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A B and C (children), Re Petition for an Order Freeing the Children for Adoption [2004] ScotCS 147 (22 June 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY SMITH

In the Petitions of

ABERDEENSHIRE COUNCIL

For

An Order Freeing the children A, B and C for Adoption

________________

Petitioners: Loudon; Digby Brown

First Respondent: Ardrey; Mowat Hall Dick

Second Respondent: Beynon, Beveridge & Kellas

22 June 2004

1. Introduction:
[1] This opinion is in respect of three petitions at the instance of the petitioners in which they seek orders to have three children declared free for adoption. The childrens' dates of birth are 7 October 1995, 16 March 1997, and 22nd March 1998. They are all boys. The first respondent is the children's mother and is aged 33 years. The second respondent is the children's father and is aged 58 years. The respondents are married, live together and have done so since prior to the birth of the children. They do not consent to the freeing of their children for adoption. Proof, accordingly, ensued at which the petitioners and both respondents were represented.

2. Agreed Facts:
[2] The petitioners are the social work authority for Aberdeenshire Council and are a statutory adoption agency. To a large extent, the history of the case is not in dispute. A joint minute containing 55 paragraphs was entered into in which much of the relevant in detail is set out and much of the evidence given on behalf of the petitioners as regards the children's history was not challenged. Shortly put, parties were agreed as to the following aspects of the history of the family :

the respondents' first child was born on 9 September 1994 and was taken to a place of safety under and in terms of the Social Work (Scotland) Act 1968 when she was five days old. She was thereafter freed for adoption.
the children who are the subject of these petitions lived with the respondents from the dates of their births until 17 May 2000, on which date they were moved into foster care.
throughout the time the children were living with their parents, social work support for basic parenting skills was required and provided. This involved offering the family intensive support, guidance and education on a daily basis, excluding weekends. The daily support was provided by carers and social workers visited on a regular basis.
following his birth, A was placed on the child protection register until 24 June 1996 as being at risk of neglect and at risk of emotional abuse. From 24 June 1996 to 17 December 1996, registration continued on the basis of being at risk of neglect. Thereafter, he was taken off the register and but social work involvement with the family continued on a voluntary basis.
on 19 January 1999, the children were placed on the child protection register as being at risk of "neglect and emotional abuse".
in or about January 1999, the children's cases were referred to the reporter to the Children's Hearing.
the family moved to an address at New Byth from Cairnie , near Huntly, on March 1999. The reason for the move was the second respondent's desire to escape social work intervention. They lived there until 29 September 1999, when they moved to Banff.
social work intervention continued after the moves to new Byth and Banff.
on 15 March 1999, C was admitted to hospital due to dehydration. When he was discharged on 18 March 1999, the consultant paediatrician in charge of his care indicated a desire that carers go into the family home twice daily to monitor nutrition and stimulation. After negotiation with the second respondent, it was agreed that he would allow such daily visits. Thereafter and until 17 May 2000 , such visits were made on weekdays , twice a day apart from Fridays when a single longer visit was made. The carers who visited were sent by the Banff Family Centre , a resource provided by the petitioners and managed by a social worker. Social workers also visited the family on a regular basis .
grounds of referral to the Children's Hearing, which were identical in respect of each child, were found by the Sheriff at Banff to be established on 1^st July 1999 . The second respondent lodged an appeal against that finding but later withdrew it . Those grounds contained sixty two paragraphs , fifty three of which detailed specific events which gave rise to social work concern regarding the children's welfare between December 1998 and February 1999 . They ranged from occasions when the children were found to be hungry and dirty to occasions when basic hygiene was not observed when the family dog had urinated in the kitchen to a few when the first respondent had used violence towards A.
on 24 August 1999, the Children's Hearing determined that the children were in need of compulsory measures of supervision.
at regular intervals , thereafter, Children's Hearings took place in respect of the children. Regular child protection meetings also took place.
recurrent themes at both children's hearings and child protection case conferences whilst the children were living with the respondents were concerns regarding inadequate diet , poor hygiene , failure to respond to the children's basic needs, poor stimulation , inability to set consistent and appropriate behaviour boundaries, aggression both by the parents and as between the boys , particularly the two older ones, some violence and failure to secure the children's safety. Concerns were regularly expressed that despite the high level of support afforded to the family, which was virtually unprecedented in the experience of the social workers involved, the respondents were inconsistent in their response in that much advice was given but it was not always acted on and that in the fourteen months that passed between March 1999 and May 2000, no real progress was made with the family.
on 17 May 2000, the Hearing decided that the children should be removed from the care of the respondents and placed with foster carers.
the decision taken on 17 May 2000 followed the receipt by the Hearing of an up to date report written by three social workers involved with the family (Steve J Hothersall, Sheila A Ritchie, and Faye McDonald) and a report from a safeguarder who had been appointed by the Hearing on 16^th March 2000, a date when the second Respondent had called for a Hearing. Both reports recommended that the supervision orders in place should remain in force with the variation that the children be removed from the respondents' care and into the care of foster carers.
the children were placed with foster carers following the decision of May 2000. A was placed in a separate foster home from his brothers at first as it was felt that that would best serve his welfare. When they were admitted into care, all the children were underweight.
contact took place between the first respondent and the children on a reasonably regular basis until March 2002, at a contact centre.
the children have had no contact with their father, the second respondent, for over four years and have had no contact with their mother since March 2002, over two years ago.
between January and April 2001, the petitioners' social work department conducted a three part review of the children's cases involving social service staff and an independent social worker who agreed that the best way of safeguarding the children's future was to seek freeing for adoption orders. At that stage, the conclusion was that boys should be placed together in one family.
on 30 June 2001, the boys were moved to one foster placement where all three were accommodated together until 4 August 2003, when A was moved to prospective adopters. The two younger boys remain in the same foster home.
following upon the receipt of advice from Judy Gauldie, an independent social worker specialising in adoption and fostering services and from Dr Susan Rodger, Associate Specialist Paediatrician and Medical Adviser to the Aberdeenshire Adoption and Fostering Panel, ("the panel") the petitioners decided to seek separate adoptive homes for each of the boys, the view taken being that the boys' individual needs would best be met if they were placed with separate families.
the respondents have moved three times since the children were accommodated by the petitioners and now live at an address in Aberdeen.

3. The Evidence:

a. General:
[3] All parties led evidence. A valuable saving of time was achieved by means of each of the petitioners' witnesses having sworn an affidavit shortly in advance of the proof hearing, the contents of which they each confirmed as being truthful at the outset of giving evidence. Counsel for the petitioner was thus able to restrict her questioning of the witnesses and counsel for the respondents had had clear notice of their evidence. The respondents each gave evidence but led no other witnesses. The use of affidavits and an extensive joint minute showed recognition of the duties that the court expects those involved in such a case to fulfil, as expressed by the Lord President (Hope) in Lothian Regional Council v A 1992 SLT 858:

"there is a heavy responsibility on the parties' representatives to exercise all reasonable economy and restraint in their presentation of the evidence and in their submissions to the court."

and repeated in the more recent Inner House case of Dundee City Council v C.M unrepd. 27 February 2004. Parties' representatives can be congratulated for that recognition. Also, it was in fact the case that the extensive agreement set out in the Joint Minute and the use of affidavit evidence led to a substantial saving in court time and certainly helped to focus the issues. It is to be hoped that practitioners utilise such practices in similar cases in the future.

[4] I would add that the efficient use of court time and the focusing of issues as between parties was also assisted considerably by the evident co-operation that occurred as between counsel. It was heartening, at the point of submissions, to be told by both of the respondents' counsel that they wished to pay tribute to the assistance and co-operation that they had received from counsel for the petitioners throughout the history of the case. There was disclosure of relevant information and documentation and also early disclosure of the authorities to be relied on and the arguments that were to be put in submission at the end of the proof all of which reflected, it seemed to me, the adoption of the responsible attitude that can reasonably be expected of a public authority such as the petitioners.

b. Quality of parental care:

[5] The evidence for the petitioners regarding the quality of care afforded by the respondents came from, principally, the social workers involved directly in supporting the family between the end of 1998 and May 2000, those involved in supervising the first respondent's contact with the children, those involved in supervising the children whilst in foster care and those involved in the placement of the children for adoption . It also came from Judy Gauldie and Dr Rodger and from the foster mother who has cared for the two younger boys since June 2001 until the present, apart from a short period when C was placed for adoption, unsuccessfully. She also cared for A until he was placed for adoption in August 2003.

[6] The picture that emerged from the petitioners' evidence was one of persistently inadequate parenting. There was particular concern regarding nutrition. The children were underweight to the extent that they had to be weighed weekly by the health visitor. The respondents expressed concern regarding the matter yet repeatedly failed to follow advice given regarding the food that the children required and the routines that needed to be set for them. Other concerns regarding the quality of parenting afforded to the children of the sort contained within the grounds of referral found established at Banff Sheriff Court, continued to be expressed continuously after March 1999. A catalogue of problems persisted ranging from failures to appreciate the requirements of basic road safety and of the appropriate response to incidents within the home that highlighted safety shortcomings, to tensions arising from volatility in the relationship between the respondents.

[7] Elaine Bremner, the key social worker for the family between November 1998 and March 1999 gave evidence which covered some of the events detailed in the grounds of referral and explained that she had become increasingly concerned that the aims of a child protection plan which had been carefully negotiated with the respondents were not being achieved in circumstances where they were faced with inconsistency in co-operation and with the second respondent becoming more and more irate with them.

[8] The situation was also summarised by both Mrs Sheila Ritchie and Mrs Faye McDonald, social workers involved with the family from March 1999, Sheila Ritchie as key worker and Faye McDonald as social worker in charge of the Family Centre at Banff, which was tasked with the provision of practical support for the family. The Family Centre is a resource provided by the petitioners to work in partnership with parents and families which has a staff of seven, all of whom have child care qualifications and some of whom are social workers. They described the situation as amounting to the respondents parenting by proxy, in the sense that the practical parenting was in fact being carried out by the carers who attended each day. Both those witnesses spoke of hoping to be able to help the respondents to become "good enough" parents but of finding, in practice, that they simply could not make progress with them. Faye McDonald said that it was a matter of taking one step forward and two backwards and Sheila Ritchie spoke of the respondents needing constant prompting and cajoling to provide basic care. They never, she said, got to the stage that they felt that they had achieved satisfactory progress in any of the areas in which they were trying to provide support and guidance. They could never, as she put it "move on". Rather, there were, she said, continuing alarm bells ringing and they found, as at May 2000 that they were still having to try and address the same issues as they had started to address with the respondents when she had first become involved the previous March.

[9] Elaine Bremner's, Sheila Ritchie's and Faye McDonald's evidence was challenged in some respects. For instance, nutrition was said to be a major concern to the extent that it was shared by the respondents but they sought, in evidence, to assert that the children were well fed and the only problem was with the baby milk that was provided for C. Sheila Ritchie and Faye McDonald spoke of themselves and the carers having great difficulty in persuading the respondents that the children ought to have a routine of regular meals eaten whilst sitting at the table, without being given sweets and similar snacks before meals, the family's normal circumstances being that the children would be given such snacks, would not sit at the table to eat and would be distracted by the television. The respondents both gave evidence to the effect that the children were never given sweets and snacks and that they always sat at the table to eat although they accepted that they chose not to join them. There was a conflict regarding bedtimes. Sheila Ritchie and Faye McDonald were concerned that the first respondent was insisting on putting the children to bed too early in the afternoon. Doing so had implications both in terms of the children being left too long without food and not being tired enough when put to bed so misbehaviour was liable to result. The respondent denied having done so. A concern was expressed that feeding bottles were not consistently kept clean and sterilised. That was something that had been observed by social work staff and reported by the nursery that the children attended when living in Cairnie. The respondents were provided with an appropriate steriliser and shown how to use it but social work staff kept finding that it had been put away in the cupboard. She was cross examined on the basis that the first respondent accepted that the bottles may not always have been washed but the situation was no different from that which might be found in any family home, something which she did not accept. When the first respondent gave evidence, she made no concessions and insisted that the bottles were always properly washed and sterilised. Another concern arose from an occasion when C had sustained significant injury to his eye and cheek, resulting in bruising and a very swollen cheek. He was then about two years old. Sheila Ritchie said that the first respondent had not given and did not seem able to give any explanation as to how it had happened. The first respondent asserted in evidence that she had done so, explaining that he had run into the arm of a chair.

[10] The social work evidence, particularly that from Faye McDonald, was to the effect that when help was provided in the home, a continuous effort was made to involve the respondents in the care of their children. Faye McDonald spoke of using strategies such as asking the first respondent what she thought they should do next or how she thought they should approach a particular task, all with a view, as they would explain, to helping her manage better. They found it an uphill battle, however, as the attitude of the respondents was often to the effect that they regarded the carers as being there to care for the children, disliked their presence in the house and would not maintain any consistent effort to work with them for the children's benefit. The respondents' evidence was simply to the effect that the carers came in and took over, preventing them being involved with the children when they were there and it was they who caused disruption and any state of chaos that existed. When the carers were not present, all was calm, they said.

[11] Further, concern was expressed at the extent to which the respondents shouted and swore, including in front of the children and at the fact that there had been some occasions on which the first respondent had hit A. The first respondent denied ever having done so. Mrs Ritchie gave evidence that there were occasions when A was returned home from nursery by the taxi service that had been arranged to transport him but no-one was in the house, that she had waited with the child in her car on one such occasion and that he had had to be returned to the nursery on other occasions. The first respondent denied that that had ever happened. Sheila Ritchie and Faye McDonald expressed concern that there was considerable friction in the respondents' own relationship which impacted adversely on the children but the respondents' evidence was that they were no more than the "tiffs" that any couple would have. The second respondent's general position in evidence, which went further than the line put in cross examination on his behalf, was that all the social workers were lying.

[12] There were some other conflicts in the evidence regarding similar points of detail. Overall, however, the thrust of the cross examination of the petitioners' witnesses was to the effect that whereas they presented a picture of increasing concern that the respondents did not and could not look after their children adequately, matters were, whilst not perfect, no worse than might be found in the average family home. None of the social workers involved with trying to support the family could agree. Indeed, they were very firm in their refutation. In these circumstances, it is necessary to resolve the conflicts in the evidence. I have no hesitation in preferring the evidence given on behalf of the petitioners. The three social workers directly involved in providing support for the family, Elaine Bremner, Sheila Ritchie and Faye McDonald were all highly experienced. Both respondents suffer from learning difficulties, the first respondent appearing to do so to a greater extent than the second respondent. These social workers appeared to have sought to make such allowances as could be made for that fact. They were impressive witnesses. Faye McDonald, in particular, impressed as someone who had sought very hard to work gently, sensitively and effectively with the respondents and her credibility was heightened by the fact that she readily said anything positive that could be said about the respondents and made concessions insofar as she was able to do so. For example, regarding a matter of the respondents failing to use harnesses or wrist straps to keep hold of the children when out with them, she said that she thought that they just forgot to use them rather than that they were deliberately ignoring advice that had been given. She appeared to me to be very tolerant in her approach to the respondents and their difficulties yet even she had reached the stage when she felt that the children should be removed. Further, these professionals had no reason to lie. Their interests were clearly the welfare of the children and I was readily satisfied, having listened to them and observed their demeanour in the witness box, that that was what had motivated them throughout the period of their involvement.

[13] The evidence from Faye McDonald and Sheila Ritchie was to the effect that by May 2000, matters were escalating. Safety concerns were growing as was shown by the series of events that implied safety risks listed in the report for prepared by them and Steve Hothersall for the Children's Hearing of 17^th May 2000 (6/32 of process), all of which had occurred in the period 8^th March 2000 to 2^nd May 2000. Nutritional concerns remained, as shown in the same report. Concerns about the children's behaviour were detailed. Concerns about the children's' emotional needs not being met were also set out in that report. Concerns regarding the failure of both parents to follow simple advice are set out as was a particular concern regarding the attitude of the second respondent. The following paragraph appears towards the end of the report:

"Overall the family have not been able to accept advice, guidance and assistance as offered and act upon it meaningfully to the extent where progress is evidence to an appreciable degree. The home circumstances appear to be worsening despite continued input. It has been difficult to review strategies as one would like because of the opposition in evidence. This needs to be considered.

HOW THESE MIGHT BE ADDRESSED

Over the past year, the Social Work Service has attempted to advise, guide and assist Mr and Mrs .......in the care and protection of their three children. This task has been a very difficult one, made much more so by Mr ....'s hostility towards this and other services. He refuses to accept that the standards of care afforded his children are lacking and similarly refuses to engage with professionals co-operatively. The children's needs are left wanting; their lives are within a chaotic, disorganised environment which fails to meet many of their basic needs. Any efforts to consider more complex needs e.g. social, are undermined by reference to continued efforts to meet basic physical ones.

A vast amount of time and effort has been invested with this family. Much of this effort has been effectively wasted because of the level of objection and opposition in evidence, particularly from Mr........The children are not being allowed to live within a secure, emotionally safe environment. Their experiences to date have taken place in a hostile environment not focused on them; rather , the adults need for control dominates at their expense."

[14] As regards the references to the attitude of the second respondent, the evidence was to the effect that his opposition to social work intervention has persisted since the time when Elaine Bremner first became involved in the latter part of 1998. The second respondent did not deny in evidence that that was the case. He has twice been convicted in Banff District Court of committing breaches of the peace which involved social workers as complainers, one conviction having been in July 2001 and one in February 2002. He is currently appealing against a third such conviction, which was dated May 2003. There was evidence that he caused disturbances in social work offices and Sheila Ritchie in particular, appears to have been quite disturbed by his threats towards her. The petitioners raised an action seeking an order to interdict the second respondent from molesting social work staff by verbally or physically abusing them, from threatening them, from putting them into a state of fear and alarm or distress, from using violence towards them or from accosting them. In October 2001, the second respondent, having taken legal advice, gave an undertaking to the petitioners that he would refrain from such action.

c. Parental involvement after May 2000

[15] The Children's Hearing determined, in May 2000, that there should be no contact between the children and the second respondent. He was given eight weeks to consider changing his attitude regarding co-operation with social work services but that did not happen and so no contact was arranged between him and the children.

[16] Contact took place on a reasonably regular basis between the first respondent and the children, at a contact centre. Clearly, it cannot be easy for any parent to see their children under such circumstances, conscious of the fact, as was the first respondent, that they are being observed throughout. However, I got the impression that Kathleen Strathdee, who gave evidence regarding her supervision of contact over the period of eighteen months between June 2000 and December 2001, took account of that. She and a Family Support Worker tried hard to help the first respondent engage with her children at these sessions but saw no evidence of real attachment between her and them. There was concern that her conduct towards the children was inappropriate and that she seemed to be incapable of recognising how poor her behaviour to them was. It was not felt that the children gained any benefit from the sessions and there was some evidence, from, for instance, Stephanie Anderson, social worker, that they had shown signs of distress and upset after it. The Curator ad litem also reported that that had been the case. There seems to have been strong and ample social work support for the view that contact with the first respondent should be terminated.

[17] Since May 2000, the second respondent has, on the evidence before me, made regular complaints about the standard of care afforded to the children in their foster homes and has also sought to make contact with the foster carers who presently look after B and C, and with the children. The respondents discovered their name and address shortly after the children were placed there. The children's foster mother gave evidence and expressed concern that shortly after the respondents discovered their name and address, she received a number of telephone calls where the caller was silent. She inferred that the calls came from the second respondent as she had also received letters from him addressed in the same way as their name appears in the telephone book. The second respondent had, in these letters, threatened her and her family. He had also enclosed letters to the children in which he told them not to listen to her. She was also aware that he had made threats to social workers that he would take the children away which had led to her taking specific measures to see that the children protected when out and about. It was evident from the way that she gave evidence that her anxiety regarding the second respondent's threats was genuine. Indeed, the reason that she gave for it not being best for the children to remain in foster care was the fact of the second respondent's threatening behaviour.

[18] On 26 February 2003, on the application of the petitioners, the Sheriff Principal of Grampian, Highlands and Islands sitting at Aberdeen, granted permanent interdict against the second respondent from telephoning the children's foster parents, from writing to them or to the children or from contacting them or from removing the children. Interim interdict in similar terms had been granted on 19^th July 2002. The second respondent eventually accepted, in evidence, that he had breached that interdict by writing to the children at the foster parents' address. He accepted that he had written, in such a letter, that the children should not listen to their foster mother.

d. Respondents' reasons for withholding consent :
[19] Whilst the first respondent did not go so far in evidence as accepting that she had difficulties in coping with the children, she did, on numerous occasions stress that she had found it difficult to develop any relationship with the two younger boys and said that she did not have any bond with them. She also spoke in terms of foreseeing that if the children were returned to live with her and the second respondent it would be on the basis that they would be provided with social work support through carers of the sort and at the level that it was provided prior to May 2000. She gave no indication whatsoever that she had developed any insight into what it was that had led to the children being removed nor that she had, in any way, changed or progressed since then. Her refusal of consent was not, accordingly, based on any assertion that she could do better as regards the needs of her children. Rather, she stated, in simple terms that sounded somewhat rehearsed, that she would not consent to the order sought because she thought that it would be better to return the children to their natural mother and father. Every child needed a natural mother and father. She added that every child needed proper education and that she would look for appropriate schools for the children. The latter comment seemed to be of the nature of a throwaway remark since proper provision of appropriate education for the children was not an issue in the evidence .

[20] The position of the second respondent was that he wanted his children back. He felt that he had put a lot of work into the boys, had done nothing wrong and had done everything that the social workers had asked him to do. He said that he envisaged a reintroduction of the children to their parents on a gradual basis; he did not specify what he meant by that. He said that it would benefit him as he would then know that they were "alright" and it would benefit them as they would know they had a real father. In common with his wife, he foresaw that if the children were returned they would need the help of carers. He was asked whether he would co-operate with the social work department in the future and his response was firstly to the effect that they had made it clear that they would not work with him and secondly that he did not see a problem if they were prepared to work with him. The implication, from the manner of his response, was that they would have to work with him on his terms.

e. The first petitioner's health:
[21] In the course of her evidence, the first respondent stated that she had been diagnosed as suffering from breast cancer in about March of the present year, by a doctor at Foresterhill Hospital, whose name was Dowds. This was evidently news to the petitioners, her representatives and those representing the second respondent. She was able to give a clear indication of the types of treatment offered and of the side effects involved. She said that she had not liked the sound of these treatments and had not let the doctor tell her what would be the likely consequence of her refusing treatment. Matters had been left that she was to contact the hospital if she wanted further help. She had not done so and had, on the first day that she gave evidence, no intention of doing so. However, on the second day that she gave evidence, she indicated that her solicitor had talked to her about it and she had now agreed that she would seek medical help. The second respondent said in evidence that he knew nothing of the first respondent having breast cancer and that he thought she had gone to the hospital to see about a problem with her foot. The first respondent said that she had told him but he did not want to know about it.

[22] Parties' representatives made enquiries of the first respondent's General Practitioner practice in the course of the proof regarding her evidence that she had been diagnosed as having breast cancer. In the time available, which was a matter of hours, no documentary evidence of such a diagnosis could be found. However, the doctor who handled the enquiry was not the person who, according to the first respondent, had referred her to Foresterhill Hospital and the records being searched were her General Practitioner ones, not those of the hospital.

[23] Some doubt was expressed as to whether or not the first respondent's evidence could be correct as regards the diagnosis. However, it was one matter on which I considered that I could not do other than find her credible. She was able to detail the side effects of chemotherapy treatment correctly and she became quite upset at any suggestion that she might be lying about it. Unfortunately, however, with the disclosure being made so late in the day, no medical evidence was led in respect of, in particular, any effect on the first respondent's life expectancy or, indeed, her general state of health.

f. Placement for adoption
[24] The view that it was in the children's best interests to move towards adoption was reached by the petitioners' social work department by April 2001. In accordance with normal practice, the children's cases were then referred to the panel, a statutory body set up in accordance with the requirements of Regulation 7 of the Adoption Agencies (Scotland) Regulations 1996 (S.I. 1996 No. 3266 (S.254)). Regulation 11 sets out the function of adoption panels and provides:

"11.-(1) Subject to paragraphs (4) , (5) and (6) , an adoption panel shall consider the case of every child and proposed placement referred to it by the adoption agency ...., and shall make recommendations to the agency on such of the following matters as may be appropriate -

(a) whether adoption is in the best interests of a child and if the panel recommends that it is whether an application under section 18 of the Act should be made to free the child for adoption;

(b) whether a prospective adopter is suitable to be an adoptive parent; and

[25] Accordingly, in order to perform its duties, the panel needs to reach a view as to whether, in the case of siblings that are to be placed for adoption, they should be placed singly or together, something which was a live issue in the present case.

[26] In October 2002 the panel instructed an independent social worker, Judy Gauldie, to prepare the forms known as "Form E" in respect of each child. Those forms contain details of the children, a full report of their relevant history and a recommendation as to whether or not they should be placed for adoption. The delay between April 2001 and October 2002 was not explained in evidence. Judy Gauldie began the work of preparing the forms and following a "Looked After Children Review" in January 2003, carried out further investigations into the issue of whether it would be best for the children to be placed together or separately. In particular, she carried out a sibling attachment assessment using criteria recommended by the British Adoption and Fostering Association. The results of her investigations were to the effect that there was little attachment as between the boys and that their needs for the undivided attention of the adults caring for them were such that they should placed separately. She was an impressive witness who gave her evidence in a professional manner and had clearly brought much time, trouble and skill to the work of carrying out her assessments in this case. I had no hesitation in accepting her as credible and reliable. Dr Susan Rodger also gave evidence regarding the decision that the children should be placed with separate adoptive families. As medical adviser to the panel, she had had no prior involvement with the family and approached her task without any preconceptions regarding them. She is attached to the Royal Aberdeen Children's Hospital and has worked in paediatrics for many years. Again, she impressed as a highly professional witness who had taken great care in the assessments that she had to perform. She had met with Judy Gauldie and discussed the boys' cases with her. She gathered together and collated all the relevant information from the agencies which had been involved with the children but had not met them. It was not her normal practice, when preparing advice for the panel, to do so. She noted that C was showing developmental delay, that A had learning difficulties and she said that she thought that all of the children had attachment disorders. That expression is used to refer to a situation where a child's emotional development has been disrupted for some reason. As a result, they have difficulty in making emotional attachments as they grow up. Cynthia Smail, a very experienced social worker who is supervising A's placement also expressed the view, having met A in the course of providing support for the adoptive family, that he has an attachment disorder. She spoke of him resisting closeness, of being compulsively self-reliant and of not understanding emotion. Both Dr Rodger and Cynthia Smail were cross examined to the effect that their qualifications did not enable them to make such a diagnosis. Cynthia Smail accepted that, for a diagnosis, an expert would be required but it was evident that she was highly experienced in dealing with such difficulties and knowledgeable about them. Dr Rodger, similarly, accepted that for a definitive diagnosis, a psychiatric or psychological opinion would be required but, drawing on her own knowledge and experience, was very comfortable with making a presumptive diagnosis in this case.

[27] The point of the evidence regarding the children suffering from an attachment disorder was not to make a case to the effect that it was caused by the respondents. That was specifically disavowed by the petitioners' counsel. However, it was relevant as part of the picture of the challenges that will be presented to any carer of these children. It seemed to play a part in Dr Rodger's conclusion that it is just not practical to consider placing these children together in one family.

[28] Once the panel had received Judy Gauldie's Form E's and Dr Rodger's advice, it recommended that freeing for adoption applications should be made. That recommendation was transmitted to the Principal Reporter to the Children's Hearing, under and in terms of s.73(4) of the Children (Scotland) Act 1995 and advice to the court was thereafter provided by the Hearing in terms of s.73(13). That advice was contained in nos. 6/107, 6/108 and 6/109 of process and was to the effect that all three children should be freed for adoption. Further contact between the children and the respondents was ruled out by the Hearing and a specific recommendation was made that the identity of any adoptive family should be protected because both parents are so hostile. The plan is to place the children with separate families.

[29] A has now been placed with prospective adopters. They are committed to him and intend to lodge an application to adopt A if the present application to free him for adoption is granted. Neither B nor C are presently placed. As regards the question of whether they are likely to be placed in the future, the social workers who gave evidence regarding this matter, Christine Wilkie and Lorraine Hehir, were optimistic regarding the chances of their finding adoptive placements for the boys. Lorraine Hehir in particular spoke of having been successful in finding placements for children in a similar age group in 2001 and 2003. C's particular needs include that he has some unidentified neurological difficulties which affect his balance. There was also some suggestion that his intellectual development may have been impaired. In answer to specific questioning as to whether that was liable to affect the chances of him being placed for adoption, Lorraine Hehir said that they had been successful in placing a number of children with comparable special needs and difficulties. They were in fact undertaking a number of assessments of parents who had applied to adopt, at the present time. The implication was that prospective adopters for both B and C might be amongst them.

[30] Overall the evidence regarding the chances of finding adopters for B and C was positive and I conclude that it is likely that they will be placed for adoption.

4. The Law:
[31] The making of an adoption order is a highly significant step in the life of a child. It extinguishes any parental responsibility or parental rights relating to the child which is the subject of the order which were previously vested in a parent (Adoption (Scotland) Act 1978 s.12(3)) and transfers them to the local authority, pending adoption. Both the respondents in the present case are "parents" as defined by s.65(1) of the 1978 Act. To prepare the way for adoption the court is empowered to make an order freeing the child for adoption. In recognition of the significance of such a step, the legislation requires that certain criteria be met and certain principles applied , before a freeing order can be made. Some of these criteria and principles have been contained in the legislation since its enactment in 1978 and some of them are included as a result of amendment of the 1978 Act by the Children (Scotland) Act 1995, largely so as to reflect the overarching principle articulated in the 1995 Act of the need for promotion of the health, welfare and development of children being regarded as of paramount importance when decisions are made which affect them.

[32] Section 18 of the 1978 Act provides that the court may make an order freeing a child for adoption in the following circumstances :

"18.-(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.......

(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.

.......

(3) No agreement required under subsection 1(a) shall be dispensed with under subsection 1(b) unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption....."

[33] Accordingly, the grounds on which a parent's consent to a freeing order can be dispensed with are those that would apply in the case of an adoption petition. The grounds relied on by the petitioners in the present case are contained in the following provisions:

" 16 -(1) An adoption order shall not be made unless -

...........

(b) in the case of each parent ......the court is satisfied that -

(ii) his agreement to the making of an adoption order should dispensed with on a ground specified in subsection (2).

(2) The grounds mentioned in subsection (1) (b) (ii) are, that the parent......

...........

(b) is withholding agreement unreasonably ;

(c) has persistently failed, without reasonable cause, to fulfil one or other of the following parental responsibilities in relation to the child -

the responsibility to safeguard and promote the child's health , development and welfare;............"

In this case, the respondents were asked to agree to the children being freed for adoption but they have declined to do so.

[34] Sections 6 and 6A of the 1978 Act are also relevant. Their provisions include the following:

" 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 ;.........

(b).......

6A. In complying with its duties under section 6 of this Act , an adoption agency shall, before making any arrangements for the adoption of a child , consider whether adoption is likely best to meet the needs of that child or whether for him there is some better , practicable, alternative ; and if it concludes that there is such an alternative it shall not proceed to make those arrangements."

On a similar theme , section 24(3) of the 1978 Act provides :

"In considering whether to make an adoption order or an order under section 18(1), the court shall regard the welfare of the child concerned as its paramount consideration and shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not."

[35] Finally , regard requires to be had to the terms of s.73(14) of the 1995 Act , which are:

"A court which is considering whether, in relation to a child, to grant an application under ........section 18 ...of the said Act of 1978 and which, by virtue of subsection (13) above, receives a report as respects that child, shall consider the report before coming to a decision in the matter."

As I have already noted, such reports have been provided by the Children's Hearing in respect of each child. I have considered them. As regards the question of whether alternatives to adoption had been considered, there was oral and documentary evidence that they had been considered prior to the view being determined upon that adoption was the best way forward. That evidence was not challenged.

The test:
[36] The test that falls to be applied is a two stage one (Lothian Regional Council v A 1992 SLT 858; West Lothian Council v M 2002 SLT 1155). First it is necessary to ask whether either of the s.16 grounds relied on have been established. Then, if one or both of the grounds are found to have been established, it is necessary to consider whether the consent of the respondents should be dispensed with . It is difficult to envisage a case where, if the court determines that consent is being unreasonably withheld, it will not proceed to dispense with consent, almost as night follows day, making the transition to the second stage appear to be illusory. However, it is clear from the authorities that determination of the application must be approached in two stages, even in such a case. That is, accordingly, what I have done.

[37] A parent can be found to be withholding their consent unreasonably if, in all the circumstances, no reasonable parent would do so. The test is an objective one. If the refusal falls within what, in the circumstances of the particular case, can be considered to be the range of reasonable responses, then they cannot be found to be withholding consent unreasonably. That was established in Re W. (An Infant) 1971 AC 682 where Lord Hailsham said at p.709 :

"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 falls within the band of 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."

and has been followed since.

[38] Whether or not a parent has persistently failed without reasonable cause to fulfil the responsibility to safeguard and promote a child's health, development and welfare is a mixed question of fact and law. Whether a parent has actually failed to safeguard a child's health, development and welfare is a question of fact. To be categorised as a persistent failure, the failure must be not merely temporary or excusable (RG & RAG , Petrs , 2^nd Division, unrepd 26 February 1999) and in determining whether it can be categorised as being without reasonable cause, an objective test falls to be applied (Angus Council v C 2000 SLT 761), asking what would be the reaction of the hypothetical reasonable parent.

[39] If one of the grounds in s.16(2) is established and the second stage is reached, the court has a discretion. It seems clear that, in considering whether or not to exercise that discretion so as to dispense with consent, the provisions of s. 6, 6A and 24A of the 1978 Act must be considered as must all the evidence relevant to the establishment of those grounds and the advice provided by the Children's Hearing in terms of s.73(13) of the 1995 Act.

5. Submissions for the petitioners:
[40] Counsel for the petitioner submitted that the respondents' consent should be dispensed with. She referred to the facts and circumstances as contained in the Joint Minute, the reports prepared by the safeguarders for the Children's Hearing, the reports prepared by the Curator ad litem appointed in this process, the oral evidence of witnesses, and the documents referred to by them. As regards the reports of the Curator ad litem, founding on comments in A v B & C 1971 SC (HL) 129 as to the weight to be given to recommendations contained in such reports where the author has interviewed those involved, she submitted that they should be regarded as having significant weight since they were of recent origin and the curator had clearly interviewed the respondents and gained a distinct impression of them. She submitted that there was clear evidence of a persistent failure to safeguard and promote the children's health, development and welfare, given the evidence regarding what was happening within the family between late 1998 and May 2000 and the establishment of the grounds for referral to the Children's Hearing. Where factual matters regarding the care of the children were disputed, she invited me to prefer the evidence led for the petitioners . She accepted that this was not a case involving a single dramatic event or a single type of parental behaviour. Rather, it was made up of a number of separate failings, the most serious of which was probably the failure to ensure that the boys consumed adequate nutrition, which, when put together, showed a persistent lack of care.

[41] Counsel for the petitioners highlighted certain issues. As regards C, whilst it was not possible to say what exactly was the nature of his deficit, it was thought to be neurological, it affected his balance and his intellectual development. It was a specialty that needed to borne in mind in considering his needs. Then, she drew attention to the quality of the relationship between the respondents, something which had always been the subject of concern, particularly because of the second respondent's aggressive attitude. It was, on the evidence, a volatile relationship and it seemed that it would not change. However, it seemed unlikely that the first respondent would do other than continue living with the second respondent. The evidence was to the effect that she would not cope alone. She was, for instance, frightened if he was away from the house overnight. Further, the second respondent was, of the two, the one who had cooked and shopped. It did not seem that she would be capable of coping with these duties without him. It was, accordingly, clear that, if the children were returned to their parents that would be a return to a home lived in by both of the respondents. The second respondent was the real difficulty. It was not credible that he would co-operate with social workers in the future. He had not done so in the past and his convictions, the need for interdict, his undertaking and his demeanour in the witness box were not such as to suggest that he would do so in the future, whatever he said. Further, there was no sign that either respondent had changed. They both seemed to expect the same care package to be made available as before.

[42] In all the circumstances this was, it was submitted, a case in which consent was being unreasonably withheld. The discretion afforded should be exercised in favour of granting the order sought. Whilst there might be some concern about delay, given that some four years have elapsed since the children were removed from the respondents and over three years have elapsed since the petitioners' social work department reached the view that adoption was the best way forward, matters still had to be considered from the children's point of view.

6. Submissions for the Respondents:
[43] For the first respondent, counsel submitted that the fact that the boys were to be split up if adopted was sufficient for a reasonable parent to refuse consent. It did not matter that that was not, in terms, the objection put forward by the first respondent. It was implied in her view that the three children should all be returned to her. Further, it was not disputed that the boys had parents who loved them. The respondents had, prior to May 2000, done well in caring for their children, to a degree. They were entitled to approach matters on the basis that their plan was to look after their children with social work care. That was their right as part of a community which afforded its members such forms of assistance. Again, these were circumstances which showed that consent was not being unreasonably withheld. Further, they could be relied on as showing that the test for persistent failure to perform parental duties was not met. Even if consent was being withheld unreasonably and there had been a relevant lack of parental care , the discretion should not be exercised so as to grant the order sought because the children had been taken from a loving family in circumstances where they had not been specifically warned that they would lose them if they did not improve. It was not fair to the parents not to have appraised them of that. Regarding the first respondent's health, he accepted that there was a question mark over it, given the revelations in her evidence. However, she was now prepared to address the problem which was a positive sign.

7. Submissions for the second respondent:
[44] Counsel for the second respondent adopted the submissions made on behalf of the first respondent. He added that it was accepted that parental performance had fluctuated but it was a matter of fact and degree and it was inherently unlikely that the petitioners would have allowed the situation to stay unchecked for so long if the respondents were as inadequate as they were now contending. He also submitted that it was relevant that the respondents were not warned that they were at risk of losing their children. More could have been done to mediate. Separately, he submitted that the Curator ad litem's reports should not be given weight as regards any assessment of the respondents as they did not contain reporting of the sort referred to in A v B & C . Further, even if, which was not accepted, the failures in parental performance could be regarded as persistent, there was reasonable cause in that the children were particularly demanding and difficult. Regarding the second respondent's withholding of consent, it was, in all the circumstances, reasonable.

8. Decision:
[45] I have no difficulty in concluding that there was, in this case, persistent failure on the part of the respondents to discharge the responsibility of safeguarding and promoting the children's health, development and welfare. There was a wealth of acceptable evidence of failures to attend to the children's basic needs. The failures subsisted notwithstanding sustained and persistent efforts on the part of the social workers responsible for supporting the family. They tried hard to teach the respondents how to care for their children but after fourteen months of intensive effort, they felt that they had made no progress. There was never any suggestion that the respondents meant to harm the children or that they did not, in their own way, feel love for their children but, sadly, they seemed both unwilling and, in many respects, unable to meet the requirements of providing basic care. An objective benchmark was the continuous concern regarding the children's weight. At a time when society is so concerned regarding childhood obesity, it seems unusual to find a family where the concern was the reverse but it was clearly a very real one in the case of this family and there was ample evidence that simple and clear instruction was given to the respondents regarding ways in which it needed to be addressed. It speaks volumes as to their capacity to follow advice and training and as to the household regime for which they were responsible that the children were all underweight when taken into foster care in May 2000. There was also evidence that the children were anxious about food and when and whether they would receive their next meal, at that stage. There were then the various other factors relied on, to which I have already referred.

[46] Put together, the picture is a clear one of persistent failure to fulfil the parental responsibility of promoting and safeguarding health, development and welfare and I cannot see that there was any reasonable cause. It is not enough, in my view, to say that these were difficult children to handle. The parenting of any family of three young boys is bound to present significant challenges. That is, though, no answer to the nutritional concerns and, equally, it is evident that much of the children's behavioural challenges arose from the respondents' failures as carers. For example, Faye McDonald spoke of trying to get the first respondent to understand that if she put the boys to bed too early and without settling them down properly, then they would, inevitably, get up to mischief. Similarly, Sheila Ritchie spoke of a concern that when one of the children had, as a two year old run into the road, the first respondent had reacted by commenting that he must be deaf. She did not, it seemed, understand that, at that age, he would not understand that roads were dangerous places.

[47] I turn then to the question of whether the respondents are unreasonably withholding consent. Again, I have no difficulty in finding that they are. The circumstances are that these children were taken away from the respondents' home for very good reasons, in May 2000. There was no evidence that, so far as the respondents' parenting abilities are concerned, anything has changed. Further, there is a clear indication that the second respondent would be unlikely to co-operate with social work intervention despite the fact that there is no doubt that such intervention would be required if the children were returned to their parents.

[48] The children have not seen the second respondent since May 2000 and they have not seen the first respondent for over two years. There was no evidence of their having expressed any desire to see either parent since then or of any of the professionals involved with them being of the view that it would be of benefit for them to do so. There is now a real doubt regarding the state of the first respondent's health.

[49] The two younger children are being cared for in a foster family whose warmth and fortitude was evident from the manner and content of the evidence of the foster mother. There is distinct optimism regarding the likely success of the adoption placement and good work is being done to support them and assist A in his development. The children's nutritional status is no longer a concern nor is their safety. Credibly, no-one suggested that the children are now carefree, happy, well settled, normal children. They are clearly children with particular needs, not least of which is the difficulty which they all have with forming emotional attachments and the fact that they all now require so much by way of attention from their adult carers, that the independent professionals involved reached the clear view that they need, in their own interests, to be placed separately. In all these circumstances, it seems to me that no reasonable parent would withhold their consent to adoption.

[50] Turning then to the question of whether that consent should be dispensed with, I have reached the view that orders should be pronounced as sought by the petitioners. For the avoidance of doubt, I have considered whether it is better for the children that an order be pronounced than that no order be pronounced (s.24(3) of the 1978 Act ). I am also satisfied that adequate consideration has been given to the question of whether any alternative to adoption is a viable option in this case. I agree with counsel for the petitioners that, given the terms of s.6 of the 1978, when it comes to exercising the discretion that is inherent in the second stage, the matter has to be looked from the point of view of the interests of the children. It is clear that the interests of these three children lie in their future being made definite and secure without further delay. It is equally clear that there is such doubt about the respondents' abilities to care adequately for them that return to the natural parents is not a viable option. Their lives are fast progressing and the time for a probationary period is past. I do not agree that the petitioners should have done more to make clear to the respondents that they were running the risk of losing their children. They knew about the petitioners ability to take children into care, given what had happened to their first child. Further, reports for the Children's Hearing, particularly that which was prepared for the Hearing in March 2000 (No. 6/30 of process), to which the respondents had access, made it quite plain that the petitioners had it in mind to remove the children from the family home. The local authority social workers involved with the family, the independent social worker and medical adviser involved in making assessments, the Children's Hearing, the panel and the Curator ad litem all consider that they should be freed for adoption. I can find no reason to fault the views of these persons and bodies. I do not intend to suggest that the Court's exercise of discretion is merely a rubber stamping exercise. It is clearly not. However, their reports are such as they should, in my view, be given significant weight since they are self evidently the result of a careful and professional approach. The same can be said of those of them who gave evidence at the proof.

[51] In all the circumstances, I have no hesitation in exercising the discretion available to me and granting the orders sought. I will also grant an order under s.18(9) of the 1978 Act as there is no continuing need for compulsory measures of care. Section 17 of the 1995 Act will, of course, still apply in respect that the children are being looked after by the petitioners.