Scottish Court of Session Decisions

By an Application dated 13 October 1997, the City of Edinburgh Council applied to the Sheriff Court in Edinburgh for an order under section 18 of the Adoption (Scotland) Act 1978, declaring a child R.C. free for adoption. In making the application, the petitioners asked the court to dispense with the agreement of N.B., the child's mother, on the ground that she was withholding her agreement unreasonably, and also on the ground that she had persistently failed without reasonable cause to discharge her parental responsibilities in relation to R.C. A reporting officer and curator ad litem were appointed, and thereafter lodged reports. N.B. intimated opposition to the application. Proof commenced on 25 August 1998, but was adjourned until October, for supplementary reports to be obtained. After proof, the sheriff on 30 October 1998 refused to dispense with N.B.'s agreement, and refused to make an order declaring R.C. free for adoption. The petitioners appeal, contending that agreement should be dispensed with and that the freeing order should be made.

The area of dispute between the parties is limited. The sheriff has made quite substantial findings in fact, and the appellants seek only a few changes to these, to which I shall come in due course. The sheriff held that N.B. was not unreasonably withholding her agreement, and the appellants do not now quarrel that finding. The sheriff has however upheld the other ground upon which the petitioners and appellants founded, in seeking that N.B.'s agreement be dispensed with: it is held that

The respondent does not seek to have this finding of failure overturned; and the petitioners and appellants do not seek to have it altered in any way. In particular, they do not seek any finding of failure after 6 May 1998. It is undisputed that this finding of persistent failure, without reasonable cause, to discharge parental duties constitutes the "ground" specified in section 16(2)(c) of the 1978 Act. Section 18(1) of the Act provides that where, on an application such as this, the court is satisfied that a parent's agreement to the making of an adoption order should be dispensed with on the ground specified in section 16(2), the court is to make an order declaring the child free for adoption. It is not disputed that having held this specified ground to be established, the sheriff required to consider whether N.B.'s agreement to the making of an adoption order should be dispensed with on that ground, and that if he had been so satisfied, an order declaring the child free for adoption would have been appropriate, in terms of section 18(1).

The parties were agreed that section 18(1) required the sheriff to carry out a "two-stage" exercise, in the manner described in Lothian Regional Council v A. 1992 S.L.T. 858; that in making the finding of persistent failure to carry out parental responsibilities he had duly completed the first stage of that exercise; and that the second stage would consist of the sheriff considering and deciding whether he was satisfied that N.B.'s agreement to the making of an adoption order should be dispensed with on that ground. Parties were furthermore agreed that in reaching such a decision, the sheriff was obliged in terms of section 6 of the 1978 Act, as substituted by section 95 of the Children (Scotland) Act 1995, to have regard to "all the circumstances", but in particular to "regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration". Criticising the sheriff's finding that N.B.'s agreement to the making of an adoption order should not be dispensed with, counsel for the petitioners and appellants accepted that this finding, and the consequential refusal to make an order declaring R.C. free for adoption, must stand, unless this court was satisfied that the sheriff's decision proceeded upon the basis of his having made an error in law, or having taken into account some matter which should not have been taken into account, or having left out of account some matter which he was obliged to take into account, or that the decision could be described as unreasonable, either because it was a decision which no reasonable sheriff could have reached, or because no adequate reasons for the decision had been given by the sheriff.

The petitioners and appellants state three Grounds of Appeal. The first of these is to the effect that the sheriff failed to carry out the second stage of a required exercise, and to form a judgment having regard to the terms of section 6 of the Act. The second relates to advice tendered to the sheriff by the Children's Hearing, the curator ad litem and the appellants that R.C.'s primary need was for the stability and security which would be achieved by a placement for adoption; as explained and extended upon by counsel in her submissions, this ground of appeal was to the effect that the sheriff, in his findings and his Note, could be seen not to have weighed the advice in question, and had effectively included no reasoning dealing with that advice or leading to the conclusion which he had reached on dispensation. It was submitted that upon these two grounds, the sheriff's decision should be recalled, and this court should carry out the "second stage" itself, de novo.

The third Ground of Appeal relates to a particular question - the likelihood of R.C. being placed for adoption. Section 18(3) of the Act provides that agreement is not to be dispensed with under sub-section (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 had held, at paragraph 6.1 of his findings in fact, that "it is not proved that, if the present application were to be granted, it is likely that R.C. will be placed for adoption". In making this finding, the sheriff was effectively rejecting unchallenged evidence about the likelihood of R.C. being placed for adoption. He was not entitled to do so; but even if he was entitled to reject the evidence in question, then in accordance with J. & J. v C.'s Tutor 1948 S.C. 636 and T., Petitioner 1997 S.L.T. 724, "he should have given the appellant the opportunity to address his concerns about the basis for their confidence that R.C. was likely to be placed for adoption." I think it is convenient to deal with this ground of appeal, before turning to the others. I do not find it necessary to consider the cases referred to, or to consider those situations in which it is appropriate for a sheriff to provide an opportunity for more material to be adduced. In the present case, it appears to me that whether or not there is substance in the other grounds of appeal, the sheriff was not satisfied, in terms of section 18(1), that agreement should be dispensed with. That being so, there was no live issue in terms of section 18(3). But in any event, having regard to the evidence which had been given as to the likelihood of R.C. being adopted, it does not appear to me that there would have been any evident purpose, in practical terms, in seeking any further material beyond what had been said; and I have come to the view that what had been said, without contradiction, affords no reason for the finding which I have quoted from paragraph 6.1, or for the sheriff not being satisfied in terms of section 18(3) that it was likely that R.C. would be placed for adoption. The sheriff rightly says that the matter is important, going on to say that he does not think that proof of it "should depend on the unsupported assurance of a witness, however experienced." I would respectfully agree with that view. But in the present case the matter was the subject of evidence from two witnesses, Jean McEwen and Sandy McCreath, the social worker and senior social worker who provided the Adoption Agency's report of 10 October 1997, in which the view of the Agency is expressed that an adoption placement can be found within a reasonable timescale. If the matter had been left there, without further comment or explanation, then the general view expressed by the sheriff would perhaps be apposite, and his finding perhaps justified. But these two witnesses gave further evidence upon the likelihood of R.C. being adopted, both in relation to his own characteristics and by reference to recent experience with children of similar age. Their opinion that he was likely to be adopted was thus, in my opinion, a reasoned one, rather than an unsupported assurance. The sheriff acknowledges that the evidence was sincerely given, and may well have been soundly based. It also appears to have been wholly uncontradicted. In these circumstances the evidence appears to me to be sufficient to establish that R.C. was likely to be placed for adoption, and I see no sound basis for a finding that it did not do so.

It was acknowledged by counsel for the respondent that the sheriff's finding was surprising. If he had refrained from dispensing with the respondent's agreement on the basis of section 18(3), I should have held that to be in error; and I am satisfied that the finding which I have quoted is unsound, and should be amended by the deletion of the word "not" thus reversing the sheriff's finding on this point. I would however observe that even as thus amended and reversed, the finding is only a finding that it is "likely" that R.C. will be placed for adoption, if the present application were to be granted. It is not a finding that he is certain to be so placed; nor is it a finding that if placed, his future stability and security can be taken as a certainty. In its amended form, the finding disposes of any issue in terms of section 18(3). But the real issues in this case arose and arise in relation to section 18(1), and in particular the "second stage" exercise which has to be carried out for the purposes of that sub-section. That exercise, both in itself and because of the requirements of section 6, inevitably entails consideration of the future, and in particular the future of the child. On the hypothesis of agreement not being dispensed with, and the freeing order not being granted, consideration of the future may involve much that is imponderable, or uncertain, or in some degree likely or unlikely, or as having, or being liable to have, advantages or disadvantages, or indeed risks or dangers. It is however important to remember that upon the alternative hypothesis, of agreement being dispensed with and the freeing order granted, consideration of the future may likewise involve this very same range of difficulties. The exercise of the sheriff's second stage discretion will necessarily involve a weighing and balancing of the prospects as he sees them. In relation to the prospects if the freeing order were to be granted, the sheriff accepts that the Department could not be expected to have a specific couple in view at this stage as a potential adoptive couple for R.C. That is in my opinion plainly right: there is no criticism of the Department's practice of postponing specific steps towards adoption until after a child is free for adoption. Uncertainty as to where R.C would be placed is thus inevitable. But the fact that uncertainty in some area is inevitable or unavoidable does not alter its uncertainty. In weighing the prospects for R.C.'s future, the sheriff was in my opinion well entitled, and indeed obliged, to consider and weigh the degree of uncertainty which still remains as to R.C.'s future, if the freeing order were to be granted, as well as if it were not. Counsel for the respondent submitted that what the sheriff had said, in relation to the future if the freeing order were to be made, was relevant to, and had been part of, the sheriff's general consideration of the issue which arises under section 18(1). I am satisfied that the child's future on that hypothesis is a proper matter for the sheriff to have considered and weighed in relation to the second stage exercise under section 18(1), regardless of the position in relation to section 18(3). These are therefore among the matters which require consideration, in relation to the two main grounds of appeal.

Before turning to the substantive criticisms of the sheriff's reasoning and analysis, it is useful to note the way in which the sheriff has set out his findings. In the Note which follows upon his findings in fact, and in fact and law, the sheriff sets out a brief introduction, followed by an account of the evidence, including comments as to its acceptability and significance. The third and final section of the Note, occupying some four pages, is headed "the findings"; and in this section, after noting that there were few disputes on issues of fact, the sheriff observes that the submissions at the hearing were more concerned with the significance to be attached to particular facts, and "the inferences to be drawn as to how the mother is likely to behave in the future." He then says this:

It is thus entirely clear that the sheriff was well aware of the two-stage approach, appreciated that the first stage must be gone through in relation to each ground founded upon, and knew that if any ground had been established, the second stage would be reached, at which he must decide whether to dispense with the mother's agreement. With that correct view of what he had to do, it is unsurprising that in the next paragraph, he considers first the ground that the mother had persistently failed without reasonable cause to fulfil parental responsibilities. He discusses this with reference to the relevant findings of fact, and says that she has failed, but only until 6 May 1998. In relation to certain subsequent events, he says that he is not satisfied that she should be regarded as having so failed; and in relation to other matters, an identified failure is attributed to what the sheriff holds to be a reasonable cause. Thereafter he says that the mother has fulfilled her responsibility.

Having thus dealt, apparently impeccably, with the first stage of the exercise, in relation to that particular ground, the sheriff proceeds with a paragraph which was subjected to substantial scrutiny and criticism, and which it is right to set out in full:

The sheriff then turns to the other ground (that the mother is withholding agreement unreasonably) and after some two and a half pages of discussion, says that he considers: "That a reasonable parent in all these circumstances not only would recognise her failures in the past but would be entitled to think that she now has a reasonably good prospect of making a new life for herself and her children, and that therefore she should not agree at this stage to the making of an adoption order."

Thereafter, in a final paragraph, the sheriff says this:

On behalf of the appellants, it was submitted that, quite apart from issues relating to section 6 and the sheriff's handling of the advice tendered to him, the two paragraphs which I have quoted verbatim, before and after the two and a half pages of discussion, showed that the sheriff had never in fact applied his mind to the second stage of the section 18(1) exercise, in relation to the ground which he had upheld, that the mother had persistently failed without reasonable cause to fulfil parental responsibilities. In the first of those paragraphs, he had said that he would have gone onto that stage, if that had been the only ground founded on. Since it was not the only ground, he had turned to discuss the other ground. Since he had not held that other ground to be established, there was no need to proceed to the second stage in relation to that ground. But it was still necessary for the sheriff to return to the second stage, in relation to the ground which he had held to be established. In his final paragraph, however, he had moved directly from saying that he was not satisfied that the mother's agreement should be dispensed with "on the ground that she is withholding agreement unreasonably" to the final stage of refusing to grant the application. He had thus simply failed ever to carry out the second stage in relation to the other ground - the failure to fulfil parental responsibilities. It was acknowledged that the sheriff had said that if that had been the only ground, he would have gone on to second stage, and that "in the exercise of my discretion I would have refused to dispense with the mother's agreement"; but that hypothetical statement was not the decision required of him, in fulfilling the second stage of the exercise. And moreover, while he had given a brief indication of the basis upon which he would have had refused to dispense with agreement on that hypothesis, he had given no true reasoning, merely saying that he explained his view in the course of his discussion of the other ground.

I find it unfortunate that the sheriff deals with the second stage of the "parental responsibilities" ground by using hypothetical language; and that in his final paragraph he does not refer back to that ground, and the question of how his discretion should be exercised in relation to it at the second stage. But I have come to the view that these are, in themselves, matters of form rather than substance. In view of the fact that the sheriff was not satisfied in relation to the other ground, this ground became the only one upon which the petitioners could found. Taking that situation, the sheriff has in my opinion made it perfectly clear what his position is: refusal to dispense with the mother's agreement. Having made that clear, and having disposed of the other ground at stage one, it is understandable, if not ideal, that in his final paragraph he does not repeat his position on that matter, but disposes of the other matter and proceeds to actual refusal. Moreover, in saying that he would have refused to dispense with the mother's agreement in relation to the "parental responsibilities" ground, the sheriff is not stating some unexplained refusal: he expressly relates this to the second-stage exercise of discretion; he has just explained that the failure ceased at an earlier date and that there has been fulfilment of responsibility since then; and he gives as the reason for refusal the fact that in this case "past experience cannot, in my judgment, be confidently relied on as an indication that the mother will fail to discharge these parental responsibilities in the future." It is not suggested on behalf of the respondent that this provides a sufficient basis and explanation for refusal. But the sheriff likewise makes no such suggestion: he says that he explains this view in the course of his discussion of the other ground. On behalf of the appellants, it was of course pointed out that in carrying out the second-stage exercise, a sheriff must explain his reasoning in a manner which relates to the established ground in question, and which meets the requirements of the law. But it does not appear to me that a sheriff is obliged (as seemed to be suggested as some stages in the argument) to proceed in some theoretically pre-ordained order, when dealing with different grounds or indeed the different stages. It will be for him to decide what is convenient and sensible, and if he thinks that certain passages of discussion or reasoning have a place in relation to more than one matter, I see no reason why he should not do as he has done here, dealing briefly with one matter, but subject to cross-reference to the other for its explanation. I see no error in principle. However, before turning to a consideration of the sheriff's reasoning, I would observe that such a procedure by cross-reference is always somewhat hazardous, because of the risk that one's reasoning may not be equally suited to both contexts. In the present case, there was in my opinion a substantial risk in trying to use discussion and reasoning which was primarily directed to the first-stage exercise of deciding whether, from the mother's point of view, it was reasonable not to agree to adoption, as a sufficient form of discussion and process of reasoning in relation to the totally separate second-stage exercise of the sheriff himself considering and deciding, in the context inter alia of section 6, whether to dispense with the mother's agreement. The very fact that there would be many matters which the mother might take into account, or might be assumed to take into account, which the sheriff himself might have to take into account, would make it of extreme importance that there should be no confusion between, on the one hand, what one may call his assessment of her assessment of matters, and on the other hand the assessment which he himself was obliged to make (including certain obligatory elements in

In terms of its primary, first-stage function, in relation to the reasonableness of the mother's withholding agreement, the sheriff's discussion and reasoning, over the two and a half pages which I have mentioned, appears to me to be notably careful, sensitive and fair. It does not surprise me that no ground of appeal has been advanced in relation to the way in which the sheriff has carried out that first-stage exercise. But what does it provide, in the context of the other, established ground, as a foundation for the sheriff's exercise of his own second-stage discretion?

On behalf of the appellants, it was submitted that a consideration of this passage in the sheriff's Note revealed that he had in effect not carried out that second stage function at all. It was not disputed that many of the matters discussed - both as to past history and as to prospects for the future - would be relevant both to the first stage exercise on the one ground, and the second stage exercise on the other. In so far as the passage revealed factual conclusions on the part of the sheriff, they could constitute part of the material for use in relation to both exercises. Moreover, I do not think that it was disputed that where the sheriff is plainly weighing and balancing particular considerations, much of this could form a part of the material which he would use in his own second stage function, as well as building it into what he saw as the mother's position, and the reasonableness of her withholding agreement. But as one might expect, in a discussion primarily related to that latter matter, it was pointed out that the sheriff on a number of occasions expressed a view as to what a reasonable parent would be entitled to think, without expressing his own conclusion and the weight that he thought a particular consideration should have in the exercise of his second stage discretion on the other ground. The sheriff says "I consider that a reasonable parent would be entitled to think that, given certain favourable circumstances which were likely to come into existence, she had a reasonable prospect of being able to bring up R.C. herself, and that that would be better for R.C. than adoption." The sheriff then sets out a number of very important matters, on which he himself is evidently satisfied or has reached a view, including the answer "not quite, yet." to the question "Is she strong enough to cope on her own?" While this was not conceded by counsel for the appellants, it appears to me that much of this factual material, accepted by the sheriff, could reasonably be regarded as going a long way towards the conclusion that past experience (prior to 6 May 1998) could not be confidently relied on as an indication that the mother would fail to discharge parental responsibilities in the future. Indeed, I think it may be that much of this material could in principle be regarded as providing a foundation for further views, to the effect that the mother could be relied upon, with some degree of confidence, to fulfil her parental responsibilities in the future, and that this, when taken along with her love for her children, might be seen as affording some prospect of stability and security, and perhaps even a better prospect of stability and security than might emerge from the inevitable uncertainties of an adoptive future. On the sheriff's findings in fact, coupled with what he says in this passage of his Note, I am not persuaded that he has reached a conclusion which is necessarily inconsistent with the requirements of section 6, or which is wholly untenable in terms of R.C.'s future stability and security.

Moreover, in a situation such as this, where there are evident risks and considerable uncertainties as to how and when R.C. might come to be in his mother's care, and how things might go thereafter, I think that it might be reasonable for a sheriff to conclude, taking full account of section 6, that the risks and uncertainties should be faced, even if the advice is that his "primary" need is for stability and security.

What I cannot hold is that this sheriff, in this passage, has revealed his reasons for refusing to dispense with the mother's agreement in relation to the ground which he has held established. I do not think that express reference to section 6, or its terminology, is always essential. I do not feel able to say that it has definitely been ignored. But I am unable to discover whether it played its proper role. More broadly, while I can identify much that has evidently contributed to the sheriff's refusal, I find no real transposition from what the sheriff says the mother would be entitled to think, to what he himself thinks, after weighing and balancing all the relevant matters and considerations.

I have considered whether, in failing to reveal reasons for his refusal to dispense with the mother's agreement, the sheriff must be regarded as having reached a decision which is defective for want of proper reasoning, or whether this might be regarded as a case where there is merely a gap in the explanation which he has provided, so that it might be appropriate for this court simply to remit the matter back to the sheriff, so that he could report to this court, telling us what the "missing" part of his reasoning originally was. That would in my view plainly be the proper and preferable course, leaving the decision to the sheriff who originally heard the evidence and reached conclusions as to the facts, particularly in a case such as this where the sheriff has clearly given matters very full consideration. However, it does not appear to me that the defects in the sheriff's note, in dealing with the second stage of his decision, can be treated as curable in this way, or as essentially gaps in explanation rather than fundamental (and fatal) errors or failures in the required process of reasoning. I would not go so far as to say that the sheriff has wholly failed to carry out the second stage of the required exercise (as contended in the first ground of appeal); nor would I put matters quite as they are put in the second ground of appeal. But the sheriff clearly considers that the 21/2 pages which I have mentioned contain an explanation of why refusal to dispense with agreement is appropriate - and it seems to me that this passage of his note, although containing much that would be apposite to the second-stage process, does not deal with certain crucial matters, and does not bring matters together, in a process of weighing and balancing, as it would if the sheriff had carried out that second stage in the required way. In the circumstances, while I respect and would wish to abide by the sheriff's assessment of a substantial number of particular matters, I am satisfied that his decision lacks the required basis in reasoning, and the matter becomes one for us to consider de novo.

The possibility that it would be for this court to consider the matter de novo was of course appreciated when submissions were made for the parties at the appeal hearing; and counsel for both parties proceeded upon the basis that if the decision was to be made by this court, it should be made upon the basis not merely of the material which had been before the sheriff, but upon updated information. A measure of updating was attempted at the original appeal hearing, by means of ex parte statements. Thereafter, however, the court having intimated to the parties that consideration de novo was seen as necessary, updated reports were lodged, from both the curator and the Social Work Department, and further submissions were heard in the light of these updated reports, together with a certain amount of new ex parte information.

On the basis of the material which was available to the sheriff, my conclusion is, as I have already indicated, that if the present application were to be granted, it is likely that R. will be placed for adoption. The sheriff went on to hold that it was not proved that if R. were to be adopted, he would continue to have any direct contact with his mother or sister. The sheriff held that his contact with them would be likely to take the form of an annual communication by letter. At the time of the first hearing of this appeal, counsel for the appellants sought to replace these findings with a finding that "the Social Work Department agree in principle that were R. to be adopted he should have direct contact with the mother after adoption", although the Department were of course unable to specify the nature of or arrangements for contact at this stage. The Department's updated report expresses the view that an adoptive family can be identified who would be able to meet R's need for security, stability, nurture and care throughout life, within a reasonable timescale. However, the report continues "It is the view of the Social Work Department that we would be unlikely to identify a family who would be able to commit to affording N.B. direct face-to-face contact with her son during his growing up years. The Social Work Department is not convinced, however, that direct contact with N.B. and with C. would necessarily be in R's best interests given that the priority for R. must be to establish positive attachments to any new family". It appears to me, in the light of this report, that one must now proceed upon the basis that if the present application succeeds, and R. is subsequently adopted, it is improbable that R. will have significant continuing contact with his mother, and that in carrying out the second-stage exercise, it would be unrealistic for us to proceed upon any other assumption or hope. Moreover, while I would accept that R's "primary need" is for stability and security, and while in the light of both the earlier material and the updating report I would accept that it is probable that an adoptive family can be identified who would be able to meet this need, I see no general or specific basis for thinking that achieving security and stability in this way is any more than merely probable. It appears that if the prospects of stability and security are to be maximised, not only adoptive parents, but perhaps now the Social Work Department, would see it as appropriate to reduce or indeed eliminate contact with R's mother; and while I think it only realistic to proceed upon the basis that contact would thus be cut off, it seems to me that along with the gain in stability and security there is a substantial loss, for R., in this severing of contact with his mother. The sheriff has found as a fact that R. loves his mother, that she loves him, and that he is very fond of his sister. As the curator puts it in her supplementary report "I have always accepted that R. does love his mother and that she loves him. He also has an on-going relationship with his mother however unsatisfactory". It thus seems to me that if R. is adopted, the prognosis is not merely uncertain, but in a true sense unsatisfactory.

I turn to the prospects if R. is not freed for adoption. The sheriff in his note quotes an opinion expressed by the safeguarder in November 1996: "I think she does love R. and if that she was strong enough to cope on her own and if R. was her first priority, then there is no doubt that the best place for R. would be living with his mother. The sheriff was satisfied that the mother did regard R. and C. as her first priority, so that one of the conditions envisaged by the safeguarder was met; and it is when he turns to the other condition, as to whether she was strong enough to cope on her own, that he gives the answer which I have already quoted: 'not quite, yet'". I have considerable sympathy with the basic approach adopted by the sheriff, in this passage of his note. If the mother were strong enough to cope on her own, and if her children were her first priority, then even if there were substantial uncertainties as to R's future stability and security, and even if these are to be seen as his primary need, I should regard it as a perfectly tenable view, and perhaps the right one, that all-in-all, and regarding the need to safeguard and promote his welfare throughout his life as the paramount consideration, putting him with his mother should be preferred to putting him with adoptive parents.

However, even on the material available to the sheriff, that was not the real choice. Given that the mother was held not to be strong enough to cope on her own, R. could not be put with her right away. As will appear, I do not now find it necessary to go into this matter in detail, having regard to the up-to-date reports; but the fact that R. could not be put with his mother right away appears to me to have introduced a major uncertainty, and indeed the practical certainty that he would have had yet another move of home, even if eventually he could be returned to his mother. Following up his view that "in this case past experience cannot...be confidently relied on as an indication that the mother will fail to discharge these parental responsibilities in the future", the sheriff considers a number of aspects of the mother's life which could be seen as affording a hope that she would cope better in the future than in the past. But he does not seem to me to have given sufficient consideration to the interim period, with R. moving again to an interim home. Correspondingly, therefore, that matter, lying at the heart of the primary question of stability and security, does not seem to me really to have been dealt with by the sheriff in reaching his decision, even if he was right to take what one might call an optimistic view of N.B's future ability to "cope".

Quite apart from the interim period, during which the sheriff saw N.B. as not quite, yet, strong enough to cope on her own, I find it difficult to know what he thought as to the longer term prospects of her being able to cope. He accepts evidence that she has matured - but notes that after being depressed, she was now "a bit better" but "still not one hundred percent". He notes the health visitor's view that she was coping, but "just". And he also notes the evidence that there would be additional stress if she had care of R. as well as C. Having noted that she would shortly be moving to a house where she would have her father's support, the sheriff says that "It is too early to say with confidence how the mother will manage with tackling her drug problem and looking after C. in her new flat: whether, in the safeguarder's phrase, she will be 'strong enough to cope on her own'". I am uneasy as to whether that expression of opinion is at one with the earlier words "not quite, yet". And it is worth observing that after expressing what is apparently his own view - "It is too early to say with confidence..." - the sheriff reverts to the first-stage question of what a reasonable parent would be entitled to think. Overall, it does not appear to me that the sheriff himself felt much confidence that, even after an interim period, N.B. was likely to be able to cope on her own, if she had R. as well as C. in her care. Even if one assumes that he was well-founded in his conclusions as to her priorities, her greater maturity, the improved prospects connected with accommodation and support and the overall prospects including coping with her drug problem, it does not appear to me, looking at the matter de novo on the same material, that one would be justified in having much confidence that N.B. would indeed provide R. with the stability and security which he needs. Weighing his future in her care, against his future with adoptive parents, and even ignoring the serious interim problem of another interim home, I would feel bound to conclude that his prospects of a stable and secure future look significantly better in the adoptive home; and it may be that upon the material available to the sheriff, that adoptive future should be seen as achieving more in terms of R's welfare, even when one allows for what I see as the substantial disadvantage of being severed from his mother.

The sheriff does not seem to me really to have weighed that question in the appropriate way. It appears to me to be an agonisingly difficult question. But in considering the matter de novo, I see this court as faced with a rather different question, given the terms of the updating reports; and I do not find it necessary to answer the hypothetical question of what conclusion I would have reached, without those reports.

The updating reports cover a period between October 1998 and February 1999. That is a quite substantial period, during which increasing signs of an ability to cope might have been expected to emerge, if what I have called the "optimistic" assessment had been well-founded. Not everything has in fact gone badly. As counsel for the respondent submitted, the respondent is now perhaps freer of the undesirable influence of C's father; coping with C. alone, she seems to have been doing well; while her need for drugs persists, she has at least recently apparently been managing with such drugs as are prescribed; and without going into detail, her prospects of reasonable accommodation remain. Nonetheless, in a notably careful and sympathetic update report, the curator ad litem concludes that N.B. "has no serious intention of addressing her drug problem"; and in relation to access and contact with R., records persistent failures and lateness. Since R. is not living with her, these access visits and contacts lie at the heart of her parental responsibilities, and any failures must plainly give rise to unease about R's welfare if he is not freed for adoption. In a number of ways, there are conflicts between N.B. and the Department, in their accounts of particular occasions and their assessment of what happens. I do not feel able, or bound, to resolve such conflicts in every case, far less to "hold them against" N.B. where there is doubt or has perhaps been misunderstanding. But there appear to me to be incontrovertible, and virtually incomprehensible, failures to see or be with R., both at Christmas and when he required a minor operation under general anaesthetic. The impact of these failures upon R. was worrying, but appears to have been contained; and I would not wish to put any undue weight on his particular reactions on these particular occasions. But N.B's evident inability to fulfil her parental responsibilities to R. in these special circumstances of Christmas and a surgical operation (particularly at a time when N.B. must have known that the sheriff had shown some confidence in her) are in my opinion strong indications that N.B. is not able to provide R. with the stability and security which he needs, even in the relatively undemanding context of access and contact, as opposed to actual full-time care. Nor do I regard N.B's ability to cope with C. as telling one very much about how she would cope with both R. and C., if ever she were to be faced with having them both in her care. The curator ad litem says that she was "very favourably impressed by N's handling of C."; but she goes on to point out that R. did not come to the attention of the Social Work Department while he was a baby, and the Department's update report contains the following passage: "In the opinion of the Social Work Department the needs of R. (as an older child and as a child with disrupted attachment to his mother) are significantly different to those of a young baby. It is the view of the Social Work Department that the likely outcome of the very great challenge to N.B. of caring and meeting the needs of both children would be that the limited coping resources of N.B. would be overwhelmed to the detriment of both children". While I feel great sympathy for N.B., and do not in any way underrate the love which she and R. evidently feel for one another, her apparent inability to fulfil her parental responsibilities, even on important occasions, drives me to the conclusion that these opinions of the Social Work Department are well-founded, and that N.B. is not merely unable to cope on her own meanwhile, but suffers from an inability to cope on her own which seems to me very likely to persist, for at least a substantial period of time. I do not indeed see any real basis for expecting her to be capable of fulfilling parental responsibilities, with full care of R. or even at the level o

Upon that basis, it seems to me that the prospects of security and stability for R., if the freeing order is not made, are very poor indeed, not merely because of the inherent requirement of yet another interim home, but upon an assessment of the long term probabilities. Even if one puts very great weight upon the reciprocal love of mother and son (which I am prepared to do) and even if one assumes that the future in an adoptive family entails major uncertainties as to R's stability and security, and welfare in every sense (which again I am prepared to do) I find myself driven to the conclusion that having regard to all the circumstances, R's welfare demands that a choice be now made, and that the choice must be in favour of freeing him for adoption. When the matter required to be considered by the sheriff, it was possible and perhaps right to proceed upon the basis that the mother's persistent failure to fulfil her parental responsibilities was perhaps a thing of the past, with her more recent fulfilment of those responsibilities being regarded as a better guide to the future. But events since October 1998 fit with the previous history of persistent failure, and make the period when responsibilities were being fulfilled (which was in any event not wholly free of failures) appear as a limited and temporary success, which in the context of prior and later conduct cannot be seen as a reliable indication for the future. Both of the updated reports take the view that R. should be freed for adoption, and I am persuaded that they are right.

In these circumstances, I am satisfied that the appeal must succeed: the Sheriff's interlocutor should be recalled, agreement dispensed with and the freeing order made.

I have had the opportunity of considering the opinion of your Lordship in the chair in this case. I find myself in complete agreement with its reasoning and conclusions.

It having been established that there has been a persistent failure, without reasonable cause, to fulfil parental responsibilities in relation to R. on the part of N.B., and this court having concluded that the sheriff's approach to the second-stage process was flawed, the focus of our attention must be upon the application of the criterion set out in section 6(1)(a) to the facts found, as supplemented by the contents of the supplementary report by the curator ad litem and the updated report furnished by the appellants' Social Work Department. Looking at the whole picture presented, I have come, with reluctance, to the view that the welfare of R. throughout his life would best be promoted by the making of an order declaring R. free for adoption. In reaching this conclusion, I am particularly influenced by the ongoing uncertainty which would surround R's future if the freeing order were not to be granted, and the evident need which he has for a permanent home. The recent experience of N.B's attempted discharge of her parental responsibilities unfortunately gives one no real hope that R's need for stability in the future could be met by her.

I agree that an order should be pronounced in the terms proposed by your Lordship in the chair.

I have had the opportunity of reading the opinion of your Lordship in the chair and I am in entire agreement with it.

The sheriff found as a fact that R. loves his mother and she loves him and felt able to reach the conclusion that there was a reasonable prospect that she would be able to make the necessary changes to her lifestyle to enable her to fulfil her parental responsibilities. The updated reports indicate that despite her stated resolve to do so, she has failed to address her drug problem and, most significantly, has persistently failed in relation to contact with R. If the freeing order is granted and R. is eventually adopted there does not now seem to be any realistic prospect that he will have any significant continuing contact with his mother. The preservation, by continuing contact, of the unique and powerful bond which exists between a natural mother and her child will always be an important consideration for the court but it should not prevail over other considerations; nor should a mother be given unlimited chances to redeem herself at her child's expense. In this case, the possible advantage to R. of maintaining what recent experience suggests is likely to be limited and sporadic contact with his mother has to be weighed against the urgent fact that by remaining indefinitely in fostering limbo he is missing out on the possibility of achieving stability and security in an adoptive family.

I agree that the appeal should be allowed and that an interlocutor should be pronounced in the terms proposed by your Lordship.