Scottish Court of Session Decisions

The petitioners, who are husband and wife, are seeking to adopt WL, who is the son of the respondent FM, in terms of the Adoption (Scotland) Act 1978. The respondent, who refuses to consent to the adoption, lodged answers to the petition and a proof took place before the sheriff. The petitioners sought to have the court dispense with the respondent's consent on the grounds set out in section 16(2)(b) and (c) of the 1978 Act, namely that the respondent was withholding her agreement unreasonably and that she had persistently failed without reasonable cause to discharge her parental duties in relation to the child. After hearing evidence, the sheriff held that the respondent had persistently failed, without reasonable cause, to discharge her parental responsibilities towards WL during a period from about June 1993 until mid November 1994; but that she was not unreasonably withholding her consent to the proposed adoption; and that having regard to all the circumstances of the case, and having given first consideration to the need to safeguard and promote the welfare of WL, it was not appropriate that an adoption order be made. The sheriff therefore refused the petition but, in terms of section 11(2)(c) of the Children (Scotland) Act 1995, he granted a residence order in respect of WL in favour of the petitioners and, in terms of section 11(2)(b), granted an order imposing parental responsibilities in respect of WL on the petitioners and giving them parental rights in relation to him. Both parties have appealed against the sheriff's decision. The petitioners and appellants contend that the sheriff should have held it established that the respondent was unreasonably refusing her consent; and, in any event, that the sheriff should have exercised his discretion in favour of granting the adoption order, given his finding that there had been persistent failure to discharge parental responsibilities on the part of the respondent. The respondent contends that the sheriff should not have held that persistent failure to discharge parental responsibilities had been established.

It is convenient, at the outset, to set out, in fairly skeleton form, the history of events. The child WL was born on 15 June 1992. His father and the respondent were not married. His father has had no contact with him since he was about two months old and has advised the Social Work Department that he does not wish to be further involved with him. The respondent experienced certain difficulties in caring for WL. As a result of those difficulties, she contacted the Social Work Department. The first contact was made on 10 May 1993. There was a further contact on 3 June 1993, after which WL was put on the child protection register and then, on 20 July 1993, taken into care and placed in temporary foster care. Since that date, WL has never been in the full-time care of the respondent. After 20 July 1993 there were various proceedings, including the making and continuing of a place of safety order and a proof. As a result of the proof, a supervision order was made on 28 September 1993, with the condition that WL should remain with foster carers. The supervision order has been continued in force from time to time since then. On 9 March 1994, there was an emergency child care review at which a decision was taken to pursue the possibility of freeing WL for adoption. Proceedings to free WL for adoption were, however, never undertaken. On 21 June 1995, a decision was taken to pursue adoption and the appropriate proceedings followed, leading to the appellants being approved as adopters. WL continued in the care of foster carers until 29 March 1996 when he was placed in the care of the appellants. The adoption petition was instituted on 28 November 1996.

The proof in this petition took place in January 1998 and the sheriff's order was dated 31 March 1998. The sheriff was critical of the delays which have occurred in the case and, in particular, indicated that he regarded the Social Work Department as having "dithered" in handling it. It is certainly unfortunate that the future of WL has to be considered in a situation in which he has not been in the full-time care of the respondent since he attained the age of 13 months and has been in the full-time care of the appellants for almost three years, but the delays which have occurred cannot be laid at the door of any of the parties to this appeal. The respondent has had access to WL for most of the period since he was taken into care but, for much of the time, her access has been extremely restricted, amounting to only one hour per month. The amount of access reflects, we understand, the normal policy of the Social Work Department in dealing with cases where adoption is contemplated. The question of the amount of access allowed to the respondent has been considered from time to time at a Children's Hearing, which has, for the most part, agreed with the view of the Social Work Department.

The factual history is set out fully in the sheriff's findings-in-fact and much of it appears to have been relatively little in dispute. The respondent experienced a number of difficulties during her teenage years. She abused alcohol and there were incidents of self-harm. She received psychiatric treatment including, on one occasion, compulsory treatment under the Mental Health (Scotland) Act. She was exposed to some traumatic experiences, witnessing the death of one friend and suffering the loss of another in road traffic accidents and also witnessing serious injury to another friend. She met WL's father in England when she was working there but returned to Scotland before WL was born and was living there with her mother at the time of the birth. As we have mentioned, the relationship with WL's father effectively ended shortly after WL was born. Thereafter, the respondent lived with her mother, with WL, until the beginning of May 1993 when she moved with WL to her own tenancy. Her accommodation was not entirely satisfactory, being large and difficult to heat, and she had limited furniture and equipment. When she first contacted the Social Work Department, she was having difficulties in coping with WL and in feeding him and, according to her evidence, he was on occasions sick and difficult to handle. On her first contact with the Social Work Department, she admitted that she had lost patience with WL and slapped him. She was thereafter visited on at least two occasions by social workers. On 3 June 1993, she telephoned the standby service of the Social Work Department in some distress, having drunk two cans of lager and swallowed 14 anti-depressant tablets which had earlier been prescribed to her. She was visited by two social workers and reluctantly agreed to go to hospital while WL went to the care of the respondent's mother. At that time, there were no concerns about the respondent's ability to care for WL, apart from those which had arisen from the difficulties just mentioned.

The respondent received some treatment, first in Hartwood Hospital and then in Law Hospital, where she was visited by a social worker, Caroline Miller. On 18 June 1993, the respondent told Miss Miller that when she had telephoned the standby service on 3 June she had attempted to suffocate WL by placing her hand over his mouth and nose she also reported that there had been feeding difficulties with WL and that he was crying a lot and being sick a lot. She also admitted slapping WL. This information led to a child protection investigation as a result of which the decision was taken, on 21 June 1993, to place WL on the child protection register. The respondent left hospital on 6 July 1993 and returned to the home of her mother, where WL also was. However, on 20 July 1993, WL was voluntarily placed in foster care by the respondent. The foster carers were a Mr. and Mrs. T and the placement was intended as a short term measure. At the time of his admission to care, WL was described as being bright, active and content but it was said that he could be demanding and have temper tantrums. He tended to be overweight. His language was very good for a 13 month old baby and he had reached the appropriate developmental milestones.

WL continued in the care of Mr. and Mrs. T until the end of March 1996 when he went to live with the appellants. The respondent had fairly generous access to WL until 22 April 1994 when, following a child-in-care review, access was reduced, first to one hour per week supervised, for four weeks, and then to one hour per month, the level at which it has continued, apart from a short period in 1995 when it was increased to one hour per week. A number of issues of concern about the progress of WL arose during the period when he was in the care of Mr. and Mrs. T, but it is not necessary for the purposes of this appeal to recite them. It is sufficient to say that in late 1994, WL was assessed for psychotherapy following which he received a lengthy course of psychotherapy given by Miss Ann Hood. The course lasted until June 1997 and by that time, great advances had been made by WL. From being a depressed and disturbed child, WL had become a child who is described as happy and articulate, who relates well to others and is capable of being very affectionate and articulating his affections. Broadly speaking, the Social Work Department was looking towards a rehabilitation of the respondent with WL until about March 1994 when the decision to pursue freeing for adoption was taken: from that time onwards, the broad objective of the Department has been to see WL adopted.

It is necessary to go into greater detail about what happened to the respondent during the period from July 1993 onwards. On 6 July 1993, she left hospital on extended leave. At that time, she formed a relationship with a man, AK, whom she had met while in Hartwood Hospital. AK had been a patient for alcohol misuse and he appears to have been violent towards the respondent during their relationship. The respondent's mother expressed concern about the relationship and its effect on the care of WL. Between 6 and 20 July 1993, the respondent was anxious and agitated and talked about wanting to abscond with WL. The respondent's mother also informed the Social Work Department that the respondent had been found wandering in the vicinity of the place they lived, with WL, not knowing where she was or what she was doing. On 27 July 1993, the date when a place of safety order was taken out in respect of WL, the respondent attempted to cut her wrists and throat in a swing park. She was detained in Hartwood Hospital under section 24 of the Mental Health (Scotland) Act 1984 following that incident. She came out of hospital some time after 27 July 1993 but returned there as a section 24 patient on 14 August 1993 and her treatment continued in September 1993. The relationship between the respondent and AK continued, and continued to be turbulent. It had effects on the care of WL, to whom, at that time, the respondent enjoyed substantial access. Attempts were being made by the Social Work Department, and in particular by Miss Miller, to make the respondent aware of the continuing concern that WL required security and stability, but the respondent was resistant to attempts to address these issues. Between January and February 1994, Miss Miller was visiting the respondent very frequently and noticed a deterioration in the respondent's appearance and behaviour; she seemed to lose interest in her appearance and she lost weight and seemed to be unable to concentrate. She complained of disturbed sleep and a lack of interest in eating. During a weekend at the end of February, while WL was on extended overnight access with the respondent, the respondent tried to hang herself and was taken to Law Hospital on a Saturday night. The respondent later told Miss Miller that the incident had occurred after she had been drinking and arguing with AK. The respondent apparently took WL to her mother's house before the attempted hanging but neither she nor her mother made the Social Work Department aware of the position, and that itself gave rise to some concern. On 23 March 1994, the respondent was arrested in relation to a charge of breach of the peace, she having overdosed or threatened to overdose and having threatened to stab herself with broken glass in a community hall. She pled guilty to the charge on 24 March and sentence was deferred on the basis that she was remanded to Hartwood Hospital. Subsequently, she was placed on a probation order for two years subject to a condition that she should comply with appropriate medical treatment. She thereafter attended the Douglas Inch Clinic in Glasgow but did not maintain her attendance.

Thereafter there is a period during which no further dramatic incidents occurred but on the late evening of 12 November 1994, the respondent called at the house of Mr. and Mrs. T demanding to see WL. The respondent's mother had warned Mr. and Mrs. T and they refused to allow her to see WL, who was in bed. The respondent made a protracted nuisance of herself and was arrested. While in police custody she made a serious attempt to hang herself, following which she was admitted to hospital. This, however, was the last occasion on which she attempted to harm herself. The sheriff finds that throughout the period since March 1994, the respondent has exercised access to WL punctiliously, albeit on a very limited basis, and that she has regularly appealed decisions relating to the limited access and that on one occasion, in 1995, a report prepared by a psychologist was submitted in support of her position in regard to access. The access has always been supervised and, until the death of the respondent's mother in September 1997, access was enjoyed by her along with the respondent.

In passing, it may be mentioned that there were some complaints by the respondent about the care taken of the child WL by the foster parents Mr. and Mrs. T. There are no details of these complaints in the findings but the sheriff finds that they were investigated and that no basis of criticism of Mr. and Mrs. T was found to exist. As matters have turned out, these complaints are in any event, not material in relation to the decision which the sheriff had to take. Similarly, a question was raised about the respondent's expressed desire that WL should be placed with a protestant family and attend a protestant school. In fact, he has been attending a catholic school but the respondent has now acquiesced in that position and the issue does not play any material part in the considerations relevant to the decision.

With regard to the state of affairs at the time of the proof, the sheriff finds that the respondent accepts that the petitioners have looked after WL very well since he went to live with them and that they love him. WL relates well to the petitioners and is developing well with them, although his behaviour can make him "a handful". He calls the petitioners Mum and Dad and has repeatedly expressed a desire to stay with them. WL has been accepted by the petitioners' extended family and the sheriff finds that the petitioners are able to provide a stable and happy home for him for the remainder of his childhood. Certain further findings of the sheriff should be quoted more fully. First of all, in finding 73, the sheriff finds, inter alia:

The sheriff then refers, in finding 74, to an incident when the respondent made an unpremeditated remark to the effect that she had a bed for WL at her house, which caused him particular upset, and continues:

With regard to the present position of the respondent, the sheriff points out that since March 1994 she has had no unsupervised access to WL and no opportunity of exercising parenting skills. However, since 1994 she has experienced none of the personal crises which disfigured her life previously. She had been examined by Dr. Lindsay (to whom reference will be made later) who found no evidence of mental illness. The respondent had previously been diagnosed as having a personality disorder, and Dr. Lindsay accepted that diagnosis based on her history and the notes available to him but found no evidence of such a disorder at the time of his examination. The respondent has not received any psychiatric treatment since 1995. She has shown herself capable of coping with stress in the shape of her reactions to a broken engagement to be married to a Mr. H in September 1995 and the death of her mother in September 1997. She has begun to mature and the sheriff finds that that process is likely to continue. Since April 1996, she has occupied a house of her own which she has recently decorated and which is adequately furnished and kept clean and tidy. She has part-time work in a local chip shop and has regularly looked after children of a neighbour who is a registered mental nurse. She has been found to be reliable and is liked and respected by the children, one of whom has a learning difficulty and requires close watching and play appropriate to a younger child. She also looks after the 2 year old child of another neighbour and regularly sees other members of her family including young nieces and nephews. Her family consider that she has become more mature. In finding 84, the sheriff finds:

On the basis of these findings-in-fact, the sheriff finds that between June 1993 and November 1994 the respondent's conduct and behaviour demonstrated a failure to discharge parental responsibilities towards WL, amounting to persistent failure for the purposes of section 16(2)(c) of the 1978 Act. The sheriff further finds in fact and law:

The sheriff was addressed in detail by counsel for the parties both on the evidence in regard to matters of fact and on the relevant law. In the note annexed to his interlocutor, he rehearses the arguments very fully. It has to be said, however, that when he comes to express his decision, the position is not so satisfactory. The sheriff merely expresses the conclusion at which he has arrived without indicating which of the various arguments addressed to him he accepted and which he did not and what factors weighed with him. Even when he comes to his decision not to grant the adoption order, which required the exercise of discretion, he does not explain what factors influenced him. In a decision of this character, what is important for the parties and the appeal court is to know what were the points which actually weighed with the sheriff. It is, of course, possible to gather from the findings-in-fact and those in fact and in law something about the view which the sheriff must have taken on some of the arguments but it is not satisfactory that this court should be obliged to search for the essentials of the decision in this way.

It does, however, appear that in deciding that the respondent was not unreasonably withholding her consent to the proposed adoption and in deciding that he should not grant the adoption order, notwithstanding his finding that a persistent failure to discharge parental responsibilities had been established, the sheriff must have given considerable weight to two factors, namely, the great improvement in the respondent's personality and behaviour since November 1994: and the respondent's desire to have continued contact with WL and the desirability, or otherwise, of such continued contact. As regards the first of these factors, there is no real dispute between the parties. It is accepted that, as is evident from the sheriff's findings, the respondent's personal situation has improved immeasurably since November 1994. As regards the latter, however, there was a clear conflict of evidence. As the summary of the findings and the extracts quoted from them above show, the appellants and the social workers who had been concerned with WL over the years took the view that continued contact with the respondent was unsettling to WL and damaging to him and were able to point to behaviour on his part which indicated a reluctance to go along with the access arrangements. On the other hand, the respondent herself felt that the access would be for WL's benefit. It is, we think, fair to say, without going into too much detail, that the respondent's position as it emerged from her evidence was that she would really like to have WL returned to her care at some time but that she recognises that, in the light of all that has happened, that is not a wish which can be attained. In these circumstances, it is evident that a good deal must have turned upon the evidence of Dr. Lindsay and Mrs. McLaren, to which the sheriff refers in finding 77.

Miss McLaren is a consultant clinical psychologist and an honorary senior lecturer at Glasgow University. She was asked to observe a period of access between the respondent and WL and did so on 16 December 1997 at the Kirknowe Resource Centre in Wishaw, a normal location for the access to take place. Miss McLaren had the opportunity to discuss matters briefly with the respondent before the access and she had also seen a report of the psychotherapy which WL received from Mrs. Hood and other social work records. Miss McLaren's account of the meeting between the respondent and WL was positive. She said, for example:

Later, there was the following question and answer:

Later again she said:

On the basis of her observation, Miss McLaren concluded that there was every likelihood that WL saw his natural mother as someone he knew well, who was part of his life and that he had warm and positive feelings towards. She expressed the view that the respondent, in spite of her major difficulties in his early life, had been the constant figure in his life in the period to the present day. On the basis of the reports, she indicated the view that when WL went into care he was essentially a child who was developing normally but that there were consequences of his being taken into care and placed with foster parents, such as the start of tantrums, which would suggest that he was miserable at the disruption to his life and bewildered by what was happening to him. Towards the end of her evidence in chief, she was asked about the appellants' discomfort because WL exhibited distress before and after he went to see the respondent and said that the fact that a child was upset before an access visit did not necessarily mean that the visit could not happen, because such a visit to someone whom a child cared about was an emotional time and children often showed anxiety prior to such a time, although they wanted the visit to go ahead. She further said that the anxiety might be linked to uncertainty about his long-term future. In particular she said:

She then went on to say that if he was in permanent residence with his current foster parents, (i.e. the petitioners) and they could be comfortable with the presence of his mother in his life, then she would not revise the opinion that it was in his best interests that there should be continued contact.

In cross-examination, Miss McLaren was pressed on the extent of her knowledge of the whole circumstances of the case and the remit which she had had. She gave three significant answers in the course of cross-examination. Firstly, she said, at page 602 of the notes of evidence:

Secondly, at page 603, Miss McLaren said:

Thirdly, at page 606, after referring to uncertainty about WL being taken away from the foster parents, she said:

Dr. Lindsay is a consultant psychiatrist who examined the respondent with a view to reporting upon her mental state. He did not at any time see WL and was not in a position to comment directly upon the access arrangements. Broadly speaking, his view of the respondent's state of health was reasonably favourable: he thought that she had matured since the period of difficulty in 1993 and 1994 although he was not, of course, in a position to express a direct view about the respondent's ability to cope with the care of a child. He said that he was familiar with Miss McLaren's work and, on the basis of her report, which he had seen, and the other reports was prepared to support the view which she had expressed. In particular, he expressed the view that there was a possibility that the loss of contact with the natural mother might have unfavourable consequences for WL.

The main thrust of the argument advanced to us on behalf of the appellants in regard to section 16(2)(b) was that, on the respondent's evidence, her real position was that she wanted WL back, on a full-time basis, and felt that she was capable of caring for him and that her acceptance of a residential order was on the basis that such an order would keep the door open for future full-time care. It was submitted that the respondent's attitude showed that she had no insight into the reality of the situation and into what was in the best interests of WL, who clearly required stability and was happy in the care of the appellants and unhappy at continued access with the respondent. The respondent, it was submitted, was being unrealistic and unreasonable because a reasonable mother would accept, whether she liked it or not, that the child was rejecting contact with her, as the other evidence indicated, particularly the evidence of the appellants and the social worker. There was no body of professional opinion which, on a proper basis, could be taken as supporting the idea that there was a risk of loss to WL if contact with the respondent was broken. It was therefore argued that the only proper conclusion open to the sheriff on the evidence had been that the refusal of consent was unreasonable.

It is well established that the test to be applied in determining whether consent is being withheld unreasonably is an objective one, namely whether or not a reasonable parent would have refused to consent in the whole circumstances. The court is not entitled to apply simply its own view of what a reasonable parent would have done, but must consider whether the refusal may fall within a range of reasonable responses. That was established in Re W. (An Infant) 1971 A.C. 682, where Lord Hailsham said, at p. 709:

Similar observations were made by Lord MacDermott, at p. 709, and Lord Hodson, at p. 718.

We have not dwelt upon the evidence referred to in the preceding summary of the argument which goes to suggest that WL has expressed or indicated distress and unhappiness on occasions of access to the respondent. It is clear that there was such evidence and, indeed, the sheriff in his findings has accepted that WL did show distress in these circumstances. It is, however, evident from the passages which we have quoted from the evidence of Miss McLaren, together with the general support expressed by Dr. Lindsay for her position, that there was a substantial body of evidence to the effect that, notwithstanding the evidence as to WL's distress, there would be a risk of adverse consequences if the contact between WL and the respondent was broken. In the face of that evidence, it would be difficult to say that the respondent's refusal of consent did not fall within the band of responses open to a reasonable parent. On the authorities, such as A & B. v. C. 1971 S.C. (H.L.) 129, this court could only differ from the conclusion reached by the sheriff if we were satisfied that he had clearly gone wrong. The sheriff heard a great deal of evidence, including evidence at length from both the appellants and the respondent. Much depends upon the sheriff's judgment of the evidence as a whole. It would be possible to interfere if there were no evidence upon which the sheriff could have formed his view or if the view was one which could plainly be said to be unfounded or to proceed without taking advantage of the opportunity given to the sheriff by actually hearing the evidence and seeing the witnesses. In this case, it is obvious that it could not be said that there was no evidence to support the sheriff's opinion, and, in view of the standing of the witnesses, we could not say that he had clearly gone wrong, even if we might have been inclined to take a different view. Accordingly it is not open to us to allow the appeal in so far as it relates to section 16(2)(b).

The respondent's appeal against the sheriff's finding under section 16(2)(c) can be dealt with rather more briefly. In the submission on behalf of the respondent, particular reliance was placed on what was said by Sir George Baker in In re D (An Adopting Parent) [1973 Fam. 209] at pp. 214-215 and especially upon the suggestion that the word "persistently" implied permanence in regard to the parent's failure. It was argued that in the present case the failure could not be said to extend beyond a period of about 17 months and that the sheriff had been obliged to limit his finding in the way that he had done. If he had asked himself whether the respondent had washed her hands of the child, he could only have answered in the negative. There were essentially three points, namely, the temporary character of the failure, the quality of it and the fact that there was a reasonable excuse. It should be borne in mind that the respondent had been in hospital and had received treatment. It was true that there was a short period when she went away and did not exercise access, which may have been connected with falling out with her mother . However, the difficulty appeared in essence to be that she had been, at least in a broad sense, ill. The distinction between personality disorder or defect and mental illness might be significant in other contexts, but for practical purposes she had been ill and a person who had been ill should not be deprived of a child against her wishes. That was why there was a reference to reasonable cause in the subsection. The respondent had in fact taken every chance open to her to keep in touch with the child. She had exercised access and had opposed the limitations on access at every opportunity.

The situation in this case is perhaps unusual. The decision in In re D rightly, in our view, emphasised the degree of seriousness which must attach to a failure in parental duty if it is to justify a decision to dispense with consent to adoption. Clearly, the failure must not be merely a temporary or excusable one, nor one whose effects are limited or transient. It must be a failure of enduring significance, at the time when the court is considering whether or not to dispense with consent. Each case, however, has to be judged on its own circumstances. It may be that, in the majority of cases in which reliance is placed on this ground for dispensing with a parent's consent, what has occurred amounts to a permanent abandonment of the child. The history, however, in the present case cannot, in our view, quite so simply be categorised as the result of a transient episode of mental illness, in a broad sense, as is suggested by the respondent. We are inclined to accept, for the purposes of argument, that the distinction between a mental illness and the effects of a personality disorder is a technical matter and may not really be relevant in considering an issue in which the ultimate test is the welfare of the child. It has to be borne in mind, however, that there was a lengthy period during which repeated attempts were being made to stabilise the position of the respondent and re-establish or rehabilitate the relationship between her and the child. It seems to have been during this period that the child, from having been a bright 13 month old, developed into a somewhat distressed 2 year old. It was the experience of this lengthy period of attempted rehabilitation which led to the decision to turn to adoption as the best course for the child in the future. Had the matter been considered immediately upon the taking of that decision, we find it difficult to see that the respondent could have argued successfully that she had not persistently failed in her parental duty. It is true that serious delays, not the responsibility of the respondent, have occurred since that time and that the effect of those delays has been to complicate the picture very considerably. Nevertheless, the evidence suggests that, although WL has improved very greatly from the state to which he degenerated during the period to which we have been referring, the effects of that period are still with him. In particular, whatever view may be taken about the evidence of Miss McLaren and Dr. Lindsay, the access process involves a continuing stress. Looking to the whole picture presented by the evidence, it seems to us that the sheriff was entitled to reach the conclusion that there had been persistent failure in the sense required by the statute, notwithstanding the substantial improvement in the respondent's health and in her attitude towards the child.

If that is correct, the remaining question relates to the sheriff's decision to exercise his discretion to the effect of not granting consent to the adoption. The sheriff correctly approached the decision as a two-stage one and, having decided that the ground set out in section 16(2)(c) had been established, went on to consider whether he should exercise his discretion to grant the order. At this stage, the lack of full reasons for the sheriff's decision presents a particularly acute difficulty. In regard to the findings under section 16, it is possible, by looking at the findings-in-fact and the evidence, to obtain a reasonably clear impression of what must have weighed with the sheriff and to conclude, as we have done, that on the material before him he was entitled to make the findings that he did. The exercise of the discretion, however, presents greater difficulties. To illustrate those difficulties, it is, perhaps, sufficient to refer back to the evidence given by Miss McLaren and Dr. Lindsay which we have set out in some detail earlier in this opinion. From that evidence, it is relatively easy to reach the conclusion that there was material before the sheriff which entitled him to conclude that there was a body of professional opinion to the effect that continued contact between WL and the respondent was desirable: and, given that view, it is not too hard to conclude that refusal of consent fell within the range of options open to a reasonable parent in the circumstances. If, however, that evidence is to be looked at in relation to the question whether a discretion should be exercised in the way that the sheriff did, given that there was a finding of persistent failure to discharge parental responsibilities, the question assumes a somewhat different aspect. In that regard, it is necessary to balance the evidence pointing towards the desirability of continued contact with the respondent, given by witnesses of undoubted weight and importance but whose contact with the respondent and WL was very limited, as against the opinions of those who had cared for WL and who had been professionally concerned with him over a long period of time. We do, of course, have the arguments advanced to the sheriff but in this particular context that is of relatively little value. In the circumstances, this court really has the choice between referring the matter back to the sheriff for an explanation of his reasons for exercising his discretion as he did or considering the whole matter afresh for itself. Given the time which has already elapsed, the latter seems to us the only practicable course.

In the ordinary case, the questions for the court in an adoption petition are, whether the child should live with the would-be adopters or someone else and whether, if the answer favours the adopters, there should be an adoption order. (Re M (A Minor) (Adoption or residence order) [1998] F.C.R. 165 per Ward L.J. at pp. 185-186). In the present case, on all the evidence, there is no doubt that the child should continue to live with the appellants. That is acknowledged, albeit perhaps reluctantly, even by the respondent and it is clearly accepted as right by everyone else. The question which really causes the problem in the present case is whether the child should live with the appellants under an adoption order which excludes contact with the respondent or whether the child should live with the appellants while maintaining contact with the respondent. If contact is to be maintained, it perhaps matters a little less whether the order made is technically an adoption order or, as the sheriff finally concluded, a residence order. When we come to look at that question, it seems to us that there are two factors, or bodies of evidence, which stand out. The first is that, as we have already said, the unanimous view of those who have been closely concerned with WL over a long period, and have also had experience of the access over a long period, is that it should not continue. It is no disrespect to the weighty evidence of Miss McLaren and Dr. Lindsay to say that the basis on which they were able to express an opinion was a relatively narrow one; and in particular that experience of the effects of access on WL, both before and after access periods, was entirely lacking in the case of both witnesses and that Dr. Lindsay had not seen WL at all. The second factor which seems to us to stand out is that, as Miss Anderson submitted, the respondent's clear wish is that she should ultimately recover full-time care of WL. We are not doubting her sincerity in saying, as she has done in the course of her evidence, that she accepts that it is desirable that WL should remain with the appellants. Nonetheless, it seems to us that the underlying direction of her wishes is in favour of recovering full-time care of WL and that is almost bound to be a destabilising factor in the long term if contact continues.

We can only have the greatest sympathy with all the parties in this very unfortunate and long drawn out proceeding. We find, however, in the end, that the balance of all the factors is clearly in favour of granting the adoption order. We shall therefore allow the appeal and grant the order sought by the petitioners.

Two other matters should be mentioned. Firstly, counsel for the appellant placed before us certain amendments to the findings in fact. Counsel for the respondent did not dispute that these amendments were in accordance with the evidence and we shall therefore allow them, although they are not, in our view, particularly material. Secondly, some information was placed before us as to recent experience of attempts at access, but in the light of the decision which we have reached, it is not necessary to deal with that information.