Scottish Court of Session Decisions

BG v. City Edinburgh Council [2002] ScotCS 144 (23rd May, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Coulsfield Lady Cosgrove Lord Caplan	XA32/02 OPINION OF THE COURT delivered by LORD COULSFIELD in APPEAL under Section 18 of the Adoption (Scotland) Act 1978 by B.G. Appellant; against THE CITY OF EDINBURGH COUNCIL Petitioners and Respondents: _______

 

Act: Macnair, Q.C., Edwardson; Clark Ferguson SSC (for Appellant)

Alt: Stacey, Q.C., Sharp; E. Bain (for Petitioners and Respondents): Mure; R. Henderson (for Scottish Ministers)

23 May 2002

1. The appellant B.G. is the father of a child, K.G., who was born on 23 May 1997. The appellant and the child's mother, B.Y., had lived together for approximately two years before the birth of the child and continued to live together until about the summer or autumn of 1998. After the separation, K.G. continued to live with his mother, until June 1999. B.Y., however, had serious drug problems, as indeed did the appellant, and arrangements had to be made for K.G. to be placed in informal care, helped by the respondents' social work department, with a cousin of the appellant. In about March 2000, that arrangement broke down and K.G. was moved first to short term and later to longer term foster care. Initially, the respondents' social work department sought to work towards enabling B.Y. to resume the care of the child but that objective could not be achieved for a number of reasons, including difficulties in maintaining contact between the child and his mother. The case was reviewed on a number of occasions during 2000. Eventually, on 19 October 2000, the respondents' Adoption and Permanent Care Panel took the view that adoption would be the only course which would meet K.G.'s needs. An application to free K.G. for adoption was therefore lodged in the Sheriff Court at Edinburgh in December 2000. It should, perhaps, be noted at this stage that the appellant had tried to maintain contact with the child, although that contact had been interrupted in the circumstances after narrated.
2. The application was intimated both to the mother and to the appellant. As is normal, the application set out the history of the case and the conclusions of the respondents' social work department, and narrated all the information on which the application relied. A hearing was assigned for 15 February 2001 and was intimated both to the mother and to the appellant. Both were represented at the hearing and the appellant was personally present. The hearing was continued in order that the necessary statutory reports could be completed. Both the mother and the appellant opposed the application. Both were represented at a continued hearing on 1 March 2001, at which a proof was fixed to take place on 3 July 2001. However, on 11 June 2001 the solicitors acting for B.Y. intimated that they were withdrawing from acting on the ground of lack of instructions. In consequence, a peremptory diet was fixed for 27 June 2001 and that diet was intimated to the appellant's solicitor. Intimation of the diet was also made to the mother herself. At the diet on 27 June 2001, the respondents and the appellant were represented but the mother was not. The respondents moved that the mother's consent to adoption should be dispensed with, as sought in the application, and they further moved that the sheriff should deal with the merits of the crave of the petition seeking freeing for adoption. The sheriff granted the first part of that motion but declined to deal with the second part at that diet and continued it to be heard at the proof diet. The appellant had previously raised an action seeking parental rights and responsibilities in relation to the child. That action was raised in November 2000 but had been sisted for legal aid for some time. No further procedure had taken place in it until June 2001, when the appellant applied for an order granting him parental rights and responsibilities ad interim and sought to have that application heard at the same time as the respondents' application to free the child for adoption. At the proof diet on 3 July 2001, the appellant and the respondents were represented. Having heard submissions, the sheriff refused the appellant's motion for interim parental rights and responsibilities. She further held that it was unnecessary to hear evidence in relation to the respondents' application to free the child for adoption and, having considered the reports before her and the submissions made, she granted the order sought by the respondents. The appellant appealed to the sheriff principal who, on 20 December 2001, refused the appeal and adhered to the interlocutor of 3 July 2001.
3. The relevant statutory provisions are found principally in section 18 of the Adoption (Scotland) Act 1978. Section 18(1) provides:

"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, subject to sub-section (8), make an order declaring the child free for adoption."

4. Sub-section (8) is not relevant for the present purpose but sub-section (7) is relevant. It provides:

"(7) 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 who 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 a 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 (orders in relation to parental responsibilities and parental rights);.....".

5. Sub-section (7)(b) makes similar provision in regard to the possibility of an agreement with the mother conferring parental rights.
6. Before the sheriff principal, the respondents' counsel submitted that while under section 18(7) an unmarried father might have a locus to appear before the sheriff, particularly as intimation of the diet of hearing required to be made to him in terms of Rule 2.11 of the Child Care and Maintenance Rules 1997, such a person did not have a locus to appeal against the decision of the sheriff. The sheriff principal said, in his note, that in his opinion it was beyond question that section 18 and the relevant rules entitled an unmarried father to be heard, at least to some extent, in the course of a process to free a child for adoption. He went on to say that that did not provide a complete answer to the respondents' submission and said:

"In my opinion a clear distinction is made within section 18 between, on the one hand, sub-section (7) which plainly contemplates consideration being given to the position of an unmarried father who has no parental rights or responsibilities and, on the other hand, sub-section (1) which equally plainly excludes such a father from any consideration at all. Given that distinction, it must follow in my opinion that, where a sheriff has concluded, by reference to sub-section (7), that it is likely that an application for parental responsibilities and rights by an unmarried father will be refused, that father cannot thereafter be given any consideration in relation to the grant of a freeing order. Moreover, since sub-section (1) is expressed in mandatory terms, it is clear that the sheriff has no discretion as to whether or not to make an order provided that the basic requirements of the sub-section have been met."

7. The sheriff principal then discussed what the position might be and what action a sheriff should take if he concluded that the father was likely to be awarded parental rights and responsibilities. He then said:

"On the basis of the foregoing analysis of section 18, and in particular of the relationship between sub-section (1) and sub-section (7), I consider that it must follow that the present appellant cannot competently appeal against the sheriff's order declaring the child free for adoption since, given the view taken by the sheriff under sub-section (7), the appellant was not a party whose views required to be taken into account, or indeed could competently be taken into account, when the sheriff turned her attention to sub-section (1). It is, of course, arguable that the sheriff's conclusions in relation to sub-section (7) should be subject to review on appeal, but in my opinion that is not possible since that decision is not of a kind which is appealable on its own and, as I have said, the appellant was no longer a person entitled to be heard at the stage at which the decision under sub-section (1) (which is a decision of a kind which is susceptible to appeal), was made."

8. It was submitted on behalf of the appellant that the sheriff principal had fallen into error in the last quoted paragraph of his note. It was submitted that in terms of the legislation the sheriff could not make any order under section 18(1) unless she had first been satisfied under section 18(7). It was, therefore, an essential condition of making an order under sub-section (1) that the sheriff should be correctly satisfied in relation to sub-section 7. Sub-section (7) could not, in any event, have been made the subject of a separate interlocutor: it was merely an integral part of the decision-making process leading up to a freeing order. The appellant was clearly affected in his rights and interests by the freeing order and in these circumstances there must be a locus for him to challenge the ultimate decision on appeal. The respondents did not advance any argument to the contrary before us.
9. In our view, the appellant's arguments on this point are sound. It is correct that, as the sheriff principal pointed out, there is some obscurity about the consequences of a finding, in terms of sub-section (7), that an unmarried father is likely to be awarded parental rights and responsibilities and about the procedure which should follow if that conclusion has been reached by the sheriff. It is also correct that an unmarried father's wishes cannot be considered in relation to the application of section 18(1) if the court considers that it is not likely that he will obtain parental rights under section 18(7)(a) or (b). However, whatever may be the position if it is held that the father is likely to obtain an order for parental rights, it is, in our view, clear that he is only excluded from making submissions in regard to the freeing for adoption application if the court is first satisfied, in terms of sub-section (7) that it is not likely that he will be awarded such rights. Since he has a locus to be heard unless the conditions for excluding him from being heard are satisfied, he must, in our view, have a locus to appeal against any finding the effect of which is to exclude him from being heard. That view of the position is reinforced if it is borne in mind that the provisions of Article 8 of the European Convention on Human Rights are relevant. It is not, however, in our view necessary to discuss Article 8 in any depth. It is sufficient to say that we are satisfied that the appellant does have a locus to appeal in a case such as this.
10. The sheriff principal did not restrict himself to the question of the appellant's locus to appeal. He did also consider the merits of the appeal and reached the conclusion that it should be refused.
11. The appellant submitted that in reaching her decision on the merits the sheriff had erred in three respects. She had erred in applying the test under section 18(7); she had failed to give adequate reasons for her decision and, in any event, insofar as reasons could be determined, she had taken into account irrelevant factors and omitted relevant factors; and she had erred in not having regard to the right of the appellant to respect for his family life under Article 8 of the European Convention on Human Rights. Before considering these submissions further, however, it is necessary to say a little about the position as it was before the sheriff on 3 July 2001. As we have explained, the appellant was present at that hearing and was represented by counsel. He had been present, with legal representation, at all earlier hearings. He had also taken steps to raise an action to obtain an order for parental rights and responsibilities although, as we have mentioned, that action had been sisted for some time. When the matter did come before the sheriff on 3 July 2001, the sheriff had to deal both with an application by the appellant for an interim order and with an application by the respondents for the order to be made under section 18(1). At various stages of the argument before us, we were given accounts of what, so far as those who had been present could remember, had occurred when the case was before the sheriff. We do not think it necessary to enter into the details of what was said from time to time. Despite some lack of clarity, it eventually emerged that the appellant and those representing him had had access to the freeing for adoption report, which as we have explained was embodied in the application, and the statutory reports by the reporting officer and the curator ad litem to the child which had been made in the ordinary way. In the course of the discussion before the sheriff some reference was also made to a passage in a report by a Dr Bechhofer which was not, however, placed before the court in its entirety. The sheriff principal expressed the view, with which we agree, that that report should not have been considered at all if its full terms were not to be before the court. We shall require to make some further reference to this matter but it does not appear that at the hearing before the sheriff there was any protest by either side about reference to the report or any request that the whole report should be placed before the sheriff. Most importantly, no request was made on behalf of the appellant, who, as we have said, was legally represented throughout, that any evidence should be heard. As the sheriff explains, more than once, in her note, there was no disagreement about the facts of the case. For that reason she concluded that it was not necessary to hear evidence. As she says:

"Having considered all the circumstances and the submissions made, I decided it was appropriate to deal with the merits of the application to free K.G. for adoption that day without continuing further and without the necessity of hearing evidence. Essentially, all the issues had been focused. There was no specific challenge to the adoption agency report which has been lodged with the petition and no challenge indeed to any other matter. The issue of contact between the appellant and the child was indeed the only matter which was live but curiously the associated action which called at the same time had no crave for contact."

12. In these circumstances, in our opinion, the issue at the present stage has to be approached on the basis that the sheriff was perfectly entitled to proceed to deal with the matter on the material which she had before her. That is important because it follows that in the absence of some indication that the sheriff erred in her approach or failed to take account of relevant factors, the assessment of the factual material before her was essentially a matter for her.
13. It is now necessary to say a little more about the history of the appellant's contact with B.G. and his position in regard to the proposed freeing for adoption. As we have mentioned, the appellant had lived with the child and his mother for a year after the child was born. He continued to maintain contact with the child until April 2000 and has always maintained, in any contacts with the Social Work Department or child care reviews, that the best course in the interests of the child is that he should be cared for in a way which would permit continued direct contact between him and the appellant. The appellant is the father of another child, a girl now aged about 10 with whom he has always maintained contact. The appellant has equally always declared opposition to any form of caring for the child, including adoption, which would preclude, or tend to preclude direct contact. The appellant is, therefore, plainly a person who has had real contact with the child and has a real interest in him. On the other hand, it is clear from the reports, and was not disputed either before the sheriff or before us, that the appellant is not in a position to care for the child himself or to obtain assistance from any family member or connection which would enable him to do so. The freeing for adoption report discloses that some proposals for possible care arrangements have been made and have been considered but have not been satisfactory. Contact between the appellant and K.G. continued until April 2000 when the appellant was taken into custody on a petition warrant. He remained in custody until September 2000 when he was acquitted of the charge against him and released. During his time in custody, the appellant did not make any attempt to arrange for contact with the child. In the previous period the appellant had had the assistance of his mother and step-father in his contact with the child, but they too did not have any contact with the child during the period when the appellant was in custody. On his release, the respondents made it clear that they were opposed to any further direct contact. By that time, as will be seen from the preceding narrative, the respondents' views had moved towards adoption as the proper method of caring for K.G. The respondents further took the view that if there was to be adoption, direct contact with the appellant could not continue, although they did not exclude the possibility of indirect contact, for example by letter, from time to time. It was the respondents' refusal to permit a resumption of direct contact which led to the appellant raising his action for parental rights in November 2000. The action was, therefore, raised before the application to free the child for adoption was lodged. The action went to an options hearing on 2 February 2001 and was then sisted for legal aid and remained sisted until the sist was recalled in June 2001 to enable the motion for an interim order, to which we have already referred, to be made. That is the background against which the sheriff had to consider the three issues which were before her on 3 July 2001, namely, (1) whether the appellant should be granted an interim order for parental rights and responsibilities; (2) whether it was likely that the appellant would be refused an order for parental responsibilities and rights under section 11; and (3) whether the order sought by the respondents under section 18(1) should be made.
14. One of the grounds on which the sheriff's note in relation to her decision of 3 July 2001 was criticised was that she had failed to make clear what her reasons were and had failed to keep distinct the different issues with which she had to deal. We would accept that there are parts of the sheriff's reasoning which are not altogether clear and that it is not altogether clear also when the sheriff was narrating arguments presented to her and when she was narrating conclusions which she had reached. Nevertheless, we think that it can be seen that the essence of her conclusions is contained in the following passages from her note. Firstly, having set out the history of the case and the arguments addressed to her and having noted that it was appropriate to deal with the merits of the application because there was no material dispute on matters of fact, the sheriff said:

"It was generally accepted that the appellant and his immediate family were not in a position to offer day to day or ongoing care and stability for K.G. and the appellant was not opposed in principle to K.G. being adopted and indeed considered that it was in K.G.'s best interests that he be adopted provided the question of his contact with the child was regulated. I was fully aware that this was a matter which concerned the appellant and in particular he was concerned that the child retained knowledge of and contact with his birth family, his natural mother having in effect washed her hands of proceedings by failing to appear or be represented to articulate her opposition to the petitioner's application. The appellant was thus keen that one of the child's parents have an active role in the application."

15. A little latter the sheriff said this:

"There seems no doubt that the motive of the appellant in seeking interim parental rights and responsibilities was solely to take part in the freeing application but not to oppose adoption on the merits. The appellant opposed freeing for adoption because it was incompatible with his quest for contact with K.G., not because there was any substantive opposition to be made to the application."

16. The sheriff then referred to Article 6 of the European Convention on Human Rights and to the procedure which had taken place and then said:

"Furthermore, I took the view that the statutory duty that I had in respect of the appellant in terms of section 18(7) of the 1978 Act was to satisfy myself in relation to the appellant and the likelihood or not that he would be refused an order under section 11 of the Children (Scotland) Act 1995. The issue was therefore not whether I would refuse the motion for interim parental rights and responsibilities but whether it was likely that he would be refused an order in terms of section 11 of the 1995 Act bearing in mind the test to be applied in section 11(7) which is that the welfare of the child is the paramount consideration and the court shall not make any order unless it considers that it would be better for the child that the order be made than none should be made at all. Accordingly, in my view, that was the issue to be decided and it matters little whether I also had the motion for interim parental rights and responsibilities before me as the issue effectively to be determined is a common test namely the welfare of the child and the consideration which I had was not actual refusal of the motion for interim parental rights and responsibilities but the test as I was directed on in section 18(7) of the 1978 Act."

17. The sheriff elaborated on that point a little further and referred to Article 8 of the Convention and to the decision in Keegan v. Ireland 1994 18 EHRR 342. She then referred to the action which had been raised by the appellant and commented that it was perhaps of some significance, allowing for a reasonable period of sist for legal aid, that no steps had been taken to obtain interim parental rights until the freeing application had reached a critical stage, namely the peremptory diet. The sheriff also noted that despite the principal issue before her being the question of the appellant's continued contact with the child, there was no crave in the action seeking contact and interim contact. She continued:

"As I have said previously the terms of the various reports lodged in the freeing process were largely unchallenged. There had been no contact between the appellant and the child since April 2000 and no contact indeed between the appellant's mother and step-father and the child since approximately June 2000. The appellant's family were in a position to maintain contact with the child but for whatever reason chose not to do so. It is accepted that the appellant was incarcerated between about April 2000 and the end of September 2000. Quite reasonably the appellant did not seek direct contact with the child whilst he was in Saughton Prison but on the other hand did not maintain indirect contact with the child nor did his parents which is of some significance particularly given that the child's birthday falls towards the end of May. It is also correct that there has been no contact since the appellant's release from custody and that the petitioners have discouraged contact. However there has been no request for indirect contact nor indeed has there been any significant progress with the appellant's action in respect of parental rights and responsibilities and no crave, as I have already observed, seeking contact. It was also noted that in the reporting officer's report it is stated that the child no longer talks of either parent and is well settled in foster care.

I was of course well aware that the reporting officer did not exclude the prospect of an interim parental rights and responsibilities order being

granted.

Before I could consider the merits of the petition, I have of course the obligation of satisfying myself as to whether the appellant having applied to the court for interim parental rights and responsibilities it is likely that he would be refused. In that regard against the whole background I had to apply the test laid down in section 11(7) of the 1995 Act and having regard to the whole circumstances which included the history of contact, the appellant's position regarding the future care of the child, I was satisfied that the court which comes under an obligation not to make an order unless it considered it would be better for the child that the order be made than none should be made at all, would make any such order as the welfare of the child would be best served by making no such order. Thus I was satisfied that it was likely that the appellant would be refused an order for parental rights and responsibilities under section 11 of the 195 Act."

18. Having considered that issue, the sheriff then dealt with the question of granting the freeing for adoption order. It was in that context that some reference was made to the report by Dr. Bechhofer which was relied on by counsel for the appellant for a statement that the appellant's request in relation to contact should be considered seriously. Overall, however, the sheriff's conclusion was that the respondents had considered the question of contact seriously and she accepted their conclusion that direct contact was not in the best interests of the child. Accordingly, the sheriff reached the view that the freeing for adoption order should be granted.
19. We have already summarised the principal submissions made on behalf of the appellant. The first and third of these submissions go together. It was submitted that the test to be applied under section 18(7) was a high one. A similar test had been considered in Taplin v. C Shepherd & Co 1978 ICR 1068, although in an entirely different context. It was also relevant to take into account Article 8 of the E.C.H.R., the effect of which was that there should be no interference with family rights such as those of the appellant unless such interference was necessary. In that connection, reference was made to Johannsen v. Norway 1996 23 E.H.R.R. 33 and Bronda v. Italy (9 June 1998). Reference was also made to White v. White 2001 SC 689 and it was submitted that there was no legal onus to be discharged by any party in consideration of any question arising under section 11 of the 1995 Act.
20. We have no difficulty in accepting, for the purposes of this case that the test to be applied under section 18(7) is a demanding one, but we do not think that there is anything in the appellant's submissions to indicate that the sheriff did not apply the test properly or that she misdirected herself in any way as to the nature of the test or tests which did have to be considered. As regards the sheriff's reasons, we have already observed that it can perhaps be said that the expression of her views is open to some criticism but most of that criticism related to matters which are really matters of expression and are not material to her decision. One particular criticism was that there was confusion between the question of interim parental rights and the question arising under section 18(7). That criticism can, in our view, be rejected. Although the sheriff does consider those two matters together in some parts of her note, we think it is sufficiently clear that she did apply her mind to the question under section 18(7) and we do not think that it can be said that she was wrong in taking the view that the considerations which bore on the making of an interim order were similar, indeed essentially the same, as those which bore on the question under section 18(7). We therefore reject that criticism of the sheriff's reasoning.
21. The remaining criticisms of the sheriff's note were that she had not given sufficient weight to the contact which the appellant had enjoyed with the child or to the reasons for the interruption of contact both with him and with his parents. It was said that the fact that there was no contact between the child and the grandparents during the appellant's period in custody was not to be held against him. The sheriff had been wrong in giving weight to the fact that the appellant's action included no conclusion for contact and that there had been no proceedings following the sist for legal aid until the matter became critical. The appellant had acted reasonably over the whole question of contact and the material before the sheriff did not entitle her to conclude that there should be no contact in the future and therefore that the appellant's opposition to adoption should be rejected.
22. In our view, the essential reason for the sheriff's decision is sufficiently clear, namely that the sheriff accepted the basic position of the respondents that there was no future for this child other than adoption and that a satisfactory adoption would require to exclude direct contact with the appellant. The other matters taken into account were all, in our view, more peripheral to the decision and, while there might be some dispute about the weight to be attached to them, the question of the appropriate weight was one for the sheriff. We do not think that it can be said that any of the factors taken into account by the sheriff were irrelevant nor, looking to the whole circumstances, that her conclusion can be said to be without reasonable foundation. In these circumstances, we agree with the sheriff principal that there is no ground for allowing this appeal.