Scottish Court of Session Decisions

By an application dated 3 July 1995, Grampian Regional Council applied to the sheriff at Aberdeen, seeking an order declaring a child A free for adoption. In terms of the application (as amended) the petitioners requested the court to dispense with the agreement or consent of the child's mother VJM and (in terms of the amendment) the child's father TR, on the ground that "they are withholding their agreement unreasonably and have persistently failed without reasonable cause to discharge the parental duties in relation to the child in terms of section 16(2)(a) and (b) of the Adoption (Scotland) Act 1978". The child A is a girl, born on 9 September 1994.

A hearing took place on 2 September 1996 and subsequent dates, evidence eventually being concluded on 5 November 1997, and parties' submissions being heard over the next two days. On 4 December 1997 the sheriff issued his Findings in Fact, together with Findings in Fact and Law to the effect that (1) the parents had persistently failed without reasonable cause to fulfil parental responsibilities in relation to the child and (2) the parents were unreasonably withholding their consent to the making of a freeing order. He accordingly declared the child to be free for adoption, and granted the prayer of the petition. The sheriff also wrote a Note, containing a very full explanation of the reasons for his decision. The father TR has appealed to the Court of Session. The mother has not appealed.

In presenting the appeal to this court, the appellant appeared personally. His submissions were based upon four stated Grounds of Appeal. Having regard to the nature of the case, however, and the fact that the appellant did not have professional representation, we did not think it right to hold him too closely to the terms of the stated Grounds. Nonetheless, these stated Grounds provided and provide an appropriate framework for the submissions actually made. It is worth mentioning that the appellant appears (very understandably) to have had some difficulty, since the sheriff's decision and in attempting to frame Grounds of Appeal, in fully appreciating the extent to which this court's powers of intervention are limited by findings made by the sheriff. Moreover, it is clear that he feels very passionately that he and the mother have not been fairly treated over the years, and in particular by the sheriff's decision. Having had professional assistance in the preparation of the Grounds of Appeal, the appellant was nonetheless able to present the points which he wished to make articulately and with considerable restraint.

The history of this matter has been complicated and difficult. Before turning to the submissions, it is appropriate for us to set out a broad and general narrative, to put the submissions in context.

The appellant was previously married to an aunt of VJM. When she became pregnant, VJM was identified by the Social Work Department in Aberdeen as not only young and single, but disadvantaged and with no permanent secure home base. Abortion, fostering and adoption were discussed with her social worker. She was not at first prepared to admit who was the father of the child; and the appellant himself strenuously and resolutely maintained (even on oath) that he was not the father. The sheriff has held that at this stage, before the birth, it was the intention of the Aberdeen Division of Grampian Regional Social Work Department to do all that they possibly could to ensure that mother and child remained together after the birth. While the mother had a positive and satisfactory personal relationship with her assigned social worker, Mrs. Miller, she was resolutely opposed to the Department's wish to have her live in at Richmondhill House, Aberdeen, to be assessed, taught requisite skills and kept under supervision. There was thus what the sheriff describes as an impasse, with the Department very anxious to assess the mother's capabilities, so that they would be in a position to judge what level of care and support she would require in the run up to and after the birth, and the mother both unwilling to go to Richmondhill, and otherwise refusing to co-operate. A further matter which heightened the concern of the Department was that the mother was for a time living with the appellant and his then wife (the mother's aunt), and was thus in the household of a Schedule 1 offender (the appellant having had a previous conviction, more than 20 years earlier, for sexual indecency towards children). In about June 1994, a meeting took place at which the Department put its concerns to the mother in terms which the appellant saw as an "ultimatum". The sheriff states that even by this time, the appellant was "clearly making himself seen as a formidable blockage in the attempt to advance the assessment process"; and one must note that the sheriff also makes general findings as to the appellant being an extraordinarily difficult person to deal with if he does not feel like giving his co-operation.

When the child was born on 9 September 1994, the sheriff has stated that the Department were quite clear that they were unable to allow the mother to take the child home to the household of the appellant and his then wife. As a result of certain "irregular procedure", the mother did return home there with the child, for about five days. A place of safety order was then obtained by the Department, and the child was removed from the household and placed with a Mrs. Alice Wright, with whom she remained, and indeed still remains. The Department, however, remained anxious to seek the rehabilitation of the child with the mother, wanting the mother to go to Richmondhill with the child for assessment of her parenting skills as a first step. The mother and the father remained resolutely opposed to any such assessment: after visiting Richmondhill on a few occasions, the mother expressed the opinion that it was unacceptable to her, and that she was not prepared to live there for the assessment period. Standing this, and being very anxious for mother and child to get to know each other, the Department arranged access, for five hours per day, five days per week. Access was to be at Richmondhill, which had all requisite facilities; but at the request of the mother access was switched elsewhere, without such facilities. The sheriff makes findings as to the unsatisfactory history of access, noting that it seemed merely to confirm the fears of the Department that the mother had little if any idea as to what was realistic to expect of a new-born infant.

In about November 1994, the appellant and the mother set up house together in the Huntly area. The Department in Aberdeen maintained contact with them, although the sheriff describes the level of co-operation as seeming to become even lower than it had previously been. On a practical level, access by the mother in Huntly to the child in Aberdeen clearly became much more difficult. Periods of months passed by without the mother even requesting access, and "on occasions when she did request it and arrangements were made, these would either be subsequently cancelled by the father or even when left in place would not be implemented either at all or at least for the duration originally planned". Shortly before the child was one year old, the appellant swore an affidavit saying that he was, despite his previous denials, the father of the child. The birth certificate was altered to that effect. This accordingly gave him access to all of the legal proceedings in his own right. From birth up to the time of the hearing before the sheriff, the child has been under the control of the children's hearing system, with frequent hearings and reviews. Despite the recognition of his paternity, access was allowed by the Panel to the mother alone, but it was less and less frequently taken up. Relations between the parents and the Department were low, with "total non-co-operation from the parents" and the parents saying that they did not want any written communications of any sort whatever forwarded from the Department. A particular problem arose because the child was diagnosed to have a variety of medical problems, with the parents refusing permission for treatment and the appellant (even after an independent examination arranged for by him) refusing to give consent to a recommended overnight hospitalisation.

The Huntly Division of the Grampian Regional Council Social Work Department had engaged with the parents when they became aware that the mother was once more pregnant. The parents co-operated fully with the Huntly Department, and a Mr. Milnes, social worker there. However, Mr. Milnes saw his relationship with the parents as so fragile in the early months that he would offer no co-operation to his colleagues in the Aberdeen Department (even to the limited extent of handing on correspondence), lest he be seen by the parents as "colluding with the enemy". At Huntly, the parents have in fact been able, with help and support, to continue to have their subsequent children living with them at home. Put shortly, however, Mr. Milnes's interventions in relation to the younger children did not, and perhaps could not, remain entirely separate from questions relating to the child A, for which the Aberdeen Department were responsible. In May 1997, the Panel decided inter alia that both parents were now to have access, on a supervised basis, once per fortnight, to the child A. Certain terms and conditions were specified, which did not commend themselves to the appellant. He declined ever to take up the award of access made to him. On 1 September 1997 the right of access was withdrawn. Between November 1996 and November 1997, the mother only asked for access to the child on seven occasions. All of these requests were granted. The mother only kept to the arrangements and saw the child on four of the seven occasions, and then only briefly. However, the contact between mother and child, and in particular the two subsequent children, went quite well. At the time of the hearing before the sheriff, the mother was pregnant with her fourth child, subsequently born in Spring 1998 and thereafter living at Huntly with the parents.

The appellant's first Ground of Appeal, under reference to section 18(3) of the 1978 Act, is to the effect that the sheriff erred in law in dispensing with the consent of the natural parents "in the absence of any finding that the child had been placed for adoption or that it was likely that the child would be so placed". Section 18(3) provides that no agreement required under subsection (1)(a) shall be dispensed with under subsection (1)(b) unless the child is already placed for adoption "or the court is satisfied that it is likely that the child will be placed for adoption". The sheriff's Findings in Fact contain no finding to the effect that it is likely that the child will be placed for adoption. The child had not already been placed for adoption. Put thus simply, this first Ground of Appeal would appear to be well-founded. However, it is apparent from the sheriff's Note and Opinion that he has correctly followed the two-stage approach set out in Lothian Regional Council v. A 1992 S.L.T. 858; and that after dealing with the first stage (to which we shall return) he passed to consideration of the second stage - whether an order dispensing with the parents' agreement ought to be made. At the first stage, in considering the ground set out in section 16(2)(b) - that the parent "is withholding his agreement unreasonably" - the sheriff in his Opinion says that it seems that an objective observer would "certainly be driven to the ineluctable conclusion" that the best future that could possibly be obtained for this child would certainly be not for her return to her natural father and mother, nor for her to remain in a state of uncertain limbo, "but to continue to reside with Mr. and Mrs. Wright who have cared for her virtually from birth, who have expressed a desire to adopt her and in respect of whom the Aberdeen Social Work Department have pronounced themselves satisfied that they would be suitable adoptive parents were the present order to be granted". He goes on to say that he believes that it is only thus that the greatest degree of stability, certainty and security will be achieved. While these statements as to the position regarding Mr. and Mrs. Wright, and the prospects of adoption by them, are not set out in the Findings in Fact, it is evident from this passage that the sheriff was indeed satisfied that it was likely that the child would be placed for adoption. Moreover, in considering the second stage, the sheriff in his Opinion expressly refers to the question raised by section 18(3) as one that "had to be answered before the application could be disposed of"; and by interlocutor of 10 September 1997, "having heard parties' procurators on the question of additional evidence being adduced in order to resolve the question of competency arising from section 18(3)" he assigned a diet for the hearing of further evidence. And referring to his having called for further evidence to be led, he says that this was "so that I might satisfy myself one way or the other in relation to this point". On the whole matter, we find it entirely clear that the sheriff considered section 18(3) in the right way and at the right stage, and heard and accepted evidence to the effect that it was likely that the child would be placed for adoption (with Mr. and Mrs. Wright). The procedural matter is not raised in the appeal. It may be that the sheriff's conclusion on the matter covered by section 18(3) is to be found in his Opinion, rather than in the Findings in Fact, because of the procedural history, and the contentions as to the further hearing of evidence. Counsel for the respondents submitted that it was not necessary for this to appear in the Findings in Fact, the position being sufficiently clear as matters stood. She submitted, however, that if this court considered that the matter should be contained in the Findings in Fact,

The second Ground of Appeal is in these terms:

In a broader argument, to which we shall come, the appellant touched on a number of matters relating to the welfare of the child and the circumstances of the various parties. On the narrower legal point raised by the second Ground of Appeal - relating to the absence of any finding that the decision was reached having regard to the factors set forth in section 6 - he did not really elaborate upon the terms of the written Ground. It is to be noted that section 6 (unlike section 18(3) with which we have just been concerned) does not require the court to be "satisfied" that any particular matter is the case. Section 6 requires a court to "have regard to" all the circumstances. In the terms substituted by section 95 of the Children (Scotland) Act 1995, this section provides that the court "shall regard" the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount "consideration"; and in the section as it previously read the requirement to have regard to all the circumstances was qualified by the words "first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood".

The section does not appear to us, in either formulation, to be one concerned with specific findings, of the type which require inclusion as Findings in Fact. It is rather concerned with matters which involve the court's impressions, judgment and discretion, and the weighing of various considerations and the various reasons which there might be for adopting one course rather than another. That being so, we find it natural that the Findings in Fact do not set out the points referred to in the Ground of Appeal. What is important is that the sheriff, in explaining what he has done in his Note and Opinion, has in fact had regard to, and taken into consideration, the matters with which section 6 concerns itself. We do not consider that specific reference to section 6 will always be necessary. But in this case, when turning to the second stage and the question of dispensing with the parents' agreement, the sheriff refers at the outset to section 6. After referring back to matters which he had already considered at the first stage, he goes on to note that the manager of the Huntly Social Work Department had stated that he saw it as "a very considerable gamble" to return the child to her parents. And he goes on to say that "when the stakes are so very very high - the immediate and perhaps the life-long welfare of the child - I do not consider that it is appropriate to gamble with such matters, but rather to go for the proven status quo which has worked so well for all but four days of the child's life". At various points in the Note and Opinion the sheriff deals in some detail with matters of the kind set out in this Ground of Appeal. We do not find it necessary to refer to those in detail. On the specific point of law, we do not consider that any specific findings were required, and we find it clear from what the sheriff says that he has in fact had the appropriate matters at the forefront of his mind in considering all the issues which were before him.

Before turning to the broader arguments advanced by the appellant, it is convenient to deal with the third Ground of Appeal, which turns upon a specific matter. This Ground of Appeal asserts that the sheriff pre-judged determination of the case, and identifies one particular matter as suggesting prejudice against the appellant. Reference is made to Finding in Fact 17. Finding 17 is a sequel to Finding 16. In Finding 16 the sheriff has described the meeting in June 1994, when "it was made clear to the mother that while the desire of the Department was to keep mother and child together, this could probably most easily be achieved if, firstly, the mother would co-operate with them in carrying out the requisite assessment and, secondly, she would consider setting up house in some sort of as yet unspecified, but supported, setting, away from the household of the Schedule 1 offender...". As we have noted, the appellant saw this as some kind of "ultimatum". Finding 17 states that "For the avoidance of doubt, I do not find it to be a fact that this 'ultimatum' was delivered to the mother in anything remotely as stark a format as:- 'Get out of the pervert's house or you lose the kid'". In relation to this last phrase, the Ground of Appeal states that "No reference to such a phrase or such a term as 'pervert' was made by anyone involved in the case either as a witness or as Agent and the use of said phrase and in particular the word 'pervert' suggests prejudice against the appellant". The point which is being made is not perhaps evident, without reference to the notes of evidence. We were shown the relevant passage. During the cross-examination of a witness as to what happened at the meeting in question, the sheriff intervened, and having commented that social workers are highly-trained professionals, he put it to the appellant's agent that they "didn't blunder in and say 'because you're a pervert, we are taking the baby away'. They would say 'here is what we are thinking about' and then say 'why don't we consider such and such'". The agent replied by saying that what he was suggesting was that that didn't happen, they simply said this is what was being done. It thus appears that, as Ground 3 indicates, it was the sheriff, and no one else, who introduced the word "pervert", and that it was he, and no one else, who introduced a phrase on the lines indicated in that Ground. While it is plain that he is contrasting the reasonable terminology which he would expect from social workers with a hypothetical situation in which people blunder in and use that kind of word and that kind of phrase - and so far from suggesting that such language is appropriate, is evidently suggesting it as extremely inappropriate - the word and the language come from his mind and his lips, and might perhaps be taken as indicating a view held by him that however offensive and unacceptable, such language, and in particular the word "pervert", in some way corresponded to the facts of the appellant's background and previous conviction. We can understand the appellant's sensitivity upon this matter. We think it unfortunate that the sheriff chose to intervene in this way, and to express the matter as he did. But we see no real basis for thinking that what he did demonstrated a prejudice against the appellant, or a premature conclusion on any aspect of the case. It is true that at the end of the day and after all the evidence, he is highly critical of the appellant in a number of ways. But we see no indication of prejudice, either generally or upon this particular matter of the appellant's previous conviction.

The appellant's fourth and final Ground of Appeal is in these terms:

As we have indicated, the appellant's submissions ran beyond the particular legal points taken under the first two Grounds of Appeal, involving a broader argument, and submissions as to the child's welfare and other circumstances. This fourth Ground of Appeal relates to one particular aspect of the general circumstances which the sheriff took into account, and it appears to us that it is best to consider the broader submissions made by the appellant in a way which covers, but does not treat as a separate issue, this fourth Ground.

The basis upon which the sheriff has been satisfied in the case of each parent in terms of section 18(1)(b) of the 1978 Act that the parents' agreement to the making of an adoption order should be dispensed with is to be found in two of the grounds specified in section 16(2) of the Act. In relation to each parent, the sheriff has held that the parent has persistently failed without reasonable cause to discharge certain parental duties in relation to the child, these duties being, in relation to each parent, those set out in section 16(2)(c), in the form enacted by the Children (Scotland) Act 1995 Schedule 2 paragraph 10 -

The sheriff has also been satisfied in the case of each parent that agreement to the making of an adoption order should be dispensed with on the ground specified in section 16(2)(b) - that the parent is withholding his agreement unreasonably.

It is to be noted that the sheriff has been satisfied on the basis of ground (2)(b) and also on each head of ground (2)(c). His decision could accordingly stand, on either ground (b) or (c), even if the decision were held to be bad on the other of those two grounds. But there are areas of evidence which are relevant to both heads; and the appellant's submissions can be seen as bearing upon all the issues arising in relation to section 16(2), and also the decision that agreement to the making of an adoption order should be dispensed with on one or more of these grounds. It is also to be noted that although the mother has not appealed, the appellant's submissions, perhaps understandably, related not only to the sheriff's decision in the appellant's own case, but to his decision in the case of the mother.

The appellant submitted that in considering whether a parent who suffered from some disability should be regarded as having "persistently failed without reasonable cause" to discharge parental duties, regard must be had to the disability, and to the fact that such a disabled person might need, and should be given, help in fulfilling parental responsibilities. In relation to the mother, he submitted that she had never been given the chance to see what she could do, the Social Work Department having decided (as the appellant submitted) that she should not have the child back. What had been needed was more support, not demands and threats. The way in which matters had been handled at Huntly, in relation to the other children, provided an illustration of how matters ought to have been handled, in relation to child A, in Aberdeen. And the way in which matters had turned out in Huntly, with the mother able to cope with the other three children, showed that it was the absence of help which had led to the very different course of events before and since the birth of child A.

Turning to the question of his own previous conviction, and the extent to which he had been regarded by the Aberdeen Social Work Department as a risk to the child, the appellant again drew a comparison between what had happened in Aberdeen, and what had happened subsequently in Huntly, where he had not been treated as a risk to the children. The removal of the child, when the mother would not agree to what the Department wanted, showed a wrong approach. The appellant himself had needed help and advice. The child having been removed, it was not appropriate to say that there had been a failure by either parent - they had simply never got the chance to carry out their parental responsibilities.

As regards the finding of persistent failure, without reasonable cause, to fulfil the responsibility to maintain personal relations and direct contact with the child on a regular basis, the appellant's submission took the same form as upon the points already mentioned. It was not appropriate to say that the absence of contact represented a failure to fulfil this responsibility. It was not the fault of the parents that the mother's contact with the child had been limited, or that his own contact had been non-existent. These were consequences of what had been done by others. The child could and should have been brought to Huntly.

Broadening his submissions to deal with the child's welfare and the requirements of section 6 of the Act, the appellant pointed out that the other children were living at home, with him in family and always present. While he had admittedly decided not to take up the opportunity of access to child A, when it was allowed, one must look at the whole context. His view had been that it was better to keep away. He considered that there would have been "aggro". Just as it was inappropriate to describe his actings, or the mother's, as failures, so also the welfare of the child would have been more satisfactorily dealt with, if help had been afforded. The efforts of the Department should have been directed to trying to establish a proper relationship between the natural parents and the child. Even now, that should be the aim. The appellant acknowledged that matters would have to be taken slowly, over a period of time, with initial access for a matter of hours, through daily access, and on to the child being left with the natural parents. That was what would be in the best interests of the child. It should never have been a problem: the child had been kept away from her natural parents and her siblings, and the attitude of the Department had always been that the child would not belong with her parents, instead of testing that option and trying to produce a good result with the natural parents. It was not suggested that immediate transfer would be possible now. But the child should come home eventually.

In principle, it will of course be appropriate to consider allegations of failure to fulfil parental responsibilities, and the reasonableness of withholding agreement, and indeed the appropriateness of dispensing with agreement, taking account of any individual parent's particular disadvantages or disabilities. And speaking generally, it is no doubt true that where a person has such disadvantages or disabilities, social workers should look for ways to help that parent to a position where they are able to discharge parental responsibilities satisfactorily, rather than look simply to any deficiencies in the parent's current, unassisted handling of matters. But the view advanced by the appellant, that in this case the course of events flowed from a failure on the part of the Social Work Department to provide appropriate help, with the appropriate aim of enabling the parents to fulfil their responsibilities, has to be considered by this court not as a general or hypothetical matter, but as one upon which the sheriff has heard a substantial body of evidence, has made a substantial number of Findings in Fact and has provided a substantial explanation as to why he reached the conclusions which he did reach. We have already narrated certain passages from the sheriff's Note, which were of course relied upon by counsel for the respondents. It is significant that the appellant himself acknowledges that there could be no immediate transfer of the child at present; and the position which he adopts appears to be close to that which the sheriff describes as the child remaining "in a state of uncertain limbo". In terms of the child's welfare, we do not see any basis upon which we could interfere with the sheriff's conclusion that this would be undesirable, that it would not be appropriate to gamble with such matters, but that what was appropriate was to "go for the proven status quo which has worked so well for all but four days of the child's life". As regards failures to fulfil parental responsibilities, it was for the sheriff, and is not for us, to consider and assess the extent to which the Social Work Department were trying to provide help, and were taking seriously the possibility of the child being restored into the keeping of her mother (and, once they knew that the appellant was the father, the father also). The factual history which we have set out, both in relation to the mother and in relation to the appellant himself, reveals a sad clash of wills between the Department and each parent. But it does not appear to us that the sheriff can be said to have reached an unreasonable conclusion, either in relation to such specific matters as the appellant's rejection of access and the mother's response to the desired means of assessment, or upon a more general consideration of all that happened over the years. We find ourselves quite unable to hold that the sheriff was not entitled to see the parents as having failed, persistently and without reasonable cause, to discharge the parental duties in question. Both in that respect, and in regard to the withholding of agreement "unreasonably", the sheriff appears to us to have proceeded upon a careful consideration of the entire past history, and to have weighed matters in accordance with his function as the fact-finding court. We appreciate the distress, and indeed the sense of injustice, felt by the appellant. But in terms of the statutory provisions, and in particular section 6 of the 1978 Act, we can see no valid criticism of the conclusion reached by the sheriff. The appeal is refused.