Scottish Court of Session Decisions

[1] This is an appeal by the appellants, who are the natural parents of J, from an interlocutor of the sheriff at Aberdeen dated 24 July 2000 whereby, upon an application by the respondents in terms of section 18 of the Adoption (Scotland) Act 1978, ("the Act"), the sheriff granted an order freeing J for adoption. J was born on 5 September 1997. The order was made following proof at a hearing at which each appellant was separately represented and which occupied some nine days between 14 September 1999 and 8 December 1999.

[2] In this appeal Mr. Kelly has appeared on behalf of both appellants. He made clear that no challenge was being made to the findings in fact set out in the sheriff's judgment. From those findings in fact it is plain that the sheriff found the evidence led for the respondents to be acceptable.

[3] At the outset it is important to note that each of the appellants suffers from some degree of mental impairment by way of learning difficulty and that the second appellant, the natural father, also suffers from tunnel vision and epilepsy. These matters are referred to in some detail in the findings in fact, which likewise set out the history of events and the timescale over which these events occurred prior to the respondents' decision to apply for a freeing order. The application for a freeing order was made on 17 December 1998. In it the respondents requested the court to dispense with the consent of each of the appellants on the ground that they were withholding their agreement unreasonably and had persistently failed without reasonable cause to fulfil the parental responsibility to safeguard and promote J's health, development and welfare, all in terms of section 16(2)(b) and (c) of the Act.

[4] From the facts found by him, the sheriff concluded that both appellants were withholding their agreement unreasonably, being the ground specified in section 16(2)(b), and that the first appellant had persistently failed without reasonable cause to fulfil the parental responsibility to safeguard and promote the health, development and welfare of J, being the ground specified in section 16(2)(c)(i). From the interlocutors it appears that shortly before the first day of the proof the first appellant had entered into a parental responsibilities and parental rights agreement under section 4(1) of the Children (Scotland) Act 1995 with the second appellant. From his note it appears that the sheriff accepted a submission for the second appellant that, amongst other things, until 3 August 1999, when the foregoing agreement was registered, the second respondent did not have such a parental responsibility as was referred to in statute and that prior to that date he realised that he did not have the appropriate rights to allow him to undertake any such parental responsibilities. The sheriff accordingly dispensed with the agreement of the first appellant on both grounds and that of the second appellant on the one ground.

[5] Before we consider in detail the submissions for the appellants, we take note of certain of the findings in fact of the sheriff relating to events on and after 13 August 1998. On that date a child in care review was held at which the social worker allocated to the case, Suzi Adam, recommended that J be freed for adoption. Ms. Adam, who gave evidence before the sheriff, told the review that she had already considered, but rejected, options as alternatives to adoption. These options included a prolonged period of foster care. This option was not considered desirable for J since it provided no guarantee of a permanent placement for him. Nor was what was termed "open adoption" considered a suitable option, since that would involve continual contact requiring a degree of mutual understanding between prospective adopters and birth parents. Further it was considered that the appellants would find such an arrangement very threatening and difficult to do. At the conclusion of the review meeting the review agreed with the social work department's recommendation. That recommendation was subsequently endorsed by a child protection case conference on 19 August 1998. Thereafter in accordance with the long-term plan for the adoption of J, contact arrangements in respect of both appellants were slowly reduced. A suitable family was thereafter found as prospective adoptive parents and J was duly placed with this family and the existing supervision requirement appropriately varied on 18 December 1998. From the findings in fact there was ample material to establish that the respondents, in complying with their duties under section 6 of the Act, had regard to all the circumstances but, as they were bound to do, regarded the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration. Further, there was ample material to establish that the respondents had complied with the duty imposed on them by section 6A of the Act to consider alternatives to adoption before making any arrangements for the adoption of J. Indeed, it appears that J had settled down well in his new placement with his prospective adoptive parents by mid-August 1999. Furthermore, although at that time supervised monthly contact between J and the appellants was continuing, in June 1999 the review committee recommended that the freeing process should continue, one of the main reasons being that it was felt that freeing for adoption was appropriate at that stage because to move J from placement to placement would disturb his attachment behaviour, which in turn could affect his development.

[6] In presenting his submissions, Mr. Kelly accepted that the sheriff, in his approach to the task which he required to carry out, namely that of determining whether the agreement of the appellants should be dispensed with, had correctly identified the relevant tests in conformity with the two stage approach set out in Lothian Regional Council v. A 1992 SLT 858. The first stage was to decide whether the grounds referred to in the application were established by the evidence. However, in looking to the question of whether each parent withheld agreement unreasonably, an answer required to be sought by the application of an objective test. But that test had to be read against the requirement for the court, in terms of section 6(1)(a) of the Act, not merely to have regard to all the circumstances but to regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration. The second stage was to decide whether an order dispensing with the agreement of each of the respondents ought to be made, again taking account of the provisions of section 6(1)(a).

[7] Mr. Kelly put forward five grounds for criticism of the sheriff's judgment. Firstly, there was no indication in the sheriff's judgment of the reasoning whereby he reached his determination to grant the freeing order. Accordingly, Mr. Kelly said, the sheriff's decision required to be set aside. Secondly, in the course of the decision-making process, regard had to be paid to the mental impairment of the parents in considering whether to make the freeing order. Thirdly, in the particular circumstances of the case, because of their mental impairment, all that his parents could realistically offer to J was continuing contact. Thus special circumstances might be said to prevail which made it reasonable for them to withhold consent in order that contact might be maintained, always dependent upon such contact being conducive to the best interests of J. Fourthly, at the very least, in approaching the second stage, even if the grounds for dispensing with the agreement of the parents had been established, then the mental impairment of each of the appellants was a relevant factor when considering whether in the exercise of its discretion, the court should grant the freeing order, always dependent upon continuing contact being conducive to the best interests of J. Fifthly, the sheriff had to consider whether some other order would safeguard the welfare of J. In the event, the sheriff should have dismissed the application so as to enable a residence order to be made in favour of the carers, namely, the prospective adoptive parents. It was accepted that any application for such an order would require to be made by the carers.

[8] Before proceeding further, we take note that the third, fourth and fifth propositions do not find any place in the grounds of appeal nor do they appear to reflect the submissions made to the sheriff on the part of either appellant as recorded by the sheriff in a very full note. Also we note that underlying the whole of the submissions put forward by Mr. Kelly was the proposition that the sheriff's judgment was flawed because he failed to consider the possibility that the natural link between the appellants as J's parents and J himself could be preserved by a residence order, such being in the best interests of J. This does not appear to be an option that was explored in detail in the evidence. The manner in which the argument was presented before the sheriff, on behalf of the first appellant, is recorded by the sheriff as proceeding on the basis that the local authority had failed in its duty to explore the possibility of psychological treatment and had failed properly to discuss the alternatives to adoption at the review on 13 August 1998. Before this court, Mr. Kelly did not attempt to argue that the local authority had failed in any duty with regard to the provision of psychological treatment because, as was accepted for the appellants, there was no realistic possibility of their undertaking full-time care of J. This concession also undermines the submission advanced before the sheriff that the respondents had failed properly to discuss alternatives to adoption at the review. When regard is had to the sheriff's findings on this matter, it is clear that those present at the review gave very full consideration to the alternatives to adoption including what was referred to as "open adoption" which was not considered suitable since it involved continual contact requiring a degree of mutual understanding between prospective adopters and birth parents, an arrangement which the latter would find very threatening and difficult to do. By the same token a prolonged period of foster care was not considered desirable for J since it provided no guarantee of a permanent placement for him.

[9] However, it is to be noted that very considerable stress was laid by those representing the appellants before the sheriff upon the importance of the natural link between parents and child. Reference was made on their behalf to authorities emphasising this, including the opinion of Lord Prosser in City of Edinburgh Council v. B 1999 SCLR 694 at p. 704 about "the substantial disadvantage" (to a child) "of being severed from his mother". Accordingly when the sheriff came to consider the submissions of the parties directed to the ground specified in section 16(2)(b) of the Act, he should have identified and addressed this issue much more clearly than he bears to have done in his Note. What he did was, first of all, to state, correctly, that the answer was to be sought by reference to an objective test, conform to dicta in A. v. B and C 1971 SC (HL) 129 and in particular to the speech of Lord Reid in that case. He next took note of the provisions of section 6(1)(a) of the 1978 Act as amended. He then stated that, having had regard to "the present circumstances" as set out in his findings in fact and having borne in mind "the various factors" which had been referred to in the submissions for the respondents on this aspect, it seemed to him that "in all the circumstances - notwithstanding the submissions (of the appellants' representatives) - no reasonable parent, when the whole history and time-scale are viewed objectively, would withhold agreement to the making of the adoption order." However, this does not by any means make clear the line of reasoning which led him to his conclusion and to that extent the criticism made of his determination is justifiable. Against this background we have reached the view that, in this one respect, the sheriff's judgment can be said to be flawed. We should, however, add that the concession referred to above appears to us to detract from any implied criticism by Mr. Kelly of the sheriff's conclusion that, in relation to the ground specified in section 16(2)(c)(i), the first appellant by her actions and attitude over the years had persistently failed without reasonable cause to discharge her parental duties in relation to J. However, it is unnecessary to consider this matter further since it was not a ground which applied to the second appellant.

[10] However, for good reason, rather than remit the case back to the sheriff court either with a direction to the sheriff to give reasons for his determination or with a direction that the application be heard afresh, we were invited to consider the matter de novo since this is a case in which the facts are not in dispute. We agree that this is a sensible course, more particularly since no challenge has been made to the sheriff's finding that he accepted as credible and reliable evidence from the witnesses called for the respondents, upon which evidence he based his findings in fact. That being so, the first question to be addressed is whether, applying the objective test to all the circumstances but regarding the need to safeguard and promote the welfare of J throughout his life as the paramount consideration, a reasonable parent would have withheld consent.

[11] There are reasonably clear indications within the sheriff's note that he drew the inference from all the circumstances proved before him and recorded in the findings in fact, that J's welfare throughout his life was best safeguarded and promoted by adoption than by any other course. Thus he must have accepted the review's conclusion that neither "open adoption" was a suitable alternative nor was continued fostering desirable. At the same time it is also clear that he accepted that a permanent placement was in the best interests of J for, when considering whether an order dispensing with the agreement of the appellants should be made, he stated that it seemed to him "that it was essential for the child to enjoy the prospect of a continuous period of stability living in a settled and loving environment whose surroundings were familiar and reassuring, and likely to be permanent". Later, the sheriff concludes that "there would be an unacceptable risk to the welfare of J if he were now to face a further major disruption in his young life by being removed from the settled environment of his present household". But, of course, considerations of welfare are relevant at the stage of determining the point arising under section 16(2)(b) in relation to each appellant, as they are at the "second stage" determination which the court requires to make before an order freeing a child for adoption can be made. The foregoing statements of the sheriff are, in our opinion, fully justified upon the findings in fact both as to the past circumstances of care of the child by the appellants with the problems of supervision attached to such care and as to the manner in which J had settled in with his prospective adoptive parents. They form material to which regard was to be paid in determining the "first stage" question.

[12] In our opinion, what the findings in fact demonstrate in the present case is that notwithstanding the need, if possible, not to sever the natural link between J and his natural parents, that need is clearly outweighed by considerations material to the welfare of J himself throughout his life; the provision for him even now of a settled home where he can be properly cared for is an important constituent of the relevant welfare considerations. They further demonstrate that such provision can be made only by way of adoption. Against that background, we consider that no reasonable parent having regard to all of the conflicting factors could have decided otherwise than that consent to adoption should not be withheld. By the same token, we are satisfied that the sheriff was thereafter fully entitled to conclude that the agreement of the appellants to the making of the adoption order ought to be dispensed with on the grounds specified by him and that an order freeing J for adoption should be made. In reaching this latter conclusion we have not overlooked the submission, presented for the first time in the course of the appeal, that the welfare of the child could be safeguarded by having J brought up in a household other than that of the appellants under the operation of a residence order granted to those third parties (presumably the prospective adoptive parents) so that at the same time the natural link could be maintained. The sheriff can not be faulted for not dealing with such a suggestion. It was not in any way explored at the proof either with those who expressed their professional opinions in relation to the issues of adoption and the alternatives to adoption or, and more to the point, with any knowledge of the attitude of the prospective adoptive parents, standing the concerns otherwise expressed for ensuring a settled environment for J. It is sufficient to say that nothing said by Mr. Kelly on this point indicated that there was any substance in the submission. Rather, the passage of time since the hearing before the sheriff and the overwhelming weight of the evidence, unchallenged as it was, pointing to the desirability of adoption even against the wishes of the natural parents satisfies us that the submission, untested in evidence as it was, must be rejected.

[13] In the end of the day we are driven by the weight of the evidence before sheriff to reach the same conclusion as he did. While it may be said that the reasoning of the sheriff was deficient in the one respect identified above, there is no doubt in our minds as to the correctness of his conclusions in the matter, derived from the evidence which he accepted and from the inferences properly to be drawn from that evidence. The appeal is accordingly refused.