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Cite as: [2005] ScotCS CSIH_90, [2005] CSIH 90, 2006 SCLR 530

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Dundee City Council v. GK & Anor [2005] ScotCS CSIH_90 (22 December 2005)

INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lord Marnoch

[2005CSIH90]

XA58/05

OPINION OF THE LORD PRESIDENT

APPEAL

From the Sheriffdom of Tayside, Central and Fife at Dundee

under section 18 of the Adoption (Scotland) Act 1978

in the cause

DUNDEE CITY COUNCIL

Respondents;

against

G.K.

Appellant;

and

THE SCOTTISH MINISTERS

Respondents:

for

An Order Freeing for Adoption

_______

For the appellant: Mrs Clarke; Drummond Miller, WS (for Findlay Macrae, Dundee)

For the first respondent: Jack; Haig-Scott & Co, WS

For the second respondents: Wolffe; Solicitor to the Scottish Executive

22 December 2005

[1] I agree with the Lord Justice Clerk that, for the reasons given by him, none of the grounds of appeal 1 to 4 inclusive succeeds. I would add only that, whether or not Mrs. Clarke's concession as to the interdependence of grounds 3 and 4 is correct, on the facts of this case the sheriff was entitled, for the reasons given by the Lord Justice Clerk, to reach the view which he did on each of the stages identified in Lothian Regional Council v A 1992 S.L.T. 858.

The incompatibility contention as formulated
[2] The appellant's Grounds of Appeal include a paragraph 5 in the following terms:

"In any event, the terms of Section 18 of the 1978 Act in so far as failing to provide a mechanism for contact and other related orders which may be appropriate or necessary in the child's and in any given child's circumstances are incompatible with the Second Respondent's rights and the rights of his child under Art 8 and 6 of the ECHR. Similarly, the terms of Section 11(4) of the Children (Scotland) Act 1995 are incompatible with the Second Respondent's rights and the rights of his child under Arts 6 and 8 of the ECHR. Both statutory provision should be the subject of a Declaration of Incompatibility".

[3] Although presented as a ground of appeal, any declaration of incompatibility made by this court under section 4(2) of the Human Rights Act 1998 can have no effect on the outcome of the appeal itself (section 4(6)). Nonetheless, as an issue of incompatibility has been raised and argued in the proceedings, it is necessary to address it.

[4] Paragraph 5 on its face seeks a declaration of incompatibility in respect of each of section 18 of the Adoption (Scotland) Act 1978 ("the 1978 Act") and section 11(4) of the Children (Scotland) Act 1995 ("the 1995 Act"). The oral argument presented to us was, however, directed primarily to the latter provision.

The legislative provisions
[5] Section 11 of the 1995 Act, in so far as material, provides:

"(1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to -

(a) parental responsibilities;

(b) parental rights;

(d) ... the administration of a child's property.

...

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders -

...

(i) with whom; or

(ii) if with different persons alternatively or periodically, with

whom during what periods,

a child under the age of 16 years is to live (any such order being known as a 'residence order');

(d) an order regulating the arrangements for maintaining personal relations

and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a 'contact order');

...

(3) The relevant circumstances mentioned in subsection (1) above are -

(a) that application for an order under that subsection is made by a person

who -

(i) not having, and never having had, parental responsibilities or

parental rights in relation to the child, claims an interest;

(ii) has parental responsibilities or parental rights in relation to the

child;

(iii) has had, but for a reason other than is mentioned in subsection

(4) below no longer has, parental responsibilities or parental rights in relation to the child; ...

(4) The reasons referred to in subsection (3)(a)(iii) above are that the parental responsibilities or parental rights have been -

(a) extinguished on the making of an adoption order;

(b) transferred to an adoption agency on the making of an order declaring

the child free for adoption;

Fertilisation and Embryology Act 1990 (provision for enactments about adoption to have effect with modifications) on the making of a parental order under subsection (1) of that section; or

(d) transferred to a local authority by a parental responsibilities order".

[6] The reasons mentioned in that last subsection require further explanation. As regards (a), an "adoption order" includes such an order made under section 12(1) of the 1978 Act. The effect of the making of such an order is, among other things and subject to an exception which is immaterial for present purposes, to extinguish any parental responsibility or parental right which immediately before the making of the order was vested in a person who was a parent of the child. As regards (b) an "adoption agency" includes a local authority which maintains an adoption service under the 1978 Act (section 1(4)). Such a body is empowered to make, under section 18(1) of that Act, an application to the sheriff for an order declaring a child for which it is responsible free for adoption ("a freeing order"). On the making of a freeing order the parental responsibilities and parental rights in relation to that child are transferred to the applicant adoption agency (section 18(5)). The reason mentioned in section 11(4)(c) was not discussed in the course of the debate; in broad terms it concerns the making of a parental order after a surrogacy arrangement. As regards section 11(4)(d), provision is made by section 86 of the 1995 Act whereby, on the application of a local authority, a sheriff may, in certain circumstances and subject to certain limitations, make an order transferring certain parental rights and responsibilities relating to a child to that authority; only passing reference was made in the course of the debate to this provision.

[7] The 1978 Act provides by section 18(1) that 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 -

...

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".

[8] One of the grounds specified in section 16(2) is that the parent or guardian "is withholding consent unreasonably".

The position of the appellant
[9] The appellant is a person who, prior to the making of any order under section 18 of the 1978 Act, had, by virtue of an agreement made under section 4 of the 1995 Act, parental rights and responsibilities in respect of CM. In the event of the making of a final order in relation to CM (and the consequential transfer of parental rights and responsibilities to the respondent Council) the appellant would no longer have any subsisting parental responsibilities or parental rights in relation to the child (under section 11(3)(a)(ii) of the 1995 Act) nor, as his parental rights and responsibilities had ceased for the reason referred to in subsection (4)(b), could he bring himself within subsection (3)(a)(iii) of that section. The legal result is that, so long as that status existed, he would not be a person who could apply for an order of the kind referred to in section 11(1). In the event of an adoption order being made in respect of CM the appellant would likewise be unable (by virtue of subsection (3)(a)(iii), as read with subsection (4)(b)) to make an application for an order under section 11. (The same consequences would follow were either of subsections (4)(c) or (d) to apply).

The submissions
[10] The broad thrust, as I understood it, of the submissions advanced by Mrs. Clarke for the appellant was that the statutory scheme which gave rise to this incapacity was incompatible with the appellant's rights under Article 8 of the European Convention. That Article, in so far as material, provides:-

"(1) Everyone has the right to respect for his ... family life ...

(2) There shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others".

[11] Events, it was submitted, might occur, at some time or times in the future, in which the appellant, as the birth father of the child, should in the exercise of his Convention right be able actively to intervene in his life; and, if need be, be able to make an application under section 11. A situation figured was that, if CM were subsequently adopted and his adoptive parents later killed in a common calamity, the appellant as his birth parent should have the means of securing his welfare. For legislative provisions to deny him such means, and in particular "standing" for the purposes of doing so, was an infringement of his Article 8 right, particularly where a total stranger could make an application under that section. The statutory provision, which in effect placed a "shut door" before the birth parent, also infringed the Article 8 right of the child. Further, procedure by way of application for a freeing order did not, in contrast to procedure for an adoption order under section 12 of the 1978 Act, allow for the order to be subject to a condition under which a birth parent might be held entitled to contact with his or her child (see section 12(4)). This difference had been noticed in West Lothian Council v McG 2002 S.C. 411, where the problem it might present for compliance with the Human Rights Act 1998 had been noted. This difficulty might have been overcome by making, as in England, provision whereby any application by a birth parent in the position of the appellant was subject to leave being obtained from the court. Changes were currently under consideration by the Scottish Executive; but the legislation in its present form could not be read down under section 3 of the Human Rights Act 1998 and was, as enacted, incompatible with the Convention. Reference was made to Johansen v Norway (1997) 23 EHRR 33 and Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557. Article 6 of the Convention might also be engaged.

[12] Mr. Jack on behalf of the respondent Council submitted that, in the circumstances of this case, it could not be said that there was any infringement of the appellant's Article 8 right. The sheriff had made clear findings that it was, at least at present, not in CM's best interests that he should have direct contact with his birth parents. Were such contact to be attempted, the birth parents, in their desire to have CM back with them, would be likely to undermine his placement with the prospective adopters. The sheriff had recognised that he had no power in a freeing order process to impose any condition in respect of contact; but having regard to the whole circumstances, he had decided that it was in accordance with the welfare principle that such an order be made in respect of this child.

[13] Mr. Wolffe on behalf of the Scottish Ministers, who had entered the process at short notice, urged the court to restrict its consideration to the particular context of the present case, namely, to the making of the freeing order and its consequences; the court should not be drawn into wider issues, such as the impact on Convention rights of a birth parent in respect of whose child an adoption order or a parental responsibilities order had been made. There were, for example, importantly different consequences of a freeing order as against an adoption order. On the making of a freeing order the relative parental rights and responsibilities were transferred to the local authority. Should that authority act incompatibly with Convention rights, any victim of such action would have a remedy under section 7 of the Human Rights Act 1998. The Scottish Ministers had currently under consideration possible reforms to adoption law and practice. Following a review by an Adoption Policy Review Group, chaired by Sheriff Principal Cox, the Scottish Ministers were now consulting prior to implementing certain reforms. The changes envisaged were on policy grounds, not because it was accepted that existing legislation infringed human rights. In so far as the appellant's submissions were to the effect that the making of a freeing order was in itself a breach of Article 8, that submission was plainly wrong. There was nothing in Strasbourg jurisprudence which supported such a submission. It was plain that the child's interests might override the interests of a parent. Provided that in the particular circumstances the measures taken (which might include a "closed" adoption or some similar measure) were justified, there would be no infringement of Article 8. Reference was made to Johansen v Norway, Soderback v Sweden (1998 29 EHRR 95, McMichael v United Kingdom 15 EHRR CD 80 (App. No. 16424/90) and In re B [2002] 1 WLR 258, especially at paras. 29-31. As to the main submission made by the appellant's counsel, the common calamity which she figured was wholly speculative. It could not be said that there was any present breach or that the appellant was the victim of any such breach. That of itself was sufficient reason to make it inappropriate for the court to make any declaration of incompatibility of the existing legislation. Reference was made to Re S [2002] A.C. 291, per Lord Nicholls of Birkenhead at para. 88. There was nothing incompatible with the Convention right in a statutory scheme which sought, in the interests of a child, to provide protection for adoptive or prospectively adoptive parents. In any event, even if there were to be an infringement of any of the appellant's Convention rights, it did not follow that dismissal of the freeing petition was an appropriate disposal. Reference was made to Attorney General's Reference (No. 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, per Lord Bingham of Cornhill at para. 21. The Scottish Ministers also wished the court to note their concern at the lateness with which they had received notice of a contention that a declaration of incompatibility was to be sought. Guidance was appropriate. Reference was made to Poplar Housing Association Limited v Donoghue [2001] EWCA Civ 595; [2002] QB 48, at paras. 58-9.

Discussion
[14] As in any case involving an alleged infringement of Convention rights, it is necessary to address and resolve the issues raised in the factual context in which they arise. At the time of the sheriff's determination CM was about 6 years and 9 months of age. Concerns about his welfare first arose when he was 4 months old. Between then and April 2000 (when CM was about 1 year and 10 months old) he lived at times with his birth parents and at other times was in foster care. He has not lived with his birth parents since April 2000. He has had no direct contact with either of them since in or about May 2002. He now has no significant attachment to either of his birth parents. His primary attachment is to the prospective adoptive parents, Mr. and Mrs. N., with whom he has lived since about February 2002. CM is happy and well cared for there. Direct contact between CM and his birth parents is not in CM's interests, at least until he reaches the state of maturity necessary to make an informed choice about the matter. Were direct contact to be attempted, the birth parents, in their desire to have CM back with them, would undermine the security of his new family life. CM has a life story book, which is available to him and which contains information about his birth parents and his early life. If adopted by the prospective adopters, they would be open to and willing to allow some indirect contact (sometimes known as "letterbox contact") to occur with the birth parents. Indirect contact would be of benefit to CM, provided it was carefully planned and co-ordinated by the Social Work Department, the birth parents and the prospective adopters.

[15] No issue arises in this appeal about indirect contact. The appellant's primary contention is that his Convention right under Article 8 is infringed by domestic legislative provisions which disable him from making, at any time during the childhood of CM, an application to the court under section 11 of the 1995 Act, including one for a "residence order" or for a "contact order" within the meaning of section 11(2)(c) and (d).

[16] It is not in dispute that Article 8 is engaged. The making by a court of a freeing order under section 18(1) of the 1978 Act, with its legal and practical consequences, interferes with the exercise by a birth father such as the appellant (who immediately prior to that event had parental rights and responsibilities) of his right to respect for his family life. Such interference constitutes a violation of Article 8 unless it is "in accordance with the law", pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as "necessary in a democratic society" (Johansen, para. 52). It requires to be justified.

[17] Where, as in Johansen, the issue is whether a particular measure or particular measures taken by a public authority, including a decision by a court, constitutes a violation of Article 8, it will be necessary to consider whether these three conditions are satisfied. It was not wholly clear whether Mrs. Clarke's submission included a contention that the freeing order made by the sheriff's interlocutor of 18 March 2005 constituted, in the particular circumstances before him, an infringement of the appellant's Article 8 right or was limited to a wider attack on the legislative framework, including its compatibility with the Convention. It is, it seems to me, difficult to mount such a wider attack unless, in the particular circumstances, a party is a "victim" of the measure taken (with its legal and practical consequences) - not least because, unless he is, it would hardly be appropriate for the court to grant to him relief by way of a declaration of incompatibility (In re S, at para. 88). Moreover, issues of alleged infringement of human rights cannot be addressed in a void but must be determined in the factual context in which they arise. I accordingly first address the three conditions referred to in Johansen.

[18] It is indisputable that the freeing order made was "in accordance with the law"; the sheriff was expressly required by domestic law, namely, section 18(1) of the 1978 Act, to make such an order if satisfied as there mentioned. Nor can it be disputed that the making of that order pursued an aim which was legitimate under paragraph 2 of Article 8; it was clearly intended to secure the welfare of CM. In any question as to whether the order made was "necessary in a democratic society", it is necessary to consider whether, in light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8(2) (Johansen, para. 64).

[19] There can be no doubt that, having regard to the history which I have narrated, steps required to be taken to secure the welfare of CM. On the sheriff's findings (which are not disputed), his birth parents, while they loved their child, were quite incapable personally of providing for his welfare. It is also plain that these parents, including the appellant, still wanted direct contact with CM and that they harboured aspirations that he would be returned to their care. Such contact was not, the sheriff found, in CM's best interest, at least until he reached the state of maturity necessary to make an informed choice about the matter - a stage which, given CM's current age, is still well in the future. CM is safe and secure in his current placement and has the prospect of being adopted by those who have cared for him in family for a substantial period. The sheriff was well aware that a consequence of his making a freeing order under section 18(1) would be to bring into play section 11(3) and (4) of the 1995 Act, so disabling the birth parents, including the appellant, from making any application to which the latter section related. He was entitled to be satisfied that, in the whole circumstances established before him and due regard being had to the consequences of the making of a freeing order, the birth parents' consent to the making of an adoption order should be dispensed with. The reasons adduced to justify the making of the freeing order were accordingly relevant and sufficient for the purposes of Article 8(2). Thus, in so far as any question of the kind which arose in Johansen arises in the present case, there was no violation of the appellant's Article 8 rights.

[20] Mrs. Clarke, however, submitted that the circumstance that the freeing order had been properly made was no answer to her contention that the relevant legislation itself constituted a violation of Article 8. She was not, she said in response, challenging the lawfulness of the making of a freeing order per se; what she was challenging was the lawfulness of the statutory consequences of such an order, as provided for by section 11(3)(a)(iii) (as read with section 11(4)(b)) of the 1995 Act. Although Mrs. Clarke did not dwell upon the reasons mentioned in paras. (c) and (d) of section 11(4), it was plain, as illustrated by her "common calamity" example, that her attack was on the disabling effects of section 3(1)(iii) (as read with section 11(4)) not only as regards birth parents whose parental rights and parental responsibilities had been transferred to an adoption agency, but also as regards such parents who had ceased to have such rights and responsibilities for any of the reasons mentioned in section 11(4) - including upon the extinction of such rights and responsibilities by the making of an adoption order.

[21] Given the factual circumstances of this case, it is, to say the least, doubtful whether it is necessary to give an answer to the very general question raised by the submission; but I respond to it as follows.

[22] Such disabling provisions, I accept, engage Article 8. They restrict the ability of persons affected by them to seek, in proceedings to which section 11 applies, orders which they might otherwise have been free to pursue with respect to their children. They do so by the technical device of depriving them of title to seek such orders. The provisions, being statutory enactments, are prescribed by law; they are unambiguous and cannot be "read down" by the invocation of section 3 of the Human Rights Act 1998. They do, however, in my view, pursue a legitimate aim. They are designed to preserve the practical integrity of the categories of order mentioned in section 11(4). In D v Grampian Regional Council 1995 S.C. (H.L.) 1 a birth mother, whose parental rights and duties had, on the making of a freeing order, vested in a local authority, presented an application under section 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 for an order for custody of, which failing of access to, her children. The House of Lords construed section 3(1) to the effect that she had no title to present such an application. At page 6 Lord Jauncey of Tullichettle pointed out some of the legal and practical difficulties which would arise if a parent so divested could make such an application. The decision of the House of Lords in D v Grampian Regional Council was delivered while the Bill which became the 1995 Act was being considered by Parliament. The subsequent statutory provisions, now contained in section 11(3) and (4) of that Act (which superseded section 3(1) of the 1986 Act), were enacted to give statutory effect to the decision of the House of Lords and to clarify certain doubts which had arisen (Commentary by Professor Norrie on the 1995 Act in Current Law Statutes 1995 at pages 36-33 to -35; see also Wilkinson and Norrie - Parent and Child (2nd ed.), paras. 9.51 and 9.56). As Professor Norrie points out at page 36-35 of the Commentary there may be very exceptional cases in which the rule seems to work harshly, though that harshness might be mitigated by other means which he mentions. But the possibility of harshness in very exceptional circumstances does not have the result that the disabling provisions in section 11(3) and (4) are themselves not Convention-compliant. Taking account of the discretion vested in the national legislature to settle the particular means by which a legitimate aim may be pursued, I am of opinion that these statutory provisions, viewed as a method of securing that aim, can properly be said to be proportionate and, in all other material respects, necessary in a democratic society. It is not determinative that some alternative measure (for example, a requirement of leave to apply), might have been adopted, even if that alternative might on reflection seem preferable.

[23] That is not to say that there may not be circumstances in which, regard being had to the legal restrictions consequential on the making of a freeing order or to other considerations, it may be inappropriate in a particular case to make such an order. In West Lothian Council v McG, where the circumstances were very different from those of the present case, concerns were expressed about the consequences, including possible human rights consequences, of the adoption in some circumstances of procedure by way of freeing order. In some cases a court might not, having regard to the legal consequences, be satisfied that the birth parents' agreement to the making of an adoption order should be dispensed with. This is not such a case.

[24] The Scottish Executive has under consideration possible changes in the legal framework for providing security to children and young people who can no longer live with their birth families. These changes may include the replacement of freeing orders by some other legal mechanism. In a world of changed or changing perspectives of what legislative framework is in the 21st century best designed to provide security for such vulnerable persons, there may be good policy reasons for making changes. As, however, I am satisfied that the appellant is not the victim of any actual or proposed breach of Article 8 in respect of the existing legislative framework, it would not, in my view, be appropriate for this court to grant relief by way of a declaration of incompatibility.

[25] I would add that we heard no developed argument in relation to any possible infringement in this context of Article 6. In these circumstances it is unnecessary to discuss any relevance which that Article may have in circumstances such as the present.

[26] When this case was at avizandum the attention of the court was drawn to a decision dated 4 November 2005 made by Sheriff Horsburgh at Edinburgh Sheriff Court in the petition Midlothian Council v K.A.A.W. In that case the sheriff had, without inquiry, dismissed a petition by the Council for a freeing order in respect of two children. Parties to the present case were invited to lodge written submissions in relation to that decision with the opportunity, if any party should require it, of an oral hearing on it. Each was content with a written submission. These submissions have been considered in so far as they bear directly on the sheriff's grounds of judgment.

[27] The sheriff noted that domestic law made provision for the making of an adoption order, to which might be attached a condition allowing a birth parent contact with the relative child, and for the making of a freeing order, which did not allow of the attachment of such a condition. The making of a freeing order, he held, was not necessary for the protection of the rights and freedoms of others (in particular the children) since these would not be adversely affected if adoption order procedure were followed. Accordingly, the granting of a freeing order would, he held, be an infringement of the birth mother's right to family life under Article 8. On that basis he dismissed the petition without inquiry into the facts.

[28] Sheriff Horsburgh's decision may yet be the subject of appeal. That being so, it is undesirable, in the absence of argument from the directly affected parties, to reach any concluded view on the sheriff's grounds of judgment. However, for the purposes of the present case, I make the following general observations. In the absence of inquiry, or at least of agreement on all material factual matters, it may be impossible to conclude that the making of a freeing order is an infringement of a birth parent's right to family life under Article 8. Critical to any issue of infringement of the parent's right is whether the rights and freedoms of the particular child or children are protected. In some cases, due regard being had to the welfare of a particular child (as seen against the history of that child's relationship with his or her birth parents and the need to establish and promote a new family relationship between the child and any prospective adopter or adopters), the making of a freeing order may be a proportionate measure. The present case is, in my view, of that kind. The existence of an alternative mechanism does not appear to me to render in every case procedure by way of an application for a freeing order unnecessary, in the relevant sense, for the protection of the rights and freedom of an affected child. That alternative (involving, as it does, a direct confrontation in litigation between birth parent and prospective adopter) may, in a particular case, give rise to disadvantages which impinge adversely on the child's rights and freedoms.

[29] It remains only to comment on the concern raised by Mr. Wolffe about the very late notice received by the Scottish Ministers of the appellant's intention to seek a declaration of incompatibility. The present arrangements (under Chapter 82 of the Rules of Court) are, standing alone, less than satisfactory. In my view provision should be made, by amendment of the Rules of Court, to remedy the mischief which has been identified.

Decision
[30] In the foregoing circumstances I move your Lordships to refuse the appeal so far as based on grounds 1 to 4 inclusive and to refuse to make the declaration sought.

INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lord Marnoch

[2005CSIH90]

XA58/05

OPINION OF THE LORD JUSTICE CLERK

APPEAL

From the Sheriffdom of Tayside, Central and Fife at Dundee

under section 18 of the Adoption (Scotland) Act 1978

in the cause

DUNDEE CITY COUNCIL

Respondents;

against

G.K.

Appellant;

and

THE SCOTTISH MINISTERS

Respondents:

for

An Order Freeing for Adoption

_______

22 December 2005

Introduction
[31] This appeal relates to CM, a boy born on 5 June 1998, of whom the appellant is the father. The first respondent is an adoption agency for the purposes of the Adoption (Scotland) Act 1978 (the 1978 Act). The appeal is taken against an interlocutor dated 18 March 2005 by which Sheriff McCulloch at Dundee, on the petition of the first respondent, dispensed with the agreement of SM, the child's mother, to an adoption order in terms of sections 16(1)(b)(ii), 16(2)(b) and 16(2)(c) of the 1978 Act; dispensed with the agreement of the appellant to an adoption order in terms of sections 16(1)(b)(ii) and 16(2)(b), and declared in terms of section 18(1)(b) that the child is free for adoption. SM has abandoned her appeal.

[32] The appellant has lodged five grounds of appeal, in the fifth of which he seeks a declaration that section 18 of the 1978 Act and section 11(4) of the Children (Scotland) Act 1995 (the 1995 Act) are incompatible with his rights and those of the child under the European Convention on Human Rights (the Convention). The second respondents have entered the process to oppose that ground. I shall deal with it separately.

[33] From now on, I shall refer to the first respondent as "the respondent" and to the second respondents as "the Scottish Ministers."

The history
[34] SM and the appellant met in or about 1996 when they were in a hostel for the homeless. They have had a relationship with one another since then. SM suffers from a number of long-standing illnesses and has a history of alcohol abuse. She has had mental health problems since her early teenage years. She has another son who is brought up by her parents. She has no contact with that son, or with her parents or any other family member. The appellant has suffered from drug and alcohol problems which he has overcome. He has two sons from a previous marriage. He has no contact with either of them or with any other family member.

[35] In view of a submission by counsel for the appellant that the respondent failed to consider all practical options before applying for the freeing order, I shall give a shortened account of the relevant history as set out in the sheriff's findings.

October 1998 - December 1999
[36] In October 1998 SM's behaviour was such that CM had to be accommodated with foster carers for a few days. When he was returned to the care of his parents, the respondent's Social Work Department gave them intensive support. CM was placed on the child protection register. From then until July 1999 the appellant was his primary carer. On several occasions SM was drunk, argumentative and abusive. In July 1999 the child was accommodated with foster carers and the Social Work Department was granted a child protection order to prevent his removal from foster care. On 2 August 1999 the children's hearing granted warrant to the Social Work Department to keep the child in a place of safety for the period 2 August 1999 to 23 August 1999. The natural parents had regular contact with him at that time.

[37] At about this time SM was still drinking. On 3 August 1999 she was detained under section 24 of the Mental Health (Scotland) Act 1984. On 20 August 1999 the sheriff, on the application of the Reporter and of consent, held certain grounds of referral and the supporting statement of facts to be established. On 23 August 1999 the children's hearing placed the child under the supervision of the respondent's chief social work officer. On 30 November 1999 the children's hearing varied the supervision requirement to a home supervision requirement on the basis that SM was receiving support for alcohol abuse and that circumstances had improved; that she was receiving support from various agencies, and that the appellant was supportive towards her and had attended some of the support meetings with her. Thereafter a comprehensive rehabilitation plan was drawn up by the Social Work Department and contact was increased to include overnight stays at home.

January 2000 - September 2000
[38] In January 2000 the child was returned to the care of his parents. After that the parents were intensively supported by various agencies; but the care of the child deteriorated. With effect from 13 March 2000 the appellant acquired parental rights and responsibilities in respect of the child in terms of section 4 of the 1995 Act. Soon after, he reported to the Social Work Department that he could not stop SM from drinking nor protect the child from their arguments; that he was unaware of SM's present whereabouts following her discharge from hospital after an overdose, and that he was unable to meet the child's needs at that time. On 7 April 2000 the Social Work Department obtained a further child protection order and placed the child with foster carers. The child has not been in the care of SM and the appellant since then. On 12 April 2000, at a looked-after children review, a decision was made to seek permanent care for the child through adoption by way of a freeing order. Soon after that the children's hearing granted the respondent's social work officer a place of safety warrant. The warrant was renewed several times.

[39] On 30 June 2000 the sheriff, on the application of the reporter, held certain grounds of referral and the supporting statement of facts to be established. On 24 August the respondent's Adoption and Permanence Panel (the APP) recommended that the child be freed for adoption. On 4 September 2000 the respondent's agency decision-maker approved that recommendation. During this period supervised contact took place. The parents missed some sessions. At others, SM was under the influence of drink.

October 2000 - December 2001
[40] On 25 October 2000 the children's hearing held an advice hearing and continued the hearing for a safeguarder's report. On 6 December 2000 the children's hearing received a recommendation from the safeguarder that one final attempt at rehabilitation should be made. On 22 February 2001, having considered the safeguarder's report and reports from other professionals, the APP recommended that a freeing for adoption application should not be submitted meantime and that a rehabilitation plan should be presented to the next children's hearing.

[41] On 6 March 2001 the children's hearing continued the supervision requirement for a further three months. It decided that contact should be increased, at the child's pace, and that rehabilitation should begin as soon as possible. On 12 March 2001 a looked-after children review, at which SM and the appellant were present, decided to request Children First to assess whether or not the child could return to his parents on a permanent basis. A contact schedule was agreed. On 17 May 2001 the APP recommended that a further assessment was required and deferred any decision for three months until the outcome of the assessment was complete. On 29 May 2001 the agency decision-maker approved that recommendation. On 5 June 2001 the children's hearing continued the supervision requirement for a further three months. In mid-2001 SM and the appellant attended contact as required of them and had the child in their home for periods, but there was no improvement in their parenting skills. The assessment concluded that the child's interests would not be served by his returning to the care of his parents.

[42] Towards the end of July 2001 the child stayed with his parents for a period of about seven to ten nights while his foster carer was on holiday. This arrangement was ended by the social workers in light of the mother's drinking and the rows between the parents. On 1 August 2001 there was a disturbance involving both parents when they took the child to a public park in the company of an officer of Children First. That officer later reported jointly with the Social Work Department that the parents had failed to improve their parenting or to meet the child's needs, and that it was not in the child's interests to return to live with them.

[43] On 23 August 2001 the APP recommended that the child was in need of permanent substitute care and that this should be achieved by adoption by way of a freeing order. That recommendation was approved by the decision-maker on 3 September 2001. Meanwhile the children's hearing supervision requirement was maintained in force. On 6 December 2001 the respondent lodged the present petition. The child was then matched with prospective adoptive parents.

January 2002 - May 2002
[44] After about January 2002 the bond with the parents became less strong. The child began to be fearful of being removed from his placement by his parents. On 11 February 2002 the children's hearing again continued the supervision requirement and decided that the child should reside with the prospective adopters. He has remained with them ever since. The hearing also decided that the child was to have supervised contact with the parents for one hour each fortnight. The parents appealed to the sheriff against that decision. SM did not proceed with the appeal. On 19 April 2002 the appellant abandoned it.

[45] Thereafter the curator ad litem and reporting officer reported to the court that the freeing order should be granted as it would enable the child's needs and welfare to be safeguarded and promoted. In July 2002 a children's rights officer met the child, the prospective adopters and others at the request of the Social Work Department. The child became distressed at the prospect of contact and refused to go. The children's rights officer concluded that the child should not attend. Thereafter, on the recommendation of the safeguarder and on a report from the children's rights officer, the children's hearing decided that the child should have no contact with the parents. Neither of the parents appealed against that decision. The child has had no direct contact with either of them since about May 2002.

The decision of Sheriff Pritchard in the first proof
[46] A proof in this petition was held in November 2002. On 29 November 2002 Sheriff Pritchard dismissed the petition on a human rights point that he had raised ex proprio motu. His reasons are not relevant to this appeal. The respondent appealed to the Court of Session from that decision.

The decision of the children's hearing on contact
[47] On 12 December 2002 the children's hearing continued the supervision requirement and decided that the child's contact with his parents should not be reinstated. The appellant appealed to the sheriff against that decision, but later abandoned the appeal.

The respondent's appeal from the decision of Sheriff Pritchard
[48] By interlocutor dated 27 February 2004 an Extra Division allowed the respondent's appeal and returned the case for proof before another sheriff. The appellant applied for legal aid to appeal to the House of Lords, but towards the end of 2002 he decided not to pursue the matter.

The decision of Sheriff McCulloch in the second proof
[49] Sheriff McCulloch held the proof in January-February 2005 and gave judgment on 18 March 2005. His findings are unambiguous. The child no longer has a significant attachment to either of his parents. His primary attachment is to the prospective adopters. He is safe and secure in their care. He is happy and well cared for. If they adopted him, they would be willing to allow some indirect contact with the natural parents. Direct contact is not in the child's best interests, at least until he is mature enough to make an informed choice. Indirect contact would be beneficial if it were carefully planned and co-ordinated by the Social Work Department, the natural parents and the prospective adopters.

[50] Neither SM nor the appellant has consented to the making of the adoption order sought. Neither has the capacity to meet the child's needs. Both of them love the child and wish to have him returned to them eventually; but in the sheriff's view that would not be in the child's interests. If they were to attempt to obtain direct contact, that would adversely affect the child's placement and would not be in his interests.

[51] On these findings the sheriff has found in fact and law that SM has persistently failed, without reasonable excuse, to fulfil her parental responsibility to safeguard and promote the health, development and welfare of the child and that her consent to the freeing order should be dispensed with. He has further held that SM is unreasonably withholding her agreement to the making of an adoption order in respect of the child and that her consent to a freeing order should be dispensed with. He has held that the appellant too is unreasonably withholding his agreement to the making of an adoption order and that the appellant's consent to the freeing order should be dispensed with; that, regard being had to all the circumstances, the granting of the orders sought would safeguard and promote the welfare of the child throughout his life; and that it would be better for the child that the freeing order should be granted rather than refused, regard being had to all the circumstances and in particular the need to safeguard and promote the welfare of the child throughout his life.

[52] Towards the end of his Note, having concluded that it is better for the child that the order should be made than not made, the sheriff says "I was also satisfied in terms of section 6A that adoption is likely best to meet his needs, and that there is no better, practicable alternative." This last remark is the subject of a specific submission by counsel for the appellant.

Statutory provisions
[53] There is no dispute as to the sections that apply or as to what they mean. Section 6(1)(a) of the 1978 Act provides that in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration. Section 24(3) provides that in considering whether to make an adoption order or a freeing order 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.

[54] To prepare the way for adoption the court is empowered to make an order under section 18 of the 1978 Act freeing the child for adoption. An application for such an order is open only to an adoption agency which is a local authority. Where such an agency applies for a freeing order, the court shall make such an order where it is satisfied in the case of each parent or guardian of the child inter alia that his agreement to the making of an adoption order should be dispensed with on a ground specified in section 16(2) (s 18(1)(b)). No such agreement can be dispensed with 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 (s 18(3)). Among the grounds on which a parent's agreement can be dispensed with are that he is withholding agreement unreasonably (s 16(2)(b)) or has persistently failed, without reasonable cause, to fulfil one or other of certain specified parental responsibilities in relation to the child (s 16(2)(c)).

[55] This Division discussed these sections in West Lothian Council v McG (2002 SC 411). In that case I observed that the making of an adoption order results in the complete and irrevocable extinction of the legal relationship between the natural parent and the child and the creation of a new legal relationship between the adopters and the child (supra, at para [27]) and that the effect of a freeing order is almost as drastic as that of an adoption order itself since it removes from the parents their parental responsibilities and rights and transfers them to the local authority pending adoption (supra, at para [33]).

[56] Counsel for the appellant referred us to a provision that was not discussed in West Lothian Council v McG (supra), namely section 6A of the 1978 Act, (as added by the 1995 Act, s 96). It provides as follows:

"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."

[57] Counsel for the appellant has also referred to the Adoption Agencies (Scotland) Regulations 1996 (SI No 3266) (the 1996 Regulations) in support of the second ground of appeal. Regulation 8 provides, in brief, that an adoption agency such as the respondent shall not apply for a freeing order unless, inter alia, after considering all the information obtained in pursuance of that regulation, and having regard to the recommendation of the adoption panel under regulation 11 and all other circumstances, it has concluded, in accordance with section 6 and 6A of the 1978 Act, that adoption is likely to best meet the needs of the child and that the welfare of the child would best be met by the making of an application for a freeing order at that time, whether or not the child has been placed with a prospective adopter (reg 8(d)(ii)).

[58] Regulation 7(1) requires a local authority to appoint an adoption panel for the purpose of considering and advising on all matters specified in regulation 11. Regulation 11 provides inter alia that an adoption panel shall consider the case of every child referred to it by the adoption agency and shall make recommendations to the agency on whether adoption is in the best interests of a child; and, if the panel recommends that it is, whether an application for a freeing order should be made under section 18 of the 1978 Act (reg 11(1)(a)). Regulation 11(2)(a) provides inter alia that where making a recommendation under regulation 11(1)(a) whether adoption is in the best interests of the child, an adoption panel shall provide a written report of the consideration given by it to the alternatives to adoption before it came to that recommendation. Regulation 11(5) provides inter alia that in considering what recommendations to make, the panel shall have regard to the duties imposed on the adoption agency by sections 6, 6A and 7 of the 1978 Act. For the purposes of this appeal we need consider only sections 6 and 6A.

West Lothian Council v McG and its aftermath
[59] In West Lothian Council v McG (supra), a case with some similarities to this, we expressed concern about the disadvantageous position of the birth parent in proceedings for a freeing order by contrast with the position of the birth parent in adoption proceedings that have not been preceded by a freeing order. We pointed out that the court has no power to make a freeing order conditional on the birth parent's having a continued right of contact with the child and that one effect of a freeing order is that the birth parent is permanently deprived of the right to apply to the court for an order for contact with the child (1995 Act, s 11(3)(a)(iii); (4)(b)). When we decided that case, the Scottish Executive had already commissioned a review of adoption policy by an Adoption Policy Review Group. The aim of the review was to identify weaknesses within the adoption system and to suggest ways of modernising and improving it. The report of the first phase of the review was published in June 2002, one month after our decision.

[60] In the second phase, the Review Group considered a number of questions relating to contact with birth families with specific reference to West Lothian Council v McG (supra) and to the problems that we identified. On 10 June 2005 the Group delivered its final report and on 30 June 2005 the Scottish Executive published a Consultation Paper (Secure and Safe Homes for our most Vulnerable Children) explaining its response and its proposals.

[61] The Group recommends that conditions, including contact, should still be possible in adoption orders but that such conditions should remain exceptional; that matters such as contact should generally be dealt with alongside the adoption order, and that the current prohibition on parents applying for contact under section 11 of the 1995 Act should be removed (Rec 17, para 4.14). The Scottish Executive supports this recommendation and proposes to implement it through legislation (Consultation Paper, p 21).

[62] However, the Group goes further in recommending that section 11 should be amended as a matter of urgency to remove the restriction that prevents those who have lost parental responsibilities and rights through adoption or freeing from applying for contact. To protect adoptive families from inappropriate or vexatious applications, it recommends that any application for a contact order under section 11 in these circumstances should be allowed only with the leave of the court (Rec 18; paras 4.16, 4.18). The Scottish Executive rejects this recommendation. It plans to promote early legislation on all of the Group's recommendations thereby avoiding the need for separate legislation on this point (Consultation Paper, p 22).

[63] The Group also recommends that the procedure of freeing should be abolished, but that there should be a pre-adoption order to preserve the current advantages of freeing (Rec 19; para 5.7). It proposes that freeing should be replaced by a new Permanence Order (Recs 21 -25; paras 5.14, 5.22, 5.24, 5.28, 5.29). The Executive supports these recommendations and proposes to implement them.

[64] In this appeal, as in West Lothian Council v McG, the disadvantages affecting a birth parent in relation to a freeing order constitute a central consideration in the appellant's withholding of consent. The appellant has also taken a human rights point, based on that consideration, that we held to be inapplicable in that case.

The present appeal
[65] There are five grounds of appeal, namely (1) that the sheriff erred in failing to dismiss the petition on the grounds of delay, the delay being such as to infringe the appellant's rights under article 6 of the Convention; (2) that the sheriff erred in law in failing to dismiss the petition on the ground of breach of statutory duty by the respondent in respect of its failure to comply with section 6A of the 1978 Act; (3) that the sheriff erred in law in concluding that the appellant was unreasonably withholding his consent to adoption in terms of section 16(2)(b); (4) that the sheriff erred in law in the manner in which he exercised his discretion to dispense with the appellant's agreement to the freeing order in terms of section 16(1)(b)(ii), and (5) that, in any event, section 18 of the 1978 Act and section 11(4) of the 1995 Act, in failing to provide for contact and other related orders in favour of the natural parent, are incompatible with the appellant's rights and those of the child under articles 6 and 8 of the Convention and that both provisions should be the subject of a declaration of incompatibility.

Submissions for the parties on grounds 1 to 4

Ground 1
[66] Counsel for the appellant submitted that there had been undue delay in the disposal of this case, and in particular in the delay between the marking of the appeal and the interlocutor disposing of it. The delay was unjustified (H v United Kingdom, (1987) 10 EHRR 95). It had prejudiced the appellant by reinforcing the status quo under which the prospective adopters had custody of the child and the appellant and SM were excluded from contact. The respondent need not have appealed. At that time it was eminently possible that contact would have been found to be in the best interests of the child. The respondent did not consider the possibility that the child could be returned at that stage to the care of the appellant alone. The respondent had other options. It could have supported a direct adoption petition by the prospective adopters at any time after November 2002. In such a process the court could have imposed a contact condition in favour of the appellant (1978 Act, s 12(6)). The respondent could have supported the adopters in an application for a parental responsibilities order under section 88(1) and (2) of the 1995 Act. Such an order would not have excluded the appellant from contact. The respondent could have advised the prospective adopters to apply for a residence order under section 11 of the 1995 Act or could itself have applied for a parental responsibilities order under section 88(2) of the 1995 Act.

[67] The appellant accepted that the child should remain with the prospective adopters; but he had been the child's primary carer from birth to age thirteen months and should not be deprived of any part in the child's life. That was an aspect of the child's welfare that section 6 of the 1978 Act sought to promote. Adoption agencies should be discouraged from causing delay by means such as these and then relying upon the consequences of it. It was in the public interest that the child's welfare should be preserved by dismissal of the application. In contrast, the benefit to the respondent was negligible.

[68] Counsel for the respondent submitted that the respondent had acted reasonably in appealing against the first decision. By then, all contact between the child and his parents had ceased. The children's hearing, having in 2000 recommended against freeing for adoption, had decided in October 2001 to advise the sheriff that the child should be freed. By then, rehabilitation of the parents had broken down. A contact condition was rarely imposed in an adoption order (B v C, 1996 SLT 1370). Sheriff McCulloch had decided that contact would be against the child's interests. The first three options proposed by the appellant would have brought the parents into conflict with the prospective adopters. The fourth would have achieved nothing. Contact would have remained an issue and the child would have remained in the children's hearing system and subject to the parents' right to demand three-monthly reviews of the case.