Scottish Court of Session Decisions

[1] This is an application by the petitioners, a local authority, in terms of section 18 of the Adoption (Scotland) Act 1978 to make an order declaring a child free for adoption. The grounds of the application were that the child's mother, the respondent M.A., was, firstly, withholding agreement to adoption unreasonably in terms of section 16(2)(b) of the Act and, secondly, that she had failed and persistently failed without reasonable cause to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare in terms of section 16(2)(c) of the Act as amended. On 20 March 2001 the sheriff granted the order sought, holding that both grounds put forward by the petitioners had been established.

[2] The relevant facts are set out fully in the sheriff's interlocutor and note and in the first instance it is only necessary to give a brief summary of them. The respondent, M.A. was born on 21 December 1979. The child B was born on 29 July 1997. The identity of the child's father has never been disclosed. The child was born prematurely but discharged from hospital when he was three weeks old. Thereafter the respondent and the child resided with the respondent's mother and her husband, the respondent's step-father, who are referred to in the sheriff's findings and note as "the grandparents". The main carer of the child from his discharge from hospital until he was accommodated with foster parents in July 1998 was the grandmother. The grandparents have three other children and on 31 May 1985 the grandfather pled guilty to a contravention of section 5 of the Sexual Offences (Scotland) Act 1976 in respect of the use of lewd and libidinous behaviour towards one of those three. This incident led to a period of statutory supervision but that supervision was discharged in 1989. In about the summer of 1997, the respondent commenced a relationship with C.H. and in about the autumn of 1997 the respondent and C.H. were cohabiting while the child remained with the grandparents and was visited daily by the respondent. In about November 1997 the child was found to have sustained some injuries and as a result a number of steps were taken, including the calling of a child protection case conference, but the sheriff held that it was not established that any injuries sustained by the child on this occasion were other than accidental and, accordingly, it is not necessary to say more about this incident, the circumstances of which are fully set out in the sheriff's findings. However, on 27 or 28 June 1998 the child sustained a serious injury to his scrotum as a result of an assault which would have entailed the use of moderate to severe force. The sheriff accepted that this assault was not committed by the respondent, and that it must have been committed by one of three people, namely the grandmother, the grandfather and C.H. Following this incident, the child was taken into care on 30 June 1998. On 1 July 1998 he was placed with foster parents where he remained until 29 November 1999. Since that time he has been placed with prospective adopters. The present application was made on 22 October 1999.

[3] Section 16 of the Adoption (Scotland) Act 1978 is headed "Parental Agreement". Section 16(1) provides inter alia that an adoption order shall not be made unless each parent or guardian of the child agrees freely and unconditionally, or the court is satisfied that his agreement to the making of the order should be dispensed with on one of the grounds specified in subsection (2). Subsection (2) provides inter alia

[4] In this petition, the local authority founded both on subsection 16(2)(b) and (c)(i). The sheriff held that both grounds founded on had been established. It is, however, sufficient for the authority to establish one of these two grounds. The greater part of the discussion in the appeal was directed to section 16(2)(c), but the issues in relation to section 16(2)(b) are more straightforward and we propose to consider the sheriff's findings in relation to that subsection first.

[5] In giving his decision under subsection (2)(b) the sheriff notes that the respondent accepts that she can never be the child's full-time carer and can never discharge the role of mother in relation to the child: and that someone else will have to assume that role. However, the mother believes that that situation should be brought about by means of fostering rather than adoption because she believes that she could still be of benefit to the child, principally through contact with him. The sheriff goes on to formulate the question as being whether that decision in the particular circumstances falls within the band of possible reasonable decisions which a parent might make. He continues:

[6] The sheriff then goes on to refer to a number of factors. Firstly he points out that the relationship between the respondent and the child could be likened to that between a child and a much older sister and that the natural bond between mother and child had not formed. Secondly, he notes that, good as the respondent's relationship with the child is, the child did not miss contact when it stopped. Thirdly, he notes that were contact to be allowed it would virtually impossible for the mother to ensure that the various members of her dysfunctional family and C.H. would be excluded from contact with the child. Fourthly, the sheriff notes that it would be virtually impossible for the mother to ensure that the three suspects in respect of the serious assault on the child in June 1998, the grandmother, the grandfather and H, would be excluded from contact with him. The circumstances relating to the assault are discussed in more detail later in this opinion. In that connection the sheriff says that he considers it significant that the mother still does not seek to identify which of the suspects perpetrated the assault and indeed that it seemed to him, from her answers to questions put by him, her position might be that she did not really accept that the assault occurred at all. Having regard to these factors, which he discusses in more depth, the sheriff concludes that contact would at best be of minimal benefit to the child and at worst would create the potential for serious harm, that being something which a reasonable mother would have recognised and, having recognised it, would not have withheld agreement. Lastly, the sheriff notes that it is proposed that in the event of adoption proceeding the mother will be allowed indirect contact, thereby giving her an opportunity to ensure that she does not disappear entirely from the child's life. Having reached that position, the sheriff observes that he has not ignored, but has given full weight to, factors operating in the mother's favour, including her pleasant personality, her good relationship with and strength of feeling for the child, the difficulties which she experienced as a young single mother, the mixed messages she sometimes received from the social work department and others in regard to the prospect of the child being returned to her, the degree of success which she has achieved in acquiring parental skills and the absence of any criticism of her general character.

[7] In the argument on this point, it was not suggested on behalf of the mother, that the sheriff had plainly misdirected himself or purported to apply an incorrect test. It was submitted, however, that the sheriff had failed to address the question of the purpose of continued contact between a birth mother and a child living with other carers. The purpose of that contact related to the future development of the child rather than any immediate enjoyment. There was evidence from Mrs. Bechhofer (827A-D, 829-834) and Dr. Lindsay (1095C-1096E) to support that proposition. The fact that the mother's relationship with the child had not developed as a carer was a positive factor in this situation, not a negative one. The potential positive benefit to the child of contact with the natural mother as the child developed was nowhere reflected in the sheriff's reasoning. Secondly, it was submitted that in so far as the sheriff's reasoning proceeded on the mother's inability to exclude her family and H. from contact with the child, that suggestion had nowhere been put to the mother herself. Contact with the mother was not per se undesirable and she had confirmed that she would exercise such contact by herself. There was evidence from Dr. Lindsay that she would exercise contact responsibly and no reason had been advanced for rejecting that evidence. The social work department would be able to organise contact. A reasonable mother capable of co-operating with arrangements to obviate the concerns which the sheriff had would not be obliged to see the problem as so extreme that she must consent to adoption. It was true that the social worker Mrs. Grandison had expressed a fear of indirect or subliminal messages being passed from the family, but that was not something upon which the sheriff had founded. Thirdly, the sheriff had erred in perceiving the alternatives as being long-term fostering on the one hand and adoption on the other. The appellant was not proposing long-term fostering but a residence order under which the child's carers would have parental responsibilities and rights in terms of section 11(12) of the Children (Scotland) Act 1995. The mother was offering to co-operate with such an arrangement. That offer had been discussed in evidence (951-956) and not cross-examined on, and had been confirmed in the submissions to the sheriff as it was again confirmed before this court. The mother was known to be well disposed and co-operative by nature. It was to be noted that the authority's proposal in this case was not that there should be any form of open adoption. The social worker Mrs. Wood had indicated that the desire of the prospective adopters was that the child should be their child. An arrangement of the kind suggested by the mother was in conformity of a line of well-established authority. Reference was made to a number of cases, in particular to Re. M (Minors)(Adoption: Parents Agreement) 1985 F.L.R. 921. That approach was consistent with the emphasis placed in authorities under Article 8 of the European Convention on Human Rights on the primary objective of preserving family life by reuniting children with their parents: reference was made in particular to Johanson v Norway 23 EHRR 33 at page 71.

[8] Counsel for the local authority pointed out that there had been no access by the mother to the child at all since November 1999. Until February 1999 there had been unsupervised contact but that had been suspended following the receipt of certain information related to C.H. In April 1999 the decision had been taken to proceed to freeing for adoption and all contact had stopped in November 1999. What the submissions for the mother failed to address was the absence of any real evidence of benefit from contact between this mother and this child. Looking at the evidence, in particular Mrs. Bechhofer at 838 and Dr. Lindsay at 1118, there was no specific of evidence of any benefit to this child from contact with this mother. Such evidence as there was was related only to generalities as to the contact between a mother and a child. The sheriff had not overlooked the possibility of a residence order. There was a technical question as to precisely what type of order might be made under the 1995 Act but whatever the order might be, it would involved a sharing of parental rights and responsibilities and would only be capable of being settled after further litigation. The evidence for the authority had established the reasons for preferring adoption as the solution in this case: reference was made to the evidence of Mrs. Wood at 561-562. More generally the court had to be satisfied that there was some error in the sheriff's reasoning and the submission for the mother had failed to identify any such error.

[9] In our view it is not correct to say that the sheriff overlooked the evidence in relation to the possible benefit of contact between the mother and the child. He refers to that evidence in summarising the submissions on behalf of the mother and says:

[10] In introducing his assessment of the factors which would have induced a reasonable mother to grant consent, the sheriff refers back to the findings in fact and to the submissions in relation to the benefits of contact. Further, it seems to us that the submission as quoted by the sheriff does correctly reflect the thrust of the evidence on which the mother relies in this context, albeit it does so briefly. In considering this evidence, it should be borne in mind that the witnesses distinguished between direct contact between mother and child, and indirect contact by means of information passed through third parties. Mrs. Bechhofer is a highly qualified child psychologist who prepared a report in connection with a children's panel hearing in 1999. She had been asked to assess the attachment between the child and the mother and to comment on the situation as presented to her in a number of reports made prior to that time. She had also had an opportunity to observe the mother and child at a contact centre. On that basis, and looking at the situation from the point of view of the interests of the child, Mrs. Bechhofer expressed the view that it was likely to be in the best interests of this child that a freeing for adoption should go ahead (813). Her report also expressed the view that there should be some minimal form of contact, i.e. indirect contact about progress. She went on to stress the importance of stability for this child in relation to the family with whom he was to be placed (816). Later, she expressed her concurrence with a view which had been expressed by a safeguarder that rehabilitation of the child with the mother was not a realistic option. In cross-examination, Mrs. Bechhofer agreed that the fact that there had been so little contact between the mother and the child reduced the possibility of conflict in the child's mind between the roles of the adoptive parent and the birth mother, a point referred to earlier in the summary of the sheriff's findings. She was then asked about her view of the effect of contact and agreed that it was important for the child to have some sound information about where he came from. There is then the following passage in the evidence.

Mrs. Bechhofer was further cross-examined on behalf of the mother but, as we read the evidence, she did not add to or depart significantly from the very carefully qualified expression of opinion given in that passage.

[11] Dr. Lindsay is a consultant psychiatrist who saw the mother in January 2001 with a view to assessing her mental state and overall ability, as compared with her previous psychiatric report in 1999. He had access to previous reports and interviewed the mother for about an hour but did not see the child. He formed, generally speaking, a favourable impression of the mother and her attitude towards parenting and her feeling for the child. At the end of his evidence in chief, he was asked how realistic it would be for the mother to think she had something to offer the child by way of contact and replied:

[12] In cross-examination Dr. Lindsay agreed (1109), that there were views on both sides of the question. He did not express himself at any point as unequivocally in favour of direct contact between the mother and the child. Accordingly, in our view, Dr. Lindsay and Mrs. Bechhofer were substantially in agreement. They expressed themselves as favouring some form of continuing contact but recognised that problems might be involved in direct contact. It is, in our view, quite fair, as counsel for the authority submitted in this appeal, to characterise their evidence as being general and as not pointing to any specific benefit from direct contact to this child in this situation. We therefore do not think that it can fairly be said that the sheriff failed to take any material evidence into account in this part of his decision.

[13] The second main criticism of the sheriff related to the question of avoiding contact with members of the mother's family, including C.H. Much of the discussion of the evidence relevant to this point took place in the context of the case under subsection (2)(c)(i). This evidence primarily related to the allegation that the mother had failed to take steps to protect the child against a repetition of the serious risk evidenced by the injury which the child had received. The problem in this part of the case arises from the mother's apparent failure to recognise that a serious injury had been inflicted on the child by one of three people and that it was her responsibility to take steps to protect the child against these persons. As is evident from the evidence, the question in this context is not one in relation to the mother's willingness to exercise contact with the child responsibly, but to her capacity to do so, including, under that head, her capacity to recognise the risks to which the child may be subjected. In short the position is that, for reasons which in themselves may be quite understandable, the mother had not shown that she does recognise the risks involved. It is true that, as we mention later, the mother agreed that the child be taken into care and has supervised any subsequent contact between the child and the grandparents or C.H. That is an important circumstance in relation to the case under section 16(2)(c), but it is much less significant in relation to section 16(2)(b). In this context, what is most significant is the mother's appreciation of and attitude towards the possible risks to the child. As counsel for the authority put it, the authority have to go upon past experience and past experience has not favoured the mother's position in this respect. It is, we think, true that in cross-examination the mother was not directly challenged on the question of her ability to exclude contact with her family but nonetheless there was evidence which, in our view, entitled the sheriff to take the approach which he did in this part of his judgment.

[14] The third criticism of the sheriff on this part of the case related to his alleged failure to recognise that what was being offered was a residence order arrangement, not long-term fostering. In our view, this criticism is largely beside the point. It seems to us that the sheriff was applying his mind to the realistic or practical situation which would arise if some arrangement other than adoption were to be entered into. He described the situation as one of long-term fostering, but the factors to which he paid attention would equally apply if there were some other legal arrangement such as a residence order or an order relating to parental responsibilities. In our opinion, nothing was said which would significantly detract from the sheriff's reasoning given that that is the basis of his approach. In addition, there is in our view clear merit in the argument on behalf of the authority that any attempt to make a new legal arrangement by way of a residence order or some similar arrangement would involve further proceedings, and very possibly further litigation in regard to sharing parental rights and responsibilities and there is no guarantee whatever that prospective adoptive parents would be prepared to contemplate any such arrangement.

[15] In all the circumstances, we do not think that the submissions on behalf of the mother give any reason to think that the sheriff erred either in his application of the law or his appreciation of the essential factual issues and material evidence in regard to this part of the case. The assessment of the evidence in detail is primarily a matter for the sheriff who heard it. We are satisfied that he did not overlook any material features of the evidence of misconstrue it in relation to the questions which he had to decide. In these circumstances, in our opinion, the appeal in relation to the sheriff's findings under section 16(2)(b) must fail.

[16] We turn now to consider the submissions relating to the sheriff's conclusion that the ground specified in section 16(2)(c)(i) was established. No issue arise in this appeal in relation to the words "without reasonable cause" in section 16(2)(c). Mrs. Scott accepted before the sheriff that the circumstances provided no basis for a finding that there was "reasonable cause" for persistent failure, if persistent failure were properly established. The substantive matters at issue in this court were:

(a) Was there a failure by the mother to fulfil this particular responsibility?

(b) If so, did she fail to do so "persistently"?

[17] The failure that the sheriff identified was that, following the assault, upon the child (then 11 months old) during the weekend of Saturday 27 and Sunday 28 June 1998, the mother took no steps to protect the child by giving such assistance as she could and should have done to identify the perpetrator of the assault. The sheriff also found that the mother "has persisted in that failure until the present day".

[18] The background, as disclosed in the evidence, and very fully narrated in the findings in fact and the sheriff's Note, is that, over the first part of that weekend, the child was in the care of the mother and C.H. and thereafter was in the care of the grandparents and sustained injuries. As the doctors who subsequently examined the injured child could not say exactly when the injuries sustained in the assault were inflicted, it was not possible to reach a soundly based conclusion as to which person or persons had care of the child at the time when he was assaulted. None of those who had had contact with the child over that weekend provided any account of how the child sustained the injuries. It followed that the authorities could not identify the assailant on the basis of the available evidence. The sheriff accepted that the mother herself was not the culprit. In his Note, he says

The injuries were serious, were deliberately inflicted and left visible signs of bruising. These are fully described in the clinical forensic services report of 29 June 1998 to which the sheriff makes reference. The pain suffered when the injuries were inflicted must have been immediate, acute and severe. The force used was estimated to be moderate to severe. The main visible results of the injury were deep bruising of the scrotum and associated swelling. There were associated small bruises around the scrotum suggestive of fingertip bruising. As the child would normally be wearing a nappy, these findings on medical examination point to the probability that the injuries, or at least some of them, were inflicted while the child was not wearing a nappy. On the Sunday, the mother took the child to the grandparents' house and showed the grandmother the signs of injury. The two women took the child to a general medical practitioner and the child was then admitted to the Sick Children's Hospital. Following that admission to hospital, the mother agreed with those in the social work department responsible for supervising the child that the child should be taken into care; he was taken into care on 30 June 1998. The social workers tried to find out from the mother, and others, how, when and by whom the child's injuries were inflicted. The grandmother suggested that it was possible that a dog, the family pet, had jumped at the child and caused the injuries. This explanation was dismissed as "incorrect". No other explanation was given by the mother or by any of the three possible culprits. The mother asserted that C.H. could not have inflicted the injuries because she herself had been present on any occasion when he might have had any opportunity to assault the child. She could not bring herself to conclude that either of the parents had assaulted the child. There was evidence that her relationship with her father was so strong that she had refused to have anything further to do with her own brother and step-sister after each had alleged to her that he (the grandfather) had abused them. The sheriff, on the basis of ample evidence, concluded that the mother's failure to take any steps at all to identify who had assaulted the child, arose out of her denial, or refusal to acknowledge, that any one of the three suspects could be responsible for the assault. At times she appeared to be taking the position that there had been no assault.

[19] The ground of appeal for the respondent is stated in the following terms:

The submissions advanced by Mrs. Scott in support of this ground are cogently summarised in paragraph 2, "The alleged persistent failure to fulfil parental responsibilities", of the Note of Argument for the appellant. It is appropriate to deal with the submissions in the order in which they appear in that Note.

[20] In para. 2(a) it is said

Finding 19 reads:

We agree with Mr. Moynihan, counsel for the local authority, that this criticism is less than fair to what the sheriff in fact said. Having distinguished the circumstances from circumstances often encountered in other cases "where children have been subjected to extreme neglect and ill-treatment in virtually every possible aspect of their upbringing over a prolonged period of time", the sheriff states,

What the sheriff was explaining was that he was not dealing with a prolonged course of conduct manifested by a series of different incidents collectively eloquent of neglect of the child's needs; he was dealing with one grave neglect of duty consisting, at best for the mother, of a refusal to face up to the fact that someone very close to the mother, someone who had been allowed by the mother to have contact with the child, had seriously assaulted and injured the child during the time of that contact. The sheriff concluded that, by so refusing, she had denied herself the opportunity to help to identify the culprit with a view to protecting the child from the risk of repetition of serious abuse. Fortunately such a case is no doubt "unusual". Nonetheless the gravity of the assault and the danger of exposing the child again to the culprit certainly provided a clear basis for the sheriff to consider the application of the subsection. His use of the word "narrow" in this context does not suggest that the mother's conduct was only marginally reprehensible. He was, in our opinion, entitled to regard her failure as being grave.

[21] In paragraph 2(b) of the Note of Argument it is stated "The respondents did not found upon this point in bringing the case. It was proposed by the sheriff in the course of submissions and adopted." That does not appear to us to be a point of any substance or materiality. If the evidence properly admitted in such proceedings reveals a matter of importance bearing upon the child's health, development or welfare then, in proceedings of this character, there would have to be some quite exceptional reason for the sheriff to ignore that evidence. It is not at all unusual for matters of significance to be highlighted by a judge in the course of a hearing: that is a valuable feature of our system of oral pleading. The sheriff was entitled to regard this evidence and the legitimate inferences from it as being relevant for his consideration even if the local authority did not initially attach the same importance to it.

[22] It is next stated (para. 2(c)) that "The sheriff has gone further than in any reported case"; and reference is made to In re D (Adoption by Parent) [1973] Fam. 209; RG and RAG Petitioners 1999 Fam L.R. 64 and L v. Central RC 1990 S.L.T. 818. There was no finding of culpability. This paragraph of the Note of Argument suggests that to dispense with consent, "...in summary adoption on the basis of a narrow failure is a disproportionate response and would represent a violation of Article 8 (of the European Convention of Human Rights)". Apart from any E.C.H.R. dimension to the case, this appeal ground is in part a repetition of the point made in paragraph 2(a) and in part is related to the submission, already considered, about the ground specified in section 16(2)(b). The weakness of this submission is that the facts in each individual case are invariably different and indeed are unique. The common element in reported cases is the existence of a parental responsibility to safeguard and promote the child's health, development and welfare. The number of ways in which that responsibility can be neglected, whether wilfully or otherwise, is very large. This criticism therefore appears to us to contain no more than a general comment. The essence of the matter is to discover if the sheriff was entitled, upon the facts established before him, to hold that there had been a persistent failure by the mother to fulfil her parental responsibility.

[23] In paragraphs 2(d) and (e) the appellant suggests that the sheriff was imposing upon the mother "a duty of investigation of crime against...her child". The submission was that the mother had no such duty and was entitled to rely upon investigation by the police and social work authorities. This criticism completely misses the point that no effective investigation could be carried out by any person or body outside the family in the face of the refusal by the mother or any of the others to assist in identifying which of the three suspects had carried out the assault, or even when it had been carried out. There was evidence that in the case of the mother herself she had coped with the situation by denial and "by avoidance" because she lacked confidence in her ability to deal with unpleasantness and difficult issues (volume 1(e) page 755, in the evidence of the psychologist, H.D. Shannon). In the case of the family circle, including C.H., there was evidence of a "climate of secrecy" surrounding the incident, with the result that no explanation was forthcoming from anybody about what happened that weekend: see the evidence of Miss Barry (who acted as "safeguarder" in connection with the child) - vol. 1(e), p. 730. In our view the sheriff was entitled to conclude that the evidence supported the conclusion that, in failing to take any step that would assist a proper investigation of the circumstances of the assault, the mother was guilty of a failure in the statutory responsibility to "safeguard and promote the child's well-being by reducing the risk of his exposure to danger". The point made in the Note of Argument in paragraph 2(e) to the effect that the mother's failure to assist the authorities arose from "a subjective or cognitive difficulty" does not appear to us to be a basis for criticising the sheriff's conclusion. If the mother truly suffered from a personality defect such that, rather than face up to the unpleasant and unwelcome reality that was manifest immediately after the assault, following the examinations by the doctors, she effectively buried her head in the sand, then, in the absence of any evidence or finding of "reasonable cause" we consider that the sheriff was entitled to hold that objectively there was a failure within the meaning of the subsection. We see no reason to conclude that it was necessary for the sheriff to hold specifically that culpability was established; if there was no reasonable cause for acting as she did, there was ample justification for finding that she failed in her responsibility.

[24] In support of paragraphs 2(d) and (e), it is submitted that, whatever the mother might have done or failed to do in relation to identifying the culprit, she had in fact agreed to the taking of the child into care. She had accepted the grounds of referral dated 20 July 1998 (printed on page 22 of the Record) to the effect that the child had been assaulted. She had supervised such contact as there was after June 1998 between the child and her own family, she was co-operating in a regime which protected the child from the risk of harmful contact and she acknowledged that one of the benefits of his being with his current family was that he was safe. Furthermore (paragraph 2(g)) the local authority continued to plan on the basis that the child would be restored to the care of the mother. They did not change their mind in this regard until they received adverse information about C.H. in 1999 and began to take the steps which resulted in the application to free the child for adoption. The evidence shows that this summary is not inaccurate; but it is not the whole picture. The evidence - including particularly her own evidence at page 902, vol. 1(g) - makes it clear that she agreed because she had no alternative. The passage in evidence reads:

Furthermore she did have repeated and unsupervised access to the child and did allow the other members of the family to have contact with him. It was not until just before proof of the grounds was about to be led before the sheriff that she accepted the Grounds of Referral adverse to C.H. (p. 986).

[25] This submission bears upon the issue whether or not the mother "persistently" failed to fulfil her parental responsibility. Her failure to assist the authorities to identify the person who assaulted her son, and indeed her failure to face up to the fact that he was assaulted by one or other of the three suspects, was undoubtedly persistent. However, the narrow and separate point is whether or not, once the child had been placed beyond risk by being taken into care and while he remained in care, the mother was then persisting in a failure to safeguard and promote the child's health, development and welfare. The placing into care immediately followed the discovery that the child had been assaulted. This matter is not specifically addressed by the sheriff. What he says in his Note (at page 79) is:

Thus the sheriff concentrates on the failure to do what a parent should have done to identify the perpetrator, but does not specifically address the question as to whether she might have fulfilled her parental responsibility in relation to protecting the child, by agreeing, albeit under pressure, to his being taken into care, and by her subsequent acceptance that he should remain with the family with which he has now been placed. The sheriff does not consider this as a distinct matter nor does he refer to the evidence (for example the respondent's own evidence at page 959 et. seq.) that, even after June 1998, she often had access on her own and brought the child into contact with the grandparents and C.H. (none of whom was called as a witness). Thus there might well have been a basis for a specific finding that she did neglect her duty by exposing the child to contact with the possible culprits and that thus her failure was persistent. On the other hand, there was evidence from her that she supervised any such contact and thus protected the child against any risk of repetition of the assault. There was certainly nothing in the evidence to suggest that the child came to any harm when, after June 1998, he was in the company of the grandparents or of C.H. There was also evidence from the appellant, not rejected by the sheriff, that in any future contact she would keep the child away from the three possible culprits. For the reasons given earlier in this opinion, that evidence is not, in our view, of much weight in relation to the case under section 16(2)(b), but it is possibly significant in relation to the question whether the appellant has persistently failed in her duty.

[26] In the light of the submissions and the evidence to which we have been referred we are not persuaded that the sheriff has demonstrated a sound basis, either in finding in fact 19 or in his Note for the use of the essential word "persistently" in finding in fact 30. In our view, he was not entitled, without further consideration of the evidence relevant to this matter and without an explanation of his thinking on this precise point, to hold that the ground specified in section 16(2)(c)(i) was established. Had this been the only ground for dispensing with parental consent we should have found it necessary to have this matter reconsidered, whether by the court or by the sheriff. However, in the light of our conclusion in relation to the failure of the appeal in relation to section 16(2)(b), it is not necessary for this court to have the section 16(2)(c)(i) matter reconsidered.

[27] In all the circumstances, therefore, this appeal falls to be dismissed.