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Cite as: [2002] ScotCS 108

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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

AD11/01 and AD12/01

		JUDGMENT OF SHERIFF IC SIMPSON
		in the application of
		NORTH LANARKSHIRE COUNCIL
		Applicants

		Against


		AW
		Respondent
		To have two children freed for Adoption

Act: Aitken, North Lanarkshire Council, Legal Department

Alt: Buttery, Freelands, Motherwell,

Loughlin, Robert Carty & Co., Airdrie (for JA, the natural father)

AIRDRIE: 04 April 2002

The Sheriff, having resumed consideration of the cause, finds in fact as follows:

1 The male child J was born on 06 November 1996. The female child A was born on 05 July 1998. Both children now live within the jurisdiction of this court. They are the children of AW and JA. JA signed both birth certificates and both children have been given his surname.

2 AW and JA have never married. They plan to marry in the latter half of April 2002. Although they have been separated at least twice, they have been partners almost continuously since 1996. The applicants' social work department have regarded them as a couple in their dealings with them.

3 JA has no order for parental rights or responsibilities under section 11 of the Children (Scotland) Act 1995. Although he has no intention of applying for such an order, or of entering an agreement with AW under section 4(1) of that Act, he wants to continue to have contact with both children.

4 When she was fifteen, AW's mother died in a house fire. AW went to stay with an aunt. She met JA and went to live with him at his aunt's home when she was seventeen. J was born later that year, 1996. Prior to his birth AW gave up her YTS placement as a trainee hairdresser.

5 AW's father drank very heavily and suffered from liver disease, diabetes and angina. He lived in New Stevenson. AW cared for him during the later stages of his life. For some months before his death in February 1999 she went to his house about five days per week and spent a number of hours there most days. She made meals, shopped and tidied for him.

6 JA is two years older than AW. His mother became ill when he was aged one and he was brought up by his aunt, HA, and his grandmother. He attended a special school. After a few YTS placements he has been unemployed for some years.

7 Both JA and AW started to drink to excess from about the age of sixteen..

8 In July 1998 JA, AW and J moved to a local authority tenancy in Viewpark. The child A was born in the same month. They had no family or friends there. They were harassed by locals. On one occasion JA was punched by a local youth.

9 JA and AW were unhappy. They separated about October 1998. J went with JA to live with HA. AW stayed in the house at Viewpark with A. After a period of six weeks or more apart, they reconciled.

10 The family was registered with a GP in Holytown. They did not change to a GP local to Viewpark until December 1998. Had they wanted to visit their doctor in Holytown the journey, by public transport, would have involved changing buses. In an emergency they could have gone straight to Monklands Hospital. People moving into a new area are encouraged to enrol with a local GP.

11 After the family registered with a GP local to Viewpark in December 1998, the health visitor attached to the practice experienced difficulty in gaining access to the family, whom she regarded as vulnerable.

12 Children should be inoculated against dyptheria, tetanus, whooping cough and polio in a series of inoculations given at eight, twelve and sixteen weeks of age. By December 1998, A should have had all three. By February 1999 she had, at most, one.

13 A had a supra-umbilical hernia. AW and JA were advised that this needed treatment, but they missed a hospital appointment to have it checked out.

14 Both parents were warned by the health visitor and a community medical officer that it was important to keep hospital appointments for A and to get her inoculated.

15 The health visitor did a two-year assessment of J. Apart from slow speech and a turned-out leg, it was normal. He had relatively few toys and wandered about, watching the tv.

16 Both children appeared to the health visitor to be well-fed and growing.

17 The house was unkempt and unclean. There was a stagnant fish tank (which the children would be unlikely to reach), dirty clothes lying about, unwashed dishes and children's food lying about where a dog might get at it. There was frequently dog excrement on some of the floors.

18 The health visitor made two referrals to the social work department in relation to the family. One arose out of an anonymous phone call alleging that J was left unattended. The other arose out of her continuing difficulty in gaining access to a family she regarded as vulnerable. The health visitor, Sheila Lindsay, did not have the feeling that the children were being neglected. She was concerned regarding the lack of contact she had with the family.

19 In January 1999 J was found wandering about Holytown unattended. AW and JA had entrusted him to the care of HA. He had been taken from HA by another relative.

20 About 02 February 1999 police attended in respect of an anonymous call which turned out to be unfounded although the house was dirty.

21 At this time AW was spending much of her time looking after her father.

22 At this time, and for nearly all of the time during which the children were in their care, AW and JA drank excessively. They were in the habit of each consuming a bottle of Buckfast tonic wine and a bottle of "hooch" in an evening. AW's hangovers lasted well into the following day. Numerous visitors were allowed to come to the house to drink. AW and JA carried on a lifestyle centred on alcohol. This made them unreliable and apt to miss appointments.

23 About the end of February 1999, JA and AW were so upset by the harassment they received at the hands of neighbours that they moved to HA's house in Holytown. The house in Viewpark was extensively vandalised soon after they moved out.

The applicants' social work department were concerned by a number of things in relation to the family: excessive drinking, both by them and their visitors, dirty living conditions, their inability to provide and maintain a home suitable for children to live in, and their failure to keep medical appointments and appointments with social workers. When given advice AW and JA appeared to understand it but did not act on it.

25 Between March and September 1999 AW and JA stayed with HA. Her house was crowded and AW and JA stayed in one room with their children. The housing authority wanted them to return to Viewpark but they refused to do so. They were given homeless accommodation at Old School Court, Coatbridge but stayed their infrequently and were evicted because they did not use the facility.

26 The family moved to a private tenancy which JA had found at Newarthill. The house was in poor condition. The porch leaked and the ceiling started to come in.

27 On 11 October 1999 J and A were made subject of a supervision requirement by the children's hearing. This followed the establishment of grounds of referral at Hamilton Sheriff Court. The grounds related to the concerns of the social work department summarised in finding 24 supra.

28 AW and JA failed to address the above matters and the social work department were increasingly concerned by this failure.

29 On 17 November 1999 police officers were called to the family home. JA had fought with his female cousin. She had hit him on the head with a bottle. JA was intoxicated. AW was sober enough to care for the children, although she had been drinking. The house was unclean. The children were locked in their room. On the following day JA was still under the influence of alcohol. The house was dirty, with excrement on the floor of the spare room. The couple were warned of the dangers involved in locking children in a room. They explained that they had done so because J was in the habit of wandering about while the couple were in bed and turning on the gas in the kitchen. AW and JA were advised to put a lock on the kitchen door. On 19 November 1999 they were not in when social workers visited for a pre-arranged inspection, but on 21 November 1999 the family support team found the couple in and reacting positively to the advice given to them.

30 On 19 December 1999 police officers received an anonymous call regarding distressed children at the couple's house. They attended at 5.30 am. JA was the only adult in the house. He was drunk. The children were barricaded in their bedroom. They were very distressed. AW and JW had not desisted in this practice despite the advice given to them the previous month. J was fully clothed and his trousers were soaked in urine. A was wearing a nappy soaked in urine and excrement. A puppy's excrement was on the living room and bedroom floors and the house was very unclean. The previous evening JA and AW had drank excessively. A visitor had been in the house. JA and AW had an argument. AW walked out about 4.00 am and went to her brother's house.

31 J and A were removed to the home of HA under section 65 of the Children (Scotland) Act. They appeared later to be happy and content and not unduly affected by the events of the previous night. JA and AW did not visit the social work department until Tuesday 21 December. They were instructed not to have contact with the children except at times authorised by the social work department. They did not attend a case conference on 30 December 1999 despite having been given notice of it.

32 On 11 January 2000 the children were placed on the Child Protection Register under the category of neglect. To minimise distress to the children they were kept with HA. AW and JA were to have supervised contact with the children three times per week.

33 The social work department arranged for J to attend Holytown Nursery. He found nursery stressful at first, but settled in well. His vocabulary, poor initially, improved greatly. He attended until the end of 2000, four afternoons a week.

34 From 26 January 2000 contact was reduced to weekly on Wednesday afternoons from 2.00 to 4.00 pm at Parents For Change in Bellshill, to be supervised by a social worker.

35 AW and JA were referred to alcohol counselling at Bellshill Cross but attended irregularly and took no serious step to reduce their drinking.

36 AW and JA were referred to parenting skills classes at Newarthill Community Centre but did not attend.

37 On 15 February 2000 AW and JA failed to attend an appointment A had at Yorkhill Hospital for her hernia despite having been reminded by social workers two days before and being given an alarm call on the morning of the appointment. Their presence was necessary to deal with issues of consent to treatment.

38 Supervised contact was only partially satisfactory. Sometimes the parents were late or needed to be encouraged to interact with the children.

39 Despite the insistence of the children's hearing that contact should be supervised, the parents were spending several hours at HA's house most days of the week, during which time they saw the children. They bought nappies for HA, and, from time to time, bathed the children and performed other tasks for HA.

40 While the children were at HA's, they were not given a proper routine. J slept on the floor out of choice and his clothes were often dirty. The children were slow to respond to HA's instructions.

41 In March 2000 JA and AW were evicted from their private tenancy in Newarthill. It was in a very dilapidated state.

42 On a number of occasions about March 2000 the couple were warned by social workers that unless they showed some improvement in their lifestyle, showed that they could establish a proper home for the children, reduced their drinking and demonstrated a real commitment to their children, the social work department would make plans for the long-term care of the children.

43 Despite these warnings AW and JA showed no improvement. They continued to miss appointments with the social work department and with others. They missed supervised contact on a few occasions, for reasons that included visiting relations in Dumbarton and having a meeting about a tenancy.

44 After staying for a time with AW's brother in Holytown, the couple obtained a two bedroom private let in Mossend.

45 On an occasion in about May 2000 when HA was admitted to hospital with bronchitis AW and JA alerted standby social services because they knew that they should not be looking after the children.

46 On 09 August 2000 at Hamilton Sheriff Court AW and JA were each sentenced to probation with 180 hours community service in respect of pleading guilty to contravening section 12(1) of the Children and Young Persons (Scotland) Act 1937 on 19 December 1999. The case attracted considerable publicity in broadcast news and in both local and national newspapers. AW and JA were very affected by the publicity. JA was assaulted outside Bellshill social work department offices. He was reluctant to go out.

47 AW and JA attended parenting classes at Thrashbush Parenting Centre, Wishaw, but as they could not be accompanied by their children they were advised that there was little point in continuing to attend.

48 AW and JA separated a few weeks after the court case. AW stayed with her brother and formed a new relationship. This relationship dominated her thoughts and she felt that, in relation to the children, everything was slipping away from her. Her interest in them declined for a period.

49 JA obtained a tenancy in Holytown. His main concern was his housing situation. He talked about going to stay in Balloch.

50 In general, AW had interacted with the children better than JA. Her supervised contact with them was more productive. She had a greater awareness of the children's situation and needs, and a better understanding of the concerns expressed by the social work department.

51 Following the publicity surrounding the parents' court appearance, the social work department investigated what had been happening. About 08 September 2000 they decided that rehabilitation was not an option and that long-term care was going to be necessary.

52 On 12 September 2000, HA, JA and the children went shopping on a day when J was off sick from nursery. It was not a scheduled contact. They were observed by a social worker.

53 On 15 September 2000 J and A were taken from HA and placed with temporary foster parents, Mr and Mrs T. J was in dirty clothes without underwear. His speech was slow. A was aggressive and had tantrums. Both children appeared unemotional and needed much mental stimulation.

54 On 27 September 2000 the children had contact with HA. Afterwards they were aggressive and swore. J wet the bed.

55 The social work department's plan had originally involved a rehabilitation of the relationship between the parents and the children. They had persisting concerns regarding the quality of the care at HA's house, and the failure of the parents to address their problems, in particular alcohol abuse and their housing situation. Although they strongly suspected that HA was allowing unauthorised contact to take place, they underestimated the amount of unauthorised contact. When the parents showed less interest in the children than they might during supervised contact this was in large part because they were seeing the children regularly during unauthorised contact, and not, as the social work department supposed, due entirely to disinterest or hangovers, although these were sometimes factors which reduced the quality of the supervised contact.

56 At a Looked After And Accommodated Child Review meeting on 02 October 2000, the situation was reviewed. While it was noted that AW was attending Bellshill Cross for alcohol counselling irregularly, the over-view taken in relation to both parents was that no significant progress had been made. On the view that contact was purposeless, it was reduced to monthly and contact with HA was reduced to every fortnight. The meeting resolved to consider long-term plans at the next review.

57 On 05 October 2000 AW and JA had their first contact with the children since they were accommodated by Mr and Mrs T. JA wanted to finish the contact early but AW tried to read to the children. The children cried for five minutes when they left their parents. When they got back to Mr and Mrs T they were both very distressed. J was sick and A was aggressive. It took the children several days to settle down after contact.

58 Apart from the upset surrounding contact, the children flourished at Mr and Mrs T's. However they were slow to respond to stimuli and seemed uncertain of how to react to the outside world.

59 By mid October 2000 a possible permanent placement had been identified and the social work department's plans for the children had crystallised into adoption. At a Looked After And Accommodated Children Review on 26 October 2000, while it was noted that the parents, who were being seen separately, were making some progress with alcohol counselling, the view of the social work department was that the time-scale involved in sorting out the lives of AW and JA, who were still apart, would be too long for the children. It was decided to pursue an adoptive placement for the children.

60 In general, adoption offers long-term security to children and their adoptive family which alternatives to adoption do not. The children are no longer supervised by social workers and do not have to return at regular intervals to the children's hearing.

61 The social work department, which is an adoption agency, undertook no formal consideration of the alternatives to adoption in respect of J and A. Such alternatives were not discussed at the meeting of 26 October 2000. However the social work department were fully aware of the benefits of adoption compared with other sorts of long-term care, and opted for that on the view that it was the best option for the children. They regarded the need to safeguard and promote the welfare of the two children as the paramount consideration.

62 On 08 November 2000 the children's hearing supported an early move to the identified long-term carers. Contact with the parents was to be supervised and left to the discretion of the social work department to allow flexibility in the children's interests. It would not be terminated without the issue being brought back to the children's hearing.

63 Initial meetings between the proposed adopters and the children took place in November 2000 and progressed very well. The children were moved to the prospective adopters on 24 November 2000.

64 The children have made great progress since their move from HA's in September 2000. This improvement has been maintained at the prospective adopters, whom they call "mum" and "dad." For a time J responded markedly better to instructions from a male than from a female but this is no longer the case. The children now express excitement and emotion as children normally do. They have enjoyed at least two holidays. They are happy and settled. Their minor medical needs are being met. They attend school and nursery respectively. They enjoy playing with their toys and reading. There has always been a strong bond between the children and they have formed a strong bond with the prospective adopters. Life story work with J has been undertaken. Initially he was very reluctant to discuss his past, but has sometimes said things about events that have happened during his early life.

65 On 06 December 2000 the children had their first contact with AW and JA after moving to the prospective adopters. The children were not distressed when they left AW and JA but were distressed later. J was sick and both were unsettled and aggressive, swearing and answering back. It took them several days to settle down again. They behaved similarly after contact on 28 December 2000. After some subsequent contacts the children have been unsettled.

66 About early 2001 AW and JA reconciled. They attended regularly for contact which, from their viewpoint, went well. HA's contact with the children was phased out and ceased completely later in the year. At the invitation of the social work department, on 20 April 2001 both AW and JA signed forms agreeing to the placing of J and A for adoption. At a Looked After And Accommodated Children Review on 04 May 2000 contact between AW and JA and the children was reduced to three-monthly. The stated reason for this was because of the children's distress after contact, but the real reason was that such a reduction would lead to an eventual termination of contact as that would be in line with the department's plans for adoption. AW and JA have been fully informed of their rights in relation to appeals and have been repeatedly advised to seek legal advice. They have not appealed any decision.

67 The decision to reduce contact to one supervised meeting each three months was supported by the children's hearing on 12 June 2001. They had been told of the children progressing well but being unsettled, hyperactive and aggressive following contact. They gave advice on adoption to this court.

68 Contact has continued on a three-monthly basis. It has been basically satisfactory to the parents but on 15 August 2001 JA was using a mobile phone and wanting to go for a cigarette during the one hour meeting. At the contact meeting in February 2002 J did not speak to AW but reacted positively to JA. A spoke to AW.

69 AW and JA have had a tenancy at Newmains since the summer of 2001. AW became pregnant and was strongly advised by her family to address her excessive drinking. She did so during her pregnancy. The couple's third child, DA, was born on 31 December 2001 and was immediately made the subject of a child protection order. This development caused both AW and JA to give up drink. Apart from one occasion late in January 2002 they have remained sober since then. They continue to attend alcohol counselling. Initially the contact with DA was supervised but they have been allowed unsupervised contact. The social work department is very pleased with their progress and hope to be able to let DA live with them in due course.

70 AW and JA want all three children to live with them. JA has said that, in February 2002, J asked if he could come back home with them. The parents' hope is unrealistic. They have given no real thought to the emotional and practical difficulties involved in moving J and A from their present secure home back to their care. Both AW and JA are anxious that, whatever happens, J and A should know that AW and JA loved them. AW sees little point in three-monthly contact but JA would like any contact at all with the children.

Finds in fact and in law:

It is likely that JA would be refused an order under section 11 of the Children (Scotland) Act 1995 in relation to either J or A were he to apply for one.

Between July 1998 and 19 December 1999 AW persistently failed without reasonable cause to safeguard and promote the health, development and welfare of both J and A.

This failure continued in relation to both children until September 2000.

4 AW is unreasonably withholding her agreement to an order freeing each of J and A for adoption.

5 AW's agreement to the making of orders declaring J and A to be free for adoption should be

dispensed with, and the orders sought should be granted.

As the issue of contact between AW and JA on the one hand and J and A on the other requires to be dealt with by the children's hearing, no determination that either J or A shall cease to be subject to a supervision requirement should be made.

Therefore, in terms of Section 18(1) of The Adoption (Scotland) Act 1978, the sheriff dispenses with the agreement of the natural mother, AW, and declares the children J and A, fully designed in the applications, to be free for adoption; makes no order in terms of section 18(9) of the said Act; finds no expenses due to or by any party.

NOTE:

1 As will be apparent from the findings in fact, the applicants' social work department decided to pursue plans for the permanent care of both children in September 2000. On 26 October 2000 the decision to pursue adoption rather than any other course was formalised. By the end of November 2000 the children were placed with long-term foster parents who soon became prospective adopters. On 12 June 2001 the children's hearing advised the sheriff that freeing the children for adoption would be in their best interests. Applications seeking to have the children declared free for adoption were lodged in this court and a curator ad litem and reporting officer was appointed on 09 July 2001. She had some difficulty in contacting AW, who hesitated before deciding not to agree to the orders sought. JA also did not want to see the children adopted. The reporting officer concluded that there was little likelihood of him applying for an order under section 11 of the Children (Scotland) Act 1995. As curator she concluded that it would be better for the children that the orders were made than that they should not be made. On receipt of her reports a procedural hearing was fixed for 17 October 2001 and intimation was made to both AW and JA. At the procedural hearing each parent was separately represented. I ordered a condescendence and answers to be drawn up and continued the case to a further procedural hearing on 06 December 2001. 14 January 2002 and subsequent days were assigned for a full hearing. On 06 December, JA's minute was received and he was sisted as a party. It was apparent that a further procedural hearing would be necessary. That took place on 20 December. On that date I was advised that AW was due to give birth about Christmas. There was general agreement that she would be unfit to attend and participate in the hearing fixed for January. It was discharged and 11 - 15 March was assigned. Further days were necessary and after full days on 21 and 22 March, I took the case to avizandum on 25 March 2002.

2 The applicants led evidence from Mairi Noble, the social worker who had dealt with the case, Paul Boyle, the senior social worker who supervised Mrs Noble, and Ann-Marie Shields, a senior childcare officer. They also led a teacher at the nursery attended by J during 2000 and a health visitor. AW and JA were both called to give evidence. No further witnesses were heard. Much of the evidence on which the applicants relied came from AW and JA, in particular in relation to their drinking and unauthorised visits to HA when she looked after the children.

3 In most cases of this kind, I deal with the position of a natural father not married to the mother first, to get what is, generally, a minor issue out of the way. In the majority of cases the position of the natural father is simple: if he can be identified at all, he has usually been out of the picture for years. Not so here. "Parent" is defined in section 65(1) of the Adoption (Scotland) Act 1978 as follows:

"Parent" means, irrespective of whether of not they are, or have been, married to each other -

(a) the mother of the child, where she has parental responsibilities or parental rights in relation to him;

(b) the father of the child where he has such responsibilities or rights; and

"However, a father will become a parent whose agreement will be required if he acquires parental responsibilities or parental rights in relation to the child when he subsequently marries the mother of the child and thereby legitimises the child. This development occurred in one case during the currency of the litigation (A v B and C 1971 SC HL, 129." - McNeill, Adoption of Children in Scotland, Third Edition, page 117.

Section 18(1) of the 1978 Act provides:

"(1) Where, on an application by an adoption agency which is a local authority, an authorised court is satisfied in the case of each parent or guardian of the child that - (a) he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or (b) his agreement to the making of an adoption order should be dispensed with on a ground specified in section 16(2) the court shall, ..., make an order declaring the child free for adoption."

Section 18(7) provides:

"Before making an order under this section in the case of a child whose father is not, and has not been, married to the mother and does not have any parental responsibilities or parental rights in relation to the child, the court shall satisfy itself in relation to any person claiming to be the father that - (a) he has no intention of applying for, or if he did so apply, it is likely that he would be refused, an order under section 11 of the Children (Scotland) Act 1995 ... ; and (b) he has no intention of entering into an agreement with the mother under section 4(1) of that Act (acquisition by natural father by agreement of such responsibilities and rights), or, if he has such an intention, that no agreement under that subsection is likely to be made."

Rule 2.11(2) of the Child Care and Maintenance Rules 1997 provides that a petitioner must intimate the diet of hearing to the father of a child who is not married to the mother and in respect of whom no order relating to parental responsibilities has been made.

4 The position of JA is set out in the findings in fact, in particular findings 1 - 3. Succinctly, he has, for all purposes other than technical legality, been the father to these children, and has been recognised as such, since their conception. The children's hearing and the social work department have recognised that it is appropriate for him to have the same continuing contact with the children as the natural mother.

5 The legislation, quoted above, creates real difficulties for a court seized with the responsibility of making what can be, in effect, a final decision regarding the future of children and those involved in their lives. These difficulties were explored in the recent case of G v City of Edinburgh Council 2002 SCLR 97, a decision of Sheriff Principal Nicholson. That was a case of an unmarried father who had his application for parental rights refused by a sheriff and who sought to oppose a freeing for adoption application. Commenting on the situation where a natural father, unmarried to the mother, is considered likely to be awarded parental responsibilities and rights, the Sheriff Principal said at paragraph 18:

"But, it seems to me the section leaves an unanswered question as to what is to happen where a court, on considering subsection (7), comes to the conclusion that an unmarried father is likely to be awarded parental responsibilities and rights. On one view that would suggest that the father in question should then be entitled to object to the grant of a freeing order. But that is not what is in fact provided for by section 18 when read as a whole. Subsection (7) itself is expressed in a negative manner, and does not say what is to happen if a court is not satisfied as to the negative matters mentioned therein. Moreover, as I have already observed, subsection (1) only requires the court to have regard to the position of someone who is a parent as defined in the Act, but non-satisfaction with regard to the matters mentioned in subsection (7) does not of itself elevate an unmarried father into the position of a parent for the purposes of subsection (1). Presumably, in such a case, the appropriate course for the court to take would be to adjourn the freeing proceedings in order to see whether or not the likelihood of the father obtaining parental rights and responsibilities became a reality. If it did, the father would then become a "parent" for the purposes of section 18(1), and his views would then have to be taken into account under that subsection. It is strange, however, that this possibility does not appear to be addressed explicitly within section 18."

It is difficult to disagree with the view that in an ideal world, adjournment to see if actual parental rights and responsibilities materialised would be appropriate, but such a course would carry extreme practical difficulties. Diets of hearing for consecutive days cannot be plucked out of the air. Arrangements for the availability of a particular sheriff for uncertain periods with no guarantee that the case would actually proceed cannot be made lightly. Furthermore, in many freeing for adoption cases, there is a need for the future of the particular child to be decided expeditiously. In the present case, the bombshell of the couple's marriage plans was dropped only on the last day of evidence, when JA said that they intended to marry "in five weeks' time." AW confirmed this. I have no reason to suppose that this move was in any way calculated, and there was no motion from any party to adjourn the hearing till, say, early May 2002, but it is easy to see how repeated, but unrealised, threats to marry could, in a similar situation, lead to endless adjournments and additional procedure which might drag on for many months.

6 I have decided that I should, as a preliminary matter, assess, on the evidence before me, whether I would be inclined to grant JA an order for parental rights and responsibilities. If not, then he need not be considered in relation to the decision to be made under section 18(1) except as part of "all the circumstances" mentioned in section 6(1) which come into play in reaching a decision under section 18(1) (vide L v Central Regional Council 1990 SLT 818 at 821J). JA would, however, have no locus to appear or be represented in relation to the section 18(1) decision. Miss Loughlin, for JA, submitted that I should take account of Article 8 of the European Convention on Human Rights, the right to family life, but, as pointed out in G v Edinburgh Council, the terms of section 18 require to be followed. If I were to decide that I would be inclined to grant JA an order for parental rights and responsibilities, were such an application before me, that decision might come into play at a later stage. Following Lothian Regional Council v A 1992 SLT 858 at 862, I would then decide whether either or both of the grounds founded on for dispensing with the agreement of the natural mother were made out. JA's notional entitlement to an order for parental rights and responsibilities would, I think, be a relevant factor in deciding whether the mother's agreement was being withheld unreasonably, but would not be relevant to the other ground. If neither ground was established, that would be an end to the matter. If one or more grounds for dispensing with the natural mother's consent were made out, then in deciding under section 18(1) whether her consent should be dispensed with, I would be bound, in terms of section 6(1),

"in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but -

(a) shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration ... ."

The putative entitlement of JA to parental rights and responsibilities would be part of the totality of the circumstances to which I would require to have regard. I pause to observe that, while a court cannot attach a condition of contact to an order freeing a child in Scotland for adoption, the matter of continuing contact with both parents could properly be left to the children's hearing providing that no order were to be made under section 18(9), determining that the child should no longer be subject to a supervision requirement. From the decision whether or not to dispense with the natural mother's consent the ultimate decision on the granting or refusal of the freeing order would follow automatically. The freeing order would be effective except if the couple were to marry with the case at avizandum. I cannot pretend that the situation is satisfactory, however the course which I propose to follow seems to me to be fair in practical terms to all parties, obedient to the legislation in force, and apt to produce an expeditious resolution of the issue.

7 In P v P 2000 SCLR 477, the Inner House made it clear that while it was not incompetent to make an order under section 11 of the Children (Scotland) Act 1995, including one involving residence or contact, simply because of a requirement of a children's hearing was in force, it would, except in exceptional circumstances, be inappropriate to make a court order inconsistent with a condition attaching to a supervision requirement, which would have precedence over it. As section 18(7) of the 1978 Act is concerned specifically with section 11 orders, I can easily say that, with the issue of contact between JA and his children regulated by the decisions of the children's hearing, I would not be inclined to grant a section 11 order for contact or, having regard to all the circumstances of the case, any other section 11 order, and it would be unlikely for any such order to be granted. I have found that JA was repeatedly advised of his rights and the desirability of seeking legal advice. Any imperfection in his understanding of the situation does not seem to me to be a relevant factor. He has, in any event, been advised by a solicitor for some months now. I accept that the process of reasoning described above is technical, but, looking to the interests of JA and, particularly, the children, I cannot see any justification for granting JA a contact order, or any other section 11 order, in relation to either child. This is because the issue of contact, which is delicate, is being dealt with by the children's hearing, and, standing my decision in relation to section 18(9), will continue to be dealt with by them after the granting of a freeing order. Thus I am satisfied that it is likely that JA would be refused a section 11 order were he to apply for one. It follows, in my view, that JA has no further locus in this case. He is, however, an important factor to which regard should be had in consideration of all the circumstances of the case.

8 The next question relates to whether either of the grounds for dispensing with the agreement of AW has been made out. It is convenient to consider first the ground under section 16(2)(c). The test in that subsection is whether the parent

"has persistently failed, without reasonable cause, to fulfill one or other of the following parental responsibilities in relation to the child -

(i) the responsibility to safeguard and promote the child's health, development and welfare; or

(ii) if the child is not living with him, the responsibility to maintain personal relations and direct contact

with the child on a regular basis. ... ."

It is to be noted that (ii) is not founded on.

9 During speeches, some discussion took place as to whether certain observations of Lord Penrose in Angus Council Social Work Department, Petitioners, Court of Session 12 June 1998, unreported, at page 32 meant that there could not be a failure under head (i) if the child was not with the parent. The passage in question reads as follows:

"Paragraph (ii) can apply only to periods during which the child is not living with the parent. But there is no reason why each test should not apply from time to time according to whether the child has been or has not been living with the parent."

The latter sentence seems to me to be obiter. However, it seems to me that it is not necessary to jump from (i) to (ii) and back again according to the whereabouts of the child at any particular moment. Head (i) is very generally expressed, and I note that in RG and RAG v FM 1999 SCLR 648 the Inner House appear to have dealt with ground (c) on a broad and inspecific basis. I hold that head (i) can apply during periods when the child is not living with the parent. In any event, I have found that ground (c)(i) is satisfied even if matters are restricted to the period before the children were taken from the parents on 19 December 1999.

10 For the applicants, Mr Aitken submitted that the test of the parental behaviour in question is objective and the absence of deliberate intent to neglect the child is not fatal to the establishment of the ground (Central Regional Council v B 1985 SLT 413, Lord Brand at 421). He also referred to Wilkinson & Norrie, Parent and Child, (Second Edition) para 4.54. From RG and RAG v FM he quoted the words at 658F which indicate that the failure of the parent must not be

"merely a temporary or excusable one, nor one whose effects are limited or transient. It must be a failure of enduring significance at the time when the court is considering whether or not to dispense with consent."

He also referred me to unreported decision of Sheriff Farrell in Edinburgh on 20 March 2001. Mr Aitken reminded me of the evidence regarding the state of the house, the failure to keep appointments, the failures in relation to medical matters, and the evidence, which came from AW herself, of her chaotic, alcohol centred lifestyle. The incidents of November and December 1999 were symptomatic of the natural mother's way of life so the statutory test had been met. Under reference to the dictionary definitions of "safeguard" and "promote", it was not necessary to show that actual harm had come to the children. No reasonable excuse existed in this case.

11 In response, Mr Buttery, for AW, submitted that the conduct in question was not sufficiently bad to meet the test set out in the subsection. This mother was guilty of little more than fecklessness. It wasn't her fault if they were put in a rough area where the neighbours were hostile. Their housing difficulties stemmed from the fact that they left their Viewpark tenancy against the wishes of the housing authorities. They did their best to concentrate on their housing needs, which was recognised by the social work department as one of the main things they had to concentrate on. It was the social work department's decision to place the children with HA, and if the natural parents saw more of the children than the social work department wanted, that shows that each parent had a greater interest in the children than the social work department thought. It had been reasonable to want to stay with their GP in Holytown, and there was no evidence as to the risks posed by a failure to deal with A's umbilical hernia or immunisations. No parent could look after a child every minute of the day and the seriousness of the incidents of November and December 1999 could be overstated. In any event, during the period leading up to her father's death, AW had reasonable cause for any neglect of her children because she was looking after her father.

12 In my view the fact that for an extended period AW was drunk or suffering from the after effects of drink most days of the week when she was responsible for the care of two young children is in itself enough to justify a finding in terms of terms of section 16(c)(i). In addition, their house was generally unclean and sometimes in a filthy condition, soiled with dog excrement. The locking of the children in the bedroom at night (it was clear from AW's evidence that the incidents of 17 November and 19 December 1999 were not one-off although she was not asked how often the children were locked in their bedrooms overnight) was further conduct going towards that described in the subsection. Matters which tend in the same direction but seem to me to be relatively minor are the lack of co-operation with the social work department, including seeing the children very frequently outwith the set contact times when they lived with HA. It is necessary, I think, to look at the totality of the parent's conduct towards the child during the relevant period, and the drunken visitors that were allowed into the house, and the inability to establish a proper stable home base for the children are also factors to which I have regard. In A's case, and this I regard as an important failure, AW failed to attend to her necessary medical needs, in particular the inoculations. I disagree with the suggestion that the current controversy regarding the MMR jab can be equiparated with neglecting for no good reason to get basic inoculations. The precise medical necessity of these injections was not explained, but one need only list the diseases they were designed to combat to appreciate that this was an important precaution. The delay in getting a GP local to Viewpark was a further, but almost insignificant, aspect of AW's poor parenting of J and A. I also hold that the condition of AW's father and her efforts to help him in his terminal illness did not provide a reasonable excuse for neglecting her children. Bluntly, her children should have come first and, in any event, the failures arose more out of her habitual abuse of alcohol than being too busy. The failures of AW were, I hold, failures of enduring significance. It took much careful parenting by Mr and Mrs T and by the proposed adopters to move the children on to where they are now. In these circumstances, I hold that the ground under subsection 2(c) is established.

13 The other ground for dispensing with AW's consent that is founded on is the ground under section 16(2)(b) that the parent "is withholding agreement unreasonably." Mr Aitken founded, generally, on Central Regional Council v M 1991 SCLR 300 at 302 - 303 for the general test. He also referred to A v B and C 1971 SC (HL) 129 where, at 141, Lord Reid pointed out that the interests of the adopting family cannot be ignored and, at 143, Lord Guest pointed to the disruption that would inevitably follow from removing a child from the home of prospective adopters who have looked after him for an extended period. Mr Aitken stressed the huge improvement that had taken place in each child since they were removed from AW, JA, and indeed, HA. The children had formed attachments to the prospective adopters and he referred to the passages of evidence in which the social workers discussed the benefits of adoption as opposed to other types of long-term care. He referred, in particular, to the evidence of Mairi Noble, the social worker principally involved in the case, who had initially considered that long-term fostering was going to be the course followed before adoption was chosen. All this took place around September and October 2000. It was not necessary to minute the precise decision making process that had been undergone and it was clear that the alternatives to adoption were in the minds of the social workers dealing with the case. Despite being advised of their rights regularly the decisions to reduce contact had not been appealed. Mr Aitken referred to PMR and JAAB v Aberdeen City Council, 25 May 2001, Inner House, unreported at para 5. The recent improvement in the way of life of AW, and indeed JA, was to be welcomed, but it was too late to change things so far as the children J and A were concerned. It remained to be seen how long-lasting the improvement would be. Mr Aitken was prepared to accept, in terms of White v White 2001 SCLR 607 that a court should generally assume that it would be in the best interests of a child to maintain contact with its natural parents, but everything depended on the circumstances of the case and it was appropriate to ask what was the purpose of contact. In the present case, in view of the history of matters, there was no realistic prospect of these children being rehabilitated with either or both of their natural parents and so the only purpose of contact would be to satisfy the parents' desire that the children should know that they were loved. That could be achieved by means other than direct contact. Looking to all the circumstances, I should hold that the natural mother's agreement was being withheld unreasonably. Mr Aitken referred me to the following additional cases - Re SMH and RAH (minors) 1990 FCR 996 (CA), AB and CB v X's Curator 1963 SC 124 and City of Edinburgh Council v NB 1999 SCLR 694.

14 In reply, Mr Buttery concentrated on the history of contact and the basis on which it was steadily reduced by the social workers, as he said, as a punishment of the natural parents for their failure to co-operate, rather than having regard to the best interests of the children. Mr Buttery contended that the statement that the contact had been reduced to three-monthly in May 2001 because of distress to the children could not be maintained. There was no support for that suggestion in the case notes and, while distress had been evident during the early stages of the children's move away from HA, and their parents, there was nothing beyond occasional unsettled behaviour following contact. The social work department had made a number of errors. They had kept the children too long with HA and, when the court case involving the natural parents aroused considerable publicity, they had over-reacted. In particular, they had not paused to reconsider and re-evaluate the actual relationship between the natural parents and these children. They had moved straight into a reduction of contact and there was little wonder that the children found initial contact with their parents distressing. The decision to opt for adoption, rather than any other form of long-term care had not been minuted and there was no real evidence to show that the alternatives to adoption had been discussed as required by section 6A of the 1978 Act. Further, they had given misleading information to the children's hearing in relation to the issue of contact with the natural parents. Under reference to White v White, the court's starting-point should be the assumption that, in general, it is in the best interests of children to have contact with their natural parents. The issue of contact was fundamental and, in itself a good and proper reason for withholding agreement. It is not possible for a Scottish court freeing a child for adoption to attach a condition of ongoing contact with the natural parents to that order. In the absence of such a statutory provision a natural parent was well entitled to withhold her agreement simply to preserve such contact as she has with her child. Reference was made to the views of Sheriff Morrison QC, quoted by the Sheriff Principal in G v City of Edinburgh Council at para 24 of his judgment. It was strongly submitted that the social work department had not always behaved fairly towards AW and, in all the circumstances, including, of course, the recent improvement in her way of life, I should hold that she is withholding her agreement reasonably.

15 The test of whether a parent has unreasonably withheld his or her agreement to adoption or freeing for adoption has been set out in a variety of cases. In Parent and Child, Second Edition para 447, the learned authors set out their views:

"The central feature of the law ... is that the reasonableness of the withholding of parental agreement is to be measured by the objective test of whether or not a reasonable parent would in all the circumstances have withheld agreement. The First Division more recently put it as follows: "This question must be looked at objectively and the test will be satisfied if no reasonable parent, in all the circumstances, would withhold agreement to the making of an adoption order." The objective nature of the test means that the matter has to be viewed in the light of all the circumstances of the case even if these were not known to the actual parent. Because inter alia of the prospective adopters' right to remain anonymous, important features of the proposed adoption may in fact be unknown to the parent, but the reasonableness of his or her withholding agreement will nonetheless be assessed as if these features, along with all the other circumstances of the case, had been known. An objective assessment will be made of how the interests of the child may be served. These interests will then be held in just balance with the interests of the prospective adopters and of the natural parent, because the reasonable parent, to whose judgment the matter is entrusted, would have regard to all these factors and would, in particular, attach great weight to the interests of the child. The question is viewed through the eyes of the parent but these eyes are endowed with a vision and perspective which the natural parent, by reason of ignorance or otherwise, may have lacked. On the other hand, it does not follow from the objectivity of the test that the court is entitled simply to substitute its own view for that of the natural parent. "Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The question in any given case is whether a parental veto comes within the band of possible reasonable decisions and not whether it is right or mistaken. Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with its own.""

The important feature of the parents' decision is that it has to be child-centred. As Paul Boyle, the senior social worker supervising the case made clear, it is necessary to look at the "big picture." I take that to mean the pre-eminent needs of the children. These children have had a very poor start to their lives in terms of parental care. The move to HA's did not assist much, if at all. They have come on by leaps and bounds, first with Mr and Mrs T, and now with the prospective adopters, with whom they have stayed continuously for sixteen months, a very long time from the perspective of a young child. A move from that placement would court uncertainty and insecurity. Certainty and security are vital for any child, especially one who has had a difficult and rootless existence during the very early years of life. As Lord Bridge said in Re SMH and RAH at 998:

"Unless the adoptive parents are put in the legal position of being in the full sense parents of these little children they are never in the position, and never will be in the position, to give to the children the reassurance which the sense of security required by these children is surely going to need. The parents need to know that the children are full members of the family. The children need to know that they are fully the children of those parents and that nothing can happen to take them away."

The need to keep J and A where they are and to give them and the prospective adopters security is, in my view, paramount. That is the "big picture" Mr Boyle was talking about. Any reasonable parent looking at matters from the viewpoint of the child would, I hold, reach the same conclusion. While the prospective adopters did not take on the children with the promise of adoption, their interests and their efforts during the past months must not be left out of account.

16 There is, I think, much in Mr Buttery's criticism of the social work department. The children were allowed to stay too long with HA, a fact that the social work witnesses acknowledged. They should have been seen to have discussed the alternatives to adoption. There is a statutory requirement that the alternatives to adoption should be considered and that consideration should appear from the minutes of relevant meetings. It does not do so. But the fact that there was no formal discussion does not mean that the alternatives to adoption were not in mind when the decision to go for adoption was made. It was clear from the evidence of Mr Boyle and Ann-Marie Shields, the senior child care officer, that in a case of a long-term placement they were well aware of the characteristics of adoption and how it compared with other sorts of long-term care including Parental Responsibilities Orders and long-term fostering. Adoption frees the child of social work and children's hearing involvement which can be stressful and productive of uncertainty. Children need certainty. While the adoption agency's compliance with section 6A does not jump off the page, this is not a situation in which the lack of demonstrable compliance should nullify the decision to pursue adoption. The greatest failings of the social work department relate, I think, to their evaluation and management of contact. Mr Boyle said in terms that the social work department wanted to control contact. It was clear that the amount and nature of contact afforded to the natural parents depended on the department's view of any improvements that had been made. When it became clear that the period with HA had not been a success, and in the wake of adverse publicity for the couple, the decision was made to reduce contact without attempting any real evaluation of the actual relationship between the parents and the children, a relationship which had been carried on, to large measure, unsupervised by the social work department. Of course, the children were distressed after contact initially, but Ms Shields' evidence that it was reduced to three-monthly in May 2001 because of the children being distressed simply does not find any support from Marie Noble's case notes. I am in no doubt that contact was reduced to three-monthly with a view to terminating it in the future as this was in line with the department's plans for adoption. It may well be that the children's hearing were given an account of matters that unduly stressed the children's disturbance after contact, and that their advice to this court may be, to some extent, affected by that. The issue of contact in this case is not easy, and while I have come to the clear view that adoption is in the best interests of the children, and that any reasonable parent would see that, I am unable, on the evidence I heard, to take any very clear view on the desirability of contact with the natural parents. The contact which the children have with AW and JA may be harmful or beneficial or neutral. This is, I think, a matter for the children's hearing to follow up, perhaps with the assistance of a child psychologist. The identities and address of the prospective adopters is not known to AW and JA and it seems to me that a reasonable parent would take the view that contact can appropriately be left to the children's hearing. It would be difficult to conceal details of names, streets, schools, etc at a full hearing of contested adoption petitions, which would be, effectively, a re-run of the case I have just heard. AW and JA have taken the issue of contact into their own hands before and it is not impossible that they might do so again, to the detriment and unsettlement of the children. While any view that I express is tentative, the evidence of unsettled behaviour after contact and the fact that AW and JA both want the children returned to them, with JA talking to J about "coming home" suggests to me that contact with the natural parents is more likely than not to be destabilising and contrary to the interests of the children (vide RG and RAG v FM at 660D).

17 The fact that AW and JA have made great strides since DA was made subject to a child protection order on birth is, clearly, an important factor in the matter. Without such an improvement their cases would have been considerably weaker. Their potential to contribute positively to any of their children in the future will depend on the continuation of their present sobriety. It is necessary to observe that not all genuine attempts at defeating alcoholism succeed, and a reasonable parent would recognise that there is a chance that one or both of AW and JA will slip back into a lifestyle revolving round Buckfast. It is perfectly clear that AW and/or JA resuming care of either of the children does not feature in the social work department's plans. That is a relevant consideration (Lothian Regional Council v A at 864). I have, however, excluded from my consideration reference to a report ordered from a Mrs Grant by the social work department which was not lodged (G v Edinburgh Council at para 34).

18 While it may be that AW and JA have made immense improvements in their ways of life recently, and, can, with justification, criticise aspects of the social work department's handling of the case, I hold that a reasonable parent blessed with the court's eye view of the situation would not withhold agreement to the freeing orders sought.

19 The wishes of the children cannot practicably be explored, except by reference to their present happiness and sense of involvement with the prospective adopters. If they have any real views at all on contact with AW and JA, it seems to me that a child psychologist's services would be required to discover them. The weight to be attached to their views must necessarily be slight in view of their ages.

20 For the reasons expanded on supra, and having regard to the advice of the children's hearing, the views of the curator ad litem and all the circumstances of the case, I hold that AW's agreement should be dispensed with in relation to each child. It follows automatically from the terms of section 18(1) that the children are declared to be free for adoption. It would be better for them that these orders should be made than that they should not be made. I might add that, on the basis of the evidence which I heard, I would, had the issues been before me, have found the same grounds for dispensing with parental agreement established, and then found that parental agreement should be dispensed with, in the case of JA. The evidence painted him in a slightly less favourable light than AW.

21 I have already discussed the issue of contact in para 16 supra. It follows from what I have said that I shall refuse the motion to make an order under section 18(9). I repeat the expression of hope that the children's hearing will look with great care at the issue of contact. The history of this case has been unusual and, while it might appear that contact with AW and JA is contrary to the children's interests, it may not be so and a more open adoption might be appropriate. Much, of course, will depend on the duration of the couple's sobriety.

22 Given my findings in the case, there was general agreement that no award of expenses should be made to or by any party.