, for example birthday or Christmas
cards. Nor have the respondents sought any information from social work (at least since
Mr Stakes' involvement) regarding EO, including about his health and wellbeing. This has
been despite various attempts by social workers, including Mr Burns and Mr Stakes, to
initiate such contact.
[122]
In addition, the respondents have failed to engage with and give their permission for
EO to undertake medical treatment considered in EO's best interest.
[123]
Finally, in terms of the respondents' engagement with the reporter and questions
concerning EO's substantive welfare, the first respondent declined to engage with the
reporter to any extent. Whilst the second respondent did speak to the reporter, the extent of
that interaction was simply that he advised the reporter he would not discuss the case.
[124]
This absence of engagement by the respondents has taken place over the same period
of time that the respondents have engaged in significant amounts of litigation concerning
the children, including EO, across several courts in Scotland, often focusing on principally
procedural and jurisdictional matters, rather than substantive matters concerning their
children.
[125]
In these circumstances, it appears abundantly clear that the respondents are wholly
unable to prioritise the needs of the children, including EO. Lord Hope's `Golden Rule'
(referred to above at paragraph [17]) appears apposite.
[126]
Having considered all of the relevant evidence before me, I conclude, with little
hesitation, that, not only are the respondents unable to satisfactorily discharge their relevant
parental responsibilities and exercise their parental rights for the purposes of section 31(4) of
the 2007 Act but, in addition, the respondents are likely to continue to be unable to do so.
67
[127]
Accordingly, I find that the petitioner has established the conditions set out in
section 31(4) of the 2007 Act. Having made that finding there is no need at this stage to
consider the condition set out at section 31(3)(d) of the 2007 Act.
Consideration of evidence relevant to section 14 of the 2007 Act
[128]
Given that I have found the incapacity test under section 31(4) met, I turn to address
the welfare considerations contained in section 14. The first, section 14(2) requires that the
court has regard to all the circumstances of the case. Given that the subsequent provisions
in section 14(4) require regard to be paid to various specific circumstances of the case, at this
stage I acknowledge the section 14(2) requirement and will return to it after having
considered those other specific circumstances under section 14(4).
[129]
Next, is the requirement to regard the need to safeguard and promote the welfare of
the child throughout the child's life as the paramount consideration under section 14(3).
Adoption, as opposed to orders sought under section 11 of the Children (Scotland) Act 1995
and Permanence Orders, without authority to adopt, differs in that the court is required to
have regard to the need to safeguard and promote the welfare of the child throughout a
child's life, as opposed to only the child's childhood. That reflects the legal creation of a
parent/child relationship between child and adopter. Given the test of "necessity", the
question for the court becomes whether a child's welfare, throughout the child's life, can
only properly be safeguarded and promoted by the creation of that parent/child
relationship, or whether some other, less draconian option would meet this requirement.
[130]
Section 14(4)(a) requires consideration of the value of a stable family unit in EO's
development. EO is eight years old. Although the evidence of the social workers, reporter
and petitioner suggest that EO is an able and articulate eight year old, which I accept, he
68
remains young. It seems trite, as a statement of principle, that for the vast majority of young
children, there is value in a stable family unit to a child's development. For EO, the
evidence from the above witnesses is clear that EO has responded positively to, and thrived
within, a stable family unit, first with his initial foster carer and then with the petitioner. It
is also clear from this evidence that the unforeseeable loss of the stable family unit with his
initial foster carer was traumatic for EO. The evidence from social workers was that losing
his placement with the petitioner would likely be very traumatic for EO's welfare. Such
evidence reinforces the value of a stable family unit for EO. The evidence of Ms Francois
and Mr Stakes, who support the petitioner and EO respectively, have both had significant
interaction with EO and the petitioner. Both gave positive evidence of the training and
support sought out by the petitioner to assist her in providing an environment that is
sensitive to, and reflects, EO's developmental needs. Both gave positive evidence about
EO's engagement with his brothers, with school, friends, extra-curricular activities, the
church and also the petitioner's own wider family. It is also relevant to note here that the
petitioner herself is care experienced and has been able to bring her own experience of, and
understanding from, that experience to assist EO. Ms Francois and Mr Stakes also gave
positive evidence about how much EO has responded to, and thrived within, the
environment provided by the petitioner. The reporter states that it was abundantly clear to
her that EO considered the petitioner's home to be his home too. In concluding, the reporter
acknowledged that EO was perhaps too young to fully understand the legal consequences of
adoption, but that it was clear to the reporter that EO wished to remain in the care of the
petitioner. In addition, the evidence suggests that EO himself is aware that there are
uncertainties surrounding his future and that EO himself seeks to have these uncertainties
resolved, again suggesting that stability is a matter of particular importance for EO. It is
69
abundantly clear from the evidence before the court that there is considerable value to EO's
development in the stable family unit that the petitioner provides. It is also relevant to note
here that the extensive and continued litigation by the respondents in relation to EO creates
uncertainty, which, in turn, undermines and destabilises that environment created by the
petitioner for EO. An outcome that leaves the likelihood of continued litigation and the
uncertainty it creates is one that would fundamentally undermine the stability of the family
unit within which EO thrives and would, therefore, be one that would fundamentally run
counter to securing a stable family unit for EO.
[131]
Turning to the EO's ascertainable views regarding the decision, taking account of his
age and maturity (section 14(4)b). I have referred above to the reporter's discussions with
EO about EO's views regarding adoption. Whilst the reporter acknowledged that EO was
perhaps too young to fully understand the legal consequences of adoption, it was clear to
the reporter that EO wished to remain in the care of the petitioner and that EO considered
the petitioner's home to be his home too. Mr Stakes' affidavit also records that EO had
confirmed in conversations with Mr Stakes that he, EO, wanted to stay with the petitioner,
that EO clearly expressed that he was happy with the petitioner and that he sees his life with
the petitioner. The reporter, Ms Francois and Mr Stakes also state that EO refers to the
petitioner as "forever mummy", "mummy" or "mum" and responds to the petitioner as his
primary care giver. Whereas initially following his move to the petitioner's care, EO is
recorded as saying that he wanted to have the same surname as his brothers, more recently,
EO stated that he wants to be the petitioner's son and share her surname. Whilst it is a
matter of judicial knowledge that younger children might struggle to fully understand the
legal nature of adoption, when asked sensitively and in a way that accords with their age
and maturity, many are able to express an ascertainable view. In EO's case, I accept, without
70
hesitation, that EO has a clear view that he wants to live with the petitioner for the rest of his
life and in a relationship where they are mother and son.
[132]
In relation to the EO's religious persuasion, racial origin and cultural and linguistic
background (section 14(4)(c)), the evidence is very clear that EO has the potential to be
adopted by a person who shares a significant degree of EO's religious persuasion, racial
origin and cultural background. Both share Nigerian heritage. Both were born in Europe.
Both the petitioner and the respondents gave evidence of having extended family circles,
which the petitioner explained was a typical part of the importance placed upon family
within her Nigerian heritage, an opportunity that she and EO could share. Although EO
was only five months old when received into care, his birth family appeared to have a
Christian faith, which again is shared by the petitioner. Again, EO being received into care at
five months old, it is unlikely that he had by then developed a significant degree of Italian
language.
[133]
Considering the likely effect on EO, throughout his life, of the making of an adoption
order (section 14(4)(d)). It is self-evident that adoption creates a lifelong relationship of
parent and child. EO would have all of the rights a natural child has with regard to their
natural parent, for life. Likewise, the petitioner would have all of the rights and obligations
a natural parent has with their natural child, for life. Whilst self-evident, it's articulation
reinforces the lifetime strength of the bond created by adoption. Such a bond provides a
child with the certain knowledge that they have been claimed, legally and emotionally, for
life. Given EO's difficult and traumatic start to his life, such strength of lifetime bond and
knowledge of that bond will almost certainly have an invaluable benefit for EO throughout
his life. Given the factual findings I have made regarding the respondents' inability to
safeguard and promote EO's welfare throughout his life, the only practical and meaningful
71
way in which EO can be assured of having a parent who is committed and able to support
him appropriately throughout his life is through the making of an adoption order. Further,
as noted above, the respondents have engaged in a significant amount of litigation in respect
of their children, including EO, and continue to do so. Much of the thrust of that litigation
has often been directed at procedural and jurisdictional issues. Indeed, even at proof in this
case, much of the focus of the respondents' evidence and submission, when representing
themselves which I expressly differentiate from the focus of Mrs Scott's approach was on
jurisdiction and little on substantive matters concerning EO. The respondents' approach to
litigation is such to suggest that it will continue. As I said above, that provides continued
uncertainty for EO and the petitioner and their relationship together. Although only one of
many factors in my consideration, the effect of an adoption order would, for all intents and
purposes, prevent such disruptive actions by the respondents. Given the petitioner's
commitment to ensuring EO's ongoing relationship with his brothers J and N and to
ensuring his understanding of his birth heritage (matters that the petitioner herself is acutely
aware of being care experienced), as Lady Wise said in the case of AV and SV v AJF and IDF
[2017] CSOH 103, at paragraph [97] the making of an adoption order "would be to reconcile
in a meaningful and positive way [EO's] birth heritage with the secure and stable family into
which [he has] been accepted."
[134]
That then brings me back to section 14(2), and the requirement to have regard to all
the circumstances of the case. Here I consider it relevant to emphasise the extent of the steps
taken by the petitioner to prepare to receive EO into her life and the steps she has taken
since receiving EO into her life to ensure she has the skills required to safeguard and
promote the welfare of a child with a traumatic life history such as EO. The petitioner has
engaged in training, she has sought relevant support, she has built up a network of friends
72
within the school, community and church environments to engage EO fully in his life. The
petitioner was conscious from the outset of EO's need to understand his life story, the
importance of his brothers J and N to understanding that life story, and it is a testament to
the petitioner's commitment to EO, that notwithstanding the social workers and the reporter
all having expressed concerns about indirect contact between the respondents and EO, the
petitioner herself, subject to the very reasonable concern about risk to the security and
stability of EO's relationship with her, the petitioner stated that she was not opposed to such
contact, if demonstrably in EO's interests.
[135]
Turning, somewhat briefly, to Mrs Scott's questions for the court. Before setting out
my opinion in respect of the questions, I reiterate the concession made by Mrs Scott that she
acknowledged it was competent for the court to grant an adoption order, assuming it
considered the relevant tests met. That concession, it seems to me, acknowledges that the
matters raised in the six questions posed are matters of weight rather than competence.
[136]
Insofar as whether the circumstances of the children's, including EO's, removal from
the respondents was in violation of Article 8 ECHR, the decision for this court is not one that
is required to rule on such a question. I accept that the circumstances in which the children,
including EO, were taken into care might be factors that bear upon the question of necessity
in making or refusing an adoption order, or such lesser order as the court concludes might
be appropriate. Even as factors, considered in such a question, I am unable to conclude that
those involved in the removal of the children did not have a proper basis for doing so.
Further, the children were removed in February 2018 and the passage of time has reduced
the weight to be attached to such a consideration.
[137]
Mrs Scott thereafter posed the related question of whether the children's continued
detention was unlawful. Mrs Scott acknowledged that the answer to the second question
73
turned to some extent on the answer to the first question. I accept there was a positive duty
to reunify the family, subject to it being appropriate to do so from the perspective of the
children's welfare. In light of the seriousness of the allegations made I do not accept that it
was unreasonable, let alone unlawful, to not return the children, including EO, to the care of
the respondents pending a parenting assessment. Following the establishment of the
grounds of referral and supporting facts, the relevance of a parenting assessment was
reinforced. Again, it is not the function of this court to review the actions taken previously,
but, again, I accept they might be factors to weigh in the balance when considering all the
circumstances of the case. The passage of time reduces the weight that might be placed
upon them. Even as factors, considered in such a question, I am unable to conclude that
those involved in the continued removal of the children did not have a proper basis for
doing so. Here again, I note the observations of the Inner House in the case LO and EO
(supra) at paragraph [7] of its opinion, where it stated:
"The children's hearing retained a jurisdiction and a responsibility to consider and
keep the children's welfare in the forefront. Notwithstanding the parents' acquittal it
was entitled to reach the view that compulsory protective measures were still
required."
[138]
Mrs Scott also referred to Vienna Convention on Consular Relations of 1963. Sig.ra
de Lisio made reference to the Convention in her opinion, lodged in process. I have
discussed this above, where I stated that if there had been a breach of the Convention, I
considered it to be one of form rather than substance. Again, these, at best, are factors that
this court could take into consideration having regard to all the circumstances of the case.
Again, in all the circumstances, including the passage of time, I consider them, to be factors
of little, if any, material weight.
74
[139]
Mrs Scott's third, fourth, sixth and seventh questions relate to the application of the
relevant tests under the 2007 Act for dispensing with parental consent and applying the
overall test of "necessity". I have addressed these in part above. In relation to the options
alternative to adoption and my overall decision following my application of the relevant
tests, I address these below.
[140]
Mrs Scott's fifth question relates to how the UNCRC might bear upon the petition.
Mrs Scott reminds the court that the United Nations Convention on the Rights of Children
(Incorporation) (Scotland) Act 2024 came into force on 16 July 2024 and the court is bound to
act compatibly with the UNCRC. I acknowledge that. Sig.ra de Lisio also references the
UNCRC in her written opinion. It was not submitted that the 2007 Act does not comply
with the UNCRC, which was signed by the UK on 19 April 1990, ratified on 16 December
1991 and came into force on 15 January 1991. Article 3, UNCRC, as Mrs Scott
acknowledged, states that in all actions concerning children, the child shall be a primary
consideration. In questions of adoption, Article 21 provides that the best interest of the child
shall be the paramount consideration. Article 21 refers to inter-country adoptions, certain
recognitions regarding inter-country adoptions, and the promotion of multi-national
arrangements. In this regard, I have addressed Sig.ra de Lisio's reference to the 1993 Hague
Convention on co-operation in respect of inter-country adoption. Accordingly, how might
the UNCRC bear upon this petition? I proceed upon the basis that the 2007 Act complies
with the requirements of the UNCRC, and did so before 2024, and where a court makes a
decision in accordance with the terms of the 2007 Act, as explained by the higher courts, that
decision will, likewise, be consistent with the UNCRC and the 2024 Act.
75
Consideration of orders for adoption and options alternative to adoption for EO
[141]
The task here for the court has been expressed by the higher courts in a number of
different ways. What is required is a "global, holistic evaluation of
each of the options
available for the child's future upbringing before deciding which of those options best meets
the duty to afford paramount consideration to the child's welfare." (McFarlane L J in G (A
Child), supra, at para 50) and to assess whether, in light of all the evidence before the court,
adoption is the only order that will appropriately safeguard and promote the welfare of the
child throughout the child's life, or whether some lesser order, or no order, should be made.
[142]
Evidence was led on behalf of the respondents regarding orders for adoption and
alternatives to adoption in England and Italian law and regarding the recognition of a
Scottish adoption order in Italy.
[143]
In relation to orders for adoption and alternatives to adoption under English and
Italian law a number of observations are relevant. First, in considering alternative available
orders in this case, the relevant orders are those that I am empowered to make, including
making no order at all.
[144]
Secondly, I accept that Julien Foster's evidence about the similarity of adoption
orders between Scotland and England. I also accept that the availability of, and key
differences of special guardianship orders and arrangement orders as compared to adoption
orders, might be factors that I could consider in my assessment of the merits and demerits of
making no order at all (leaving the petitioner to seek English orders). I note from Mr Foster's
evidence the circumstances in which special guardianship orders and arrangement orders
are typically made in England. The circumstances where such orders are made do not
appear to me to accord with the circumstances of EO's case. As noted above, Mrs Scott
acknowledges that this court has jurisdiction to consider and make relevant orders in
76
relation to EO, and it is not argued that if this court determines that an adoption order is not
necessary, there are no appropriate alternative orders available to it. In any event, given the
decision I have ultimately reached, I need say no more about English orders.
[145]
Thirdly, insofar as Mrs Scott sought to rely on 7/10 of process, the decision of the
Juvenile Court of Marche dated 27 July 2024, accepting jurisdiction of the Juvenile Court of
Ancona for the adoption of measures to protect EO, as Mrs Scott recognised the Italian
courts could not accept transfer of the adoption proceedings, these being outside the scope
of EU Regulation 2201/2003
(Brussels IIa or Brussels II bis); it being the Children's Hearing
proceedings that would be the subject of transfer. I note under reference to the decision that
(i) the court appeared to proceed on an understanding that nothing had been decided
(presumably referring to the Scottish courts) due to the need to carry out further
investigations, namely the gathering of information from the parents and P, (ii) that the
court appeared to fail to recognise the distinction between the adoption proceedings and the
Children's Hearing proceedings (the further investigations referred to by the court clearly
appear to be a reference to the adoption proceedings) and (iii) the court, in its reference to
Law no. 184 of 1983 Article 1, and assessment of parenting skills, appears to have placed
significant reliance on the fact that these had been "positively evaluated by the Macerata
family consultancy with report dated 17/10/ 2023." That report (6/16 of process), as set out
above, was made in the absence of knowledge of the grounds of referral and supporting
facts, which when shown to Dr Pincherle, led Dr Pincherle to his evidential volte-face.
Accordingly, the court appears to have been fundamentally misled by the respondents. That
chimes with what is recorded in the opinion of the Inner House in the case of LO and EO,
referred to above, that the Italian Central Authority had previously observed that over the
77
years the respondents had not always acted straightforwardly or honestly with the Italian
Authorities.
[146]
Turning then to the options available to this court. The first option is for this court to
make no order at all. Its merits could be considered minimum intervention into family
relations and leaving open the possibility of rehabilitating EO into the respondents' care.
The result of making no order at all would be that the respondents retain full parental
responsibilities and rights, and the petitioner would have none. EO would also remain
subject to compulsory supervision of the relevant local authority and subject to the
requirements of the child supervision order currently in place. As set out above, the regular
hearings required under the compulsory supervision order have often been highly
confrontational, which has caused EO to become upset and dysregulated. It is also the case
that EO currently resides in England, making him physically distant to those with the
responsibility of supervising him. One obvious and significant consequential demerit for
EO of making no order would be that, whilst EO would continue to be well cared for by the
petitioner, the petitioner could not take important and necessary decisions in relation to EO.
Parental responsibilities and rights are a fundamental part of the legal framework within
which the welfare of children is safeguarded and promoted. A practical example of this is
the current outstanding need for EO to have medical treatment, which the petitioner cannot
authorise and the consent for which the respondents withhold. Further, the respondents
have had no direct or letterbox contact with EO since returning to Italy in February 2020 and
last had video contact with EO in March 2021. Since returning to Italy the respondents have
made no enquiry into EO's health or well-being. As observed by Lady Wise in AV and SV v
AJF and IDF (supra), it is inherently counter-intuitive for those who have no direct contact
with their children (and in respect of who's welfare they make no enquiry) to hold full
78
parental responsibilities and rights in respect of them whilst those who actually safeguard
and promote the child's welfare and are committed to doing so throughout the child's life,
have no such responsibilities and rights. These observations are reinforced where, as here,
the continued litigation by the respondents, in various courts, brings with it the
undermining de-stabilisation and uncertainly for EO, facilitated by the respondents'
parental responsibilities and rights.
[147]
Another demerit would be that EO is denied the opportunity to be "claimed", legally
and emotionally, for life, by the petitioner, an outcome that EO has made sufficiently clear
he wants and one that those who have come to understand EO well consider necessary for
EO's long term wellbeing.
[148]
A further demerit arising from making no order, perhaps with a view to orders being
sought in England or Italy, is the added delay. As the First Division stated at paragraph [70]
of its opinion in the North Lanarkshire Council case (supra):
"one factor which, it seems to us, will be present in very many cases is the need to
reach a decision which avoids unnecessary delay. Cases involving the possible
severance of the relationship between parent and child will often involve difficult
decisions, but they are decisions which the court must make. A decision which
results in further protracted procedure being necessary will seldom promote the
welfare of the child throughout the child's life."
[149]
The above considerations, considered within the context of the whole circumstances
of the case, very strongly militate strongly against making no order.
[150]
The second realistic option would be for this court to grant a residence order in
favour of the petitioner, regulating EO's residence with the petitioner and granting the
petitioner some parental responsibilities and rights. Again, it could be thought that the
merits of this option might be more minimal interference with the respondents' parental
responsibilities and rights and the maintaining the possibility of rehabilitating EO into the
79
respondents' care, whilst providing EO with a greater degree of stability in his relationship
with the petitioner and giving the petitioner some of the rights necessary to care for EO
whilst with her. Such orders would however remain subject to challenge by the respondents.
Given the history of the respondents' absence of contact with EO and enquiry into EO's
wellbeing and their continued use of undermining and de-stabilising litigation, in addition
to granting a residence order and granting the petitioner parental rights and responsibilities,
the court could also extinguish the parental responsibilities and rights of the respondents,
limiting the respondents' ability to undermine and de-stabilise EO through litigation.
However, whilst such an approach might, on a day-to-day basis, provide for the petitioner,
as a matter of law, to take decisions necessary in the interest of EO's welfare, both EO and
the petitioner would know that such an arrangement would only subsist until EO reached
16 years of age, would not subsist throughout his life and, again, deny EO the opportunity
to be "claimed", legally and emotionally, for life, by the petitioner, an outcome that EO has
made clear he wants. It is abundantly clear on the evidence before the court that, for EO,
given his own history, his needs and wants and the obvious benefit he derives from the
stability provided by a stable family environment, the identified limits of a residence order,
even supplemented with further orders, as above, again, strongly militate against this option
having regard to safeguard and promote EO's welfare.
[151]
I have already cited the passage from the Noth Lanarkshire Council case regarding the
avoidance of delay. To, perhaps a lesser extent, that concern applies with the making of a
residence order. In addition, I consider the concern expressed by the Inner House in the TW
v. Aberdeenshire Council case (supra) relevant:
"... A vague hope of the possibility of maintaining some unspecified kind of
relationship between a child and her natural parents from whom she has had to be
taken into care shortly after birth is not an appropriate basis on which to disrupt the
80
emotionally stable conditions in which a child is and has been residing with foster
parents with a view to adoption."
[152]
Having considered the other options, I next consider an adoption order. In doing so
I acknowledge that such an order is draconian and is an order of last resort, "when nothing
else will do". That, however, must be understood in the context of what was stated by the
Inner House in the North Lanarkshire Council case (supra) that:
"Used properly, ... the phrase 'nothing else will do' is no more, nor no less, than a
useful distillation of the proportionality and necessity test as embodied in the
Convention and reflected in the need to afford paramount consideration to the
welfare of the child throughout her lifetime."
[153]
In considering an adoption order, I come to the part of the evidence that has caused
me the most concern, namely the evidence regarding the likely Italian legal approach to a
Scottish adoption order. Both Mrs Scott and Julien Foster used the phrase a "limping
adoption" and at paragraph 3.9 of his opinion, Mr Foster made reference to the English case
emphasised that when an English court considers whether to make an adoption order in
respect of a foreign national child, it must consider as part of the welfare exercise the
possibility of the result being a "limping" adoption order, namely an adoption order fully
effective in the country in which it is made but which might be ineffective in other countries
that the child and his adopters may wish or need to visit.
[154]
The relevant evidence is to be found in the evidence of Sig.ra de Lisio. It was
fortunate that this evidence was led after the instruction of Mrs Scott and the court had the
benefit of Mrs Scott being able to direct questioning effectively. As discussed above, I
understood the essential part of Sig.ra de Lisio's evidence to be that for a Scottish adoption
order to be formally recognised in Italy, an Italian court must "verify" the foreign order,
which involved an "assessment" by an Italian court. Even where such an assessment found
81
an "irreversible inability of the parents to raise and care for the child owing to their total
inadequacy" [Production 7/14, Copy of Italian Independent opinion by Counsellor Paola de
Lisio (English translation), para 1.1), a distinction was nevertheless drawn between "full"
adoptions and "simple" adoptions; "full" adoptions severing bonds between child and
natural parent, "simple" adoptions not severing such bonds. Further, not only were the
circumstances in which single person adoptions limited, where such an adoption was
granted, only a "simple" adoption was permissible. Should a Scottish adoption order not be
formally recognised by the Italian courts, Sig.ra da Lisio's evidence was that EO would, in
Italy, remain an Italian national, "unless he expressly renounced it" (Production 7/14, para
3.1), the son of the respondents and whose family status under the adoption order would
not be recognised.
[155]
I have considered this carefully. I acknowledge the uncertainty arising in respect of
EO's status under Italian law. On the basis of Sig.ra de Lisio's evidence it appears that that
uncertainty could be swept away by EO expressly denouncing his Italian citizenship, albeit I
accept that, given EO's current young age, that might be a question more appropriately
addressed in the future. However, this uncertainty under Italian law must be considered
against the certainty obtained under Scottish law for EO living in the UK under a Scottish
adoption order and the uncertainly and delay associated with Italian orders. As discussed
above, making no order at all, or making a residence order, even where the petitioner is
granted parental responsibilities and the respondents' parental responsibilities and rights
are extinguished leaves future uncertainty for EO in his particular circumstances;
considerably more so if no order is made at all.
[156]
Having considered all of the evidence and options before me, I have concluded that
in EO's particular circumstances, granting the adoption order sought is necessary to
82
safeguard and promote EO's welfare throughout his life. The evidence before me, including
the established grounds of referral and supporting facts, the respondents' lack of insight into
the impact of their behaviour on the children, including EO, the respondents' lack of ability
to prioritise the needs of their children, including EO, the respondents' refusal to engage
with the relevant bodies to assist with the rehabilitation of the children, including EO, into
their care, the respondents' failing to engage meaningfully with direct and indirect contact
with EO, both before and after returning to Italy without him, the respondents' complete
absence of enquiry into EO's health and wellbeing since returning to Italy, the respondents'
withholding of consent to medical treatment advised to be in EO's interest, the respondents'
continued litigation, which undermines and de-stabilise EO's current environment, the risk
of which remains in the absence of an order short of adoption, EO's expressed desire to
become the petitioner's son for life and take her surname, the evidence of EO thriving in the
environment created for him by the petitioner and the petitioner's lifelong commitment to
EO and the petitioner's willingness and commitment to maintain EO's relationship with his
brothers J and N, all taken together confirms that an adoption is the only order that will
safeguard and promote EO's welfare throughout his life. In these circumstances I consider
that it would be better for EO that an adoption order be made than not. It is necessary.
Nothing less than adoption will suffice. On making the adoption order I will also terminate
the compulsory supervision order extant in relation to EO.
[157]
Finally, I consider the question of whether I should make an order in relation to post
adoption contact under section 28(3) of the 2007 Act. It is of particular note, and significant
credit to the petitioner, that notwithstanding the clear views to the contrary expressed by
many of the social workers and the reporter that there was unlikely to be any benefit to EO
from post adoption contact between EO and the respondents in any form, the petitioner
83
herself stated in her affidavit that she thought letterbox contact was something she could be
supportive of, if the respondents were able to communicate in a way that did not confuse
EO or seek to criticise EO's place with her. Counsel for the petitioner did not move for post
adoption contact. Given the approach of the respondents to date and aspects of the first
respondent's cross-examination of the petitioner, notwithstanding the petitioner's expressed
views, I do not consider it appropriate from the perspective of EO's welfare to make an
order for contact in any form.
[158]
I will reserve all questions of expenses meantime.