Scottish Court of Session Decisions

Dumfries Galloway Council, Re An Order Freeing Adoption [2003] ScotCS 139 (6 May 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Johnston Lord Weir	XA13/03 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Stranraer under section 18 of the Adoption (Scotland) Act 1978 by DUMFRIES AND GALLOWAY COUNCIL Petitioners and Appellants; for an Order for freeing for Adoption _______

 

 

Act: Kelly; Anderson Strathern, W.S. (Petitioners and Appellants)

Alt: Speir; Balfour & Manson, S.S.C. (for Mother of N.): Phillips; Lockharts, Ayr (Paternal Grandmother): Stirling; Brodies, W.S. (Maternal Grandparents)

6 May 2003

1. This is an appeal against the interlocutor of the sheriff principal, dated 11 December 2002, in which, on an appeal from the sheriff, he refused the appeal and made certain findings of expenses in relation to the appeal. The decision of the sheriff itself was given effect in an interlocutor of 6 September 2002. The interlocutor narrates that the sheriff, counsel for the applicants for freeing for adoption orders having intimated that he was leading no further evidence and having invited the court to dismiss the applications with the consent of all parties, dismissed the applications and, more particularly, having heard parties, found the applicants liable to all other parties in the expenses of the applications as taxed.
2. During the course of the appeal before us, attention was focused understandably upon the original decision of the sheriff. It was explained that the applications for freeing for adoption of the two children involved in this case had been supported in a number of ways. We were referred to various documents which are set forth in the appendix to the appeal. First of all, there were two adoption agency reports, dated 10 August 2001, one relating to each child. Furthermore, attention was drawn to the position of the children's panel, which is evident from the advice from them which appears at page 37 of the appendix. In that advice it is narrated that P and G, the children involved, had been looked after for a long time by carers. There is then an adverse finding about the lifestyle of the mother of the children. The panel go on:

"Both G and P have verbally said that they want to be adopted and stay where they are but they want to see Mummy".

The panel considered the girls had, from the carers in whose charge they were, the love, care and stability they wanted and were thriving in that environment. They wanted to be free from the uncertainties associated with ongoing consideration by social workers. They wanted to know once and for all where they would live.

3. In the sheriff court proceedings a curator had been appointed and there is a report from him in which the applications were supported. He pointed out that the girls were very well settled in a comfortable house with Mr. and Mrs. G, who were the prospective adoptive parents, sharing the house with J, the Gs' daughter. The house was large and comfortable enough and the children were happy and well cared for. In addition to that, it was pointed out by counsel for the appellants that Professor Trizeliotis, who had been engaged in the case, had also expressed opinions which were supportive of the concept that, ultimately, the children would be settled with the Gs. It was, as we understand it, against this background that the appellants considered that it was proper to bring forward and pursue the applications for freeing for adoption. Unfortunately matters did not proceed as might have been expected. We were informed that, at a stage after the commencement of the proof in the applications, the position of the Gs' unexpectedly changed. Their new position was expressed in a letter by them to the appellants dated 1 September 2002. It is worth mentioning that, in that letter, it was said that it was with deep regret and sadness that the Gs had concluded that they were no longer able to offer G and P an adoptive placement. They made reference to the emotional and physical stress which they felt they were under in relation to the ongoing dispute concerning the future of the children. When this letter was communicated to those responsible for the conduct of the hearing, during the week beginning Monday 2 September, the hearing was adjourned from time to time, as all of those involved considered what ought to be done. In the end, as has been narrated, the appellants decided quite properly, in our view, that they could not offer further evidence in support of their applications. Against that background the sheriff decided to make the award of expenses to which we have referred.
4. An appeal was taken to the sheriff principal against that decision and we have the sheriff's comments on the various grounds of appeal which were then tabled. We have heard much discussion of these grounds of appeal and the sheriff's comments on them but, for the present purposes, it is sufficient to mention the last observation which the sheriff makes at page 35 in the appeal print, in the last paragraph of his Note. Having read and considered his other observations we tend to the view that this paragraph contains the substantial reason why the sheriff made the order which he did. We quote:

"Lastly, I have to say that I remain concerned about the way that this litigation concluded. Mr. McKeever was the appellant's main witness who gave evidence for two days. Throughout he was emphatic that the children's welfare was best to be served by their being free for adoption by the Gs. There was never a hint that there might be impending problems with the adoption plans, or the Gs themselves. Yet even as he was giving evidence it appears that the Gs were backing out of the arrangements which he was in the process of commending. Why this happened remains unexplained. But either Mr. McKeever knew of the impending problems but chose not to mention them in his evidence. Or alternatively he had failed to recognise that the Gs' commitment to the children was so shallow that it could be broken so readily. But whatever had happened it should not have done so in proceedings of this importance regarding the welfare of the children".

Against the background which has been explained to us we have come to the conclusion that this paragraph in the sheriff's reasoning involves a material misapprehension of the facts and some degree of speculation. The paragraph contains an apparent suggestion that either Mr. McKeever positively misled the court by not choosing to mention impending problems in his evidence or, alternatively, had failed to recognise something which could readily have been recognised, that is to say the alleged shallowness of the Gs' commitment. We do not consider that the factual circumstances brought to our attention in any way justify that conclusion. It was only in the letter of 1 September 2002 that the Gs unexpectedly brought to the attention of the appellants the problems which they then perceived existed for them in the proceedings. Furthermore, there is nothing at all in the background that suggests to us that there was, in any sense, an inadequate investigation of the Gs' commitment to the children which ought to have revealed, but did not reveal, that there was something amiss. The material available to us and to the sheriff, on the contrary, suggests that very thorough inquiries had been undertaken by the appellants and that the results of those inquiries provided sound support for the applications. The letter from the Gs, dated 1 September 2002, therefore came as a bolt from the blue. Nothing which we have seen suggests that Mr. McKeever misled the court in any way. Having reached that conclusion it appears to us that the exercise of the discretion which the sheriff undoubtedly had in regard to expenses under Rule 2.2 of the Child Care and Maintenance Rules 1997 was flawed by his material misapprehension of the facts. It appears that that state of affairs was not recognised by the sheriff principal, for whatever reason. It may be that the details of the background were not explained to him to the extent that they have been to us.

5. In any event, in all the circumstances, we consider that the decisions of the sheriff and of the sheriff principal cannot stand. Having reached that view, the matter of expenses is at our discretion and in all the circumstances we conclude that there should be no award of expenses to or by any party in the proceedings in the applications for freeing. The unhappy outcome of these proceedings certainly cannot be laid at the door of the appellants. Accordingly, we shall recall the interlocutor of the sheriff principal and the interlocutor of the sheriff, in so far as it deals with the issue of expenses, and order that no expenses be found due to or by any party.