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Cite as: [2008] CSOH 180, [2008] ScotCS CSOH_180

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 180

OPINION OF

LADY CLARK OF CALTON

in the Petitions of

MR and MRS L V

Petitioners;

For

An Adoption Order under the Adoption (Scotland) Act 1978 in respect of

T and N.

_______________

Petitioners: Scott QC; Digby Brown

First Respondent: Ennis; Morisons LLP

Second Respondent: Howden; Wilson Terris & Co, SSC

17 December 2008

Introduction

[1] I heard evidence which, of consent, was accepted as evidence in respect of two petitions at the instance of the petitioners. The petitioners are husband and wife and are foster parents of the children who are the subjects of the petitions. The petitioners sought in the first petition an adoption order in respect of child T (born 11 March 2002) and in the second petition, an adoption order in respect of child N (born 22 April 2003). The productions referred to in this Opinion are numbered according to the process numbers in the first petition. Equivalent productions exist in the second petition process but are not referred to separately. I heard evidence and submissions over eleven days in October 2008. There were thousands of pages of productions, many reports and a complex history of disputed issues over a number of years involving the petitioners, the respondents and the social workers employed by X, the responsible local authority.

[2] The children T and N who are both boys are the children of the first and second respondents who opposed the adoption. In the event of adoption, they both sought a condition of indirect contact. They did not seek direct contact. The first respondent is the children's mother, aged 23 years. The second respondent is the children's father, aged 32 years. He was granted parental rights and responsibilities in respect of T and N. The first and second respondents are partners who live together. They are not married.

[3] When the case came before me on the first day of the proof, there were a number of outstanding matters. Most significantly, there was a disputed motion in which the respondents sought the authority of the Court for their expert, Professor McKay, to interview the children. This was opposed by senior counsel for the petitioners mainly on the basis of alleged distress and harm to the children. I was of the opinion that interview by an experienced psychologist in neutral surroundings would be unlikely to cause any significant harm. I also wished to have the opinion of Professor McKay to assist me in considering the issues and long term welfare of the children. I therefore granted the motion on behalf of the respondents. It was unfortunate that this issue was not resolved until such a late date in the proceedings. The delay did have an important effect on the course of the proof as I explain in paragraph 4 . I also noted that the curator, for the reasons explained in her report, dated 17 April 2008 (9 of process) had not obtained the views of the children T and N. I ordered a supplementary report from the curator in respect of this. The supplementary report is dated 11 October 2008. I expressed my concern about the number and lateness of the lodging of some of the productions. Motions for late productions, late affidavits and to hear evidence from a new witness occurred during the proof. In view of the nature of the proceedings, I granted these motions. I was concerned about the apparent lack of focus in relation to the issues disputed by the parties and relevant to the petitions. Counsel for the parties had agreed certain matters and attempted to limit the issues in dispute but it was still not clear to me what facts and issues were disputed. Counsel for the respondents had also attempted to prevent unnecessary overlap in their positions by agreeing, in so far as possible, a joint approach to certain witnesses which could be adopted by counsel for the other respondent. Counsel had also taken advantage of the opportunity to lodge affidavit evidence. At my request, counsel for the parties produced on the second day of the proof statements of issues in an attempt to further focus the case. I am grateful to counsel for their efforts. Nevertheless, I consider that this is the type of case which should be case managed by a single judge from the earliest procedural stage in order to ensure that time and expense are minimised and that the issues are focussed and relevant.

[4] For the first four days of the proof, the main thrust of the evidence related to the issue of the adoption of T and N. Witnesses were led and cross-examined mainly in relation to this aspect of the case. That changed on day five. By that date, Professor McKay, the expert instructed on behalf of the respondents, following my interlocutor dated 8 October 2008 had interviewed the children T and N. He had prepared a second supplementary report (40/4 of process). He had consulted with counsel for the respondents. As it later emerged in evidence, Professor McKay concluded, at page 12, that it was his opinion that adoption is in the best interests of the children, T and N. He said that it was his view "that to state that adoption is in the children's best interests is an inescapable conclusion in this case, and indeed that no competent child psychologist would be able to reach an alternative conclusion on this point." Counsel for the respondents, having received this supplementary opinion, consulted with the respondents and obtained further instructions. I was informed that neither respondent consented to the granting of the adoption order but, on instruction, counsel did not intend to lead evidence or challenge evidence about the principle of adoption or whether or not it was in the best interests of the children to be adopted by the petitioners. The respondents left the issue of adoption to the decision of the Court.

[5] The petitioners and respondents remained in dispute about whether there should be a condition attached to each adoption order in terms of section 12(6) of the Adoption (Scotland) Act 1978 in relation to indirect contact. The respondents had always sought indirect contact in the event of adoption being granted. But as at day five of the proof none of the parties had detailed the issues in dispute in relation to indirect contact. I asked counsel for the parties to discuss this and focus the disputed issues insofar as possible. As a result of this, three documents were lodged on day six, namely 48, 49 and 50 of process representing the positions of the second and first respondents and the petitioners respectively. From day six of the proof, the focus of the proof shifted and much of the remaining evidence related to issues about the management, frequency and form of indirect contact and whether a condition should be attached to the adoption orders. I have considered all the evidence. I have attempted to give an overview of the evidence and refer to issues which were disputed.

The Petitions

[6] Each petition specifies various formal matters, in paragraphs (1) to (12) and in paragraphs (14) to (20) and (22). These matters were not in dispute. The issues which were originally in dispute in the petition related to paragraphs (13) of each petition. In short summary these issues related to the allegation that the respondents have persistently failed without reasonable cause to fulfil their parental responsibilities to safeguard and promote the child's health, development and welfare in terms of section 16(2)(c) of the Adoption (Scotland) Act 1978 and are withholding their agreement unreasonably in terms of section 16(2)(b) of said Act.

Agreed Facts

[7] Counsel for the parties entered into a Joint Minute of Admissions (43 of process) in which it was agreed that the respondents up to and including 4 October 2005 persistently failed without reasonable cause to fulfil their parental responsibilities to safeguard and promote the health, development and welfare of T and N in terms of section 16(2)(c)(1) of the Adoption (Scotland) Act 1978.

[8] It was also agreed that the Statement of Fact in the grounds of referral to the children's hearing established at D Sheriff Court on 22 April 2004 (No 6/7/20-23 of process) and at B Sheriff Court on 14 November 2005 (6/7/84-87 of process) are true and accurate. In short summary these Productions 6/7/20-23 narrate a history of numerous house moves with the respondents becoming involved in arguments with friends, neighbours and figures in authority; difficulties with extended family resulting in problems for the children including lack of stimulation, fresh air and exercise; the frequent exposure of the children to scenes of high tension and aggressive argument within the family home which on occasions required the attendance of the police and a number of specific occasions are detailed; difficulties for the respondents in managing finances with problems about being able to provide basic essentials for the children on occasion; a lack of distress on the part of the children when removed from the family home and a lifestyle of the respondents which is not conducive to the well-being of the children. Productions 6/7/84-87 of process in short summary, narrate that the second respondent rejoined the first respondent and children following his release from a custodial sentence in April 2005 and at that time the respondents co-operated with the social work services offered; after August 2005 there was a serious deterioration in the respondents' relationship and numerous incidents in the family home which required police and social work involvement because of the violence and aggression between the respondents, most of which were witnessed by N and T; specific incidents are detailed on 8 and 15 August and 4 October 2005; following the incident on 4 October 2005 both children were taken to hospital to be medically examined; the second respondent's drinking was identified as a factor which has a negative impact on the family and the respondents' relationship; The children were observed to copy the respondents' violent behaviour; the respondents were provided with a significant amount of support and advice to improve their relationship and their parenting but appeared to be unable or unwilling to achieve and maintain an acceptable level of stability in their relationship or to provide appropriate parenting for the children in relation to ensuring safety, guidance and emotional stability; the children's health and development are likely to be adversely affected by their exposure to the hostility and aggression between the respondents and their exposure to hazards within the family home.

[9] The Joint Minute agreed that 6/8 of process are accurate criminal records and records of appearances before the criminal courts of the respondents and that they contain an accurate record of the findings and convictions to which they relate. The Joint Minute also referred to various documents in process and agreed that they were accurate copies of records. The Joint Minute did not agree that the contents of these documents were true and accurate.

[10] The Joint Minute also agreed a chronology of events that the parties agreed occurred on the dates mentioned therein and in the terms set out in the Joint Minute. This chronology refers to certain dates and events between 5 March 2002 and 10 March 2008. It provides an important agreed factual background to some of the incidents which affected T and N in their early years and led to compulsory measures of care. It also reflects to some extent the history of the respondents, of social work involvement and various children's hearings and court proceedings.

[11] In order to preserve anonymity, I have made certain minor changes to the agreed chronology. The first respondent is referred to as "L" and the second respondent is referred to as "Z". The reference to CPO is a reference to a child protection order made by the sheriff under the Children (Scotland) Act 1995, section 57 or the children's hearing under section 66. LCA is a reference to "looked after" children as defined in the Children (Scotland) Act 1995, section 17(6). The chronology provides as follows:

1	5 March 2002	T born
2	20 March 2002	Police called to incident when Z alleged to have pushed L and her mother, T present. Z had been drinking.
3	27 June 2002	Z assaulted L when she went to Women's Refuge, he was detained in custody. T referred to Reporter, who decided no further action required. Couple reconciled.
4	19 August 2002	L called the police during domestic disturbance involving Z when T at home.
5	25 September 2002	Z called police alleging L throwing stones. L alleged Z had assaulted her. T at home.
6	14 November 2002	Z sentenced to 5 months in prison for driving while disqualified, disqualified from driving for 5 years, also 3 months in prison for assault and 1 month for breach of the peace.
7	16 February 2003	Z assaulted L. She was taken to hospital. Z sentenced to 6 months in prison. In custody was counselled for alcohol addiction, personal relationships, childhood trauma and anger. T referred to Reporter.
8	22 April 2003	N born
9	5 June 2003	T name placed on Child Protection Register in NE Scotland.
10	21 June 2003	Emergency accommodation sought.
11	14 August 2003	T and L moved to M. Housed in temporary accommodation.
12	24 August 2003	Z and L asked for assistance from emergency duty team
13	8 September 2003	Z and L asked for assistance from emergency duty team, requested food parcel.
14	15 September 2003	T and N's names placed on Child Protection Register
15	20 September 2003	C police called to domestic argument between Z and L.
16	21 September 2003	C police called to further domestic argument between Z and L.
17	28 September 2003	L asked for assistance from emergency duty team, requested money for nappies and milk.
18	11 October 2003	Z asked for assistance from emergency duty team reporting problems in relationship with L.
19	31 October 2003	M social work records indicated domestic violence and nuisance. Z evicted, L left with Z and family returned to M.
20	17 November 2003	Child Protection Case Conference in M. Both children's names on Child Protection Register in NE Scotland.
21	8/9 December 2003	Neighbours reported disturbance at family home to police. Z had thrown children's Christmas presents out of the house while drunk. Accepted as true by respondents.
22	19 December 2003	Police reported that L reported that Z and his brother were fighting, police attended and found Z with head/face covered in blood. Accepted as true by respondents.
23	20 December 2003	Police report that Z found drunk and incapable.
24	29 December 2003	Police attended, L and Z arguing, L threatening to leave and take children. Accepted as true by respondents.
25	11 January 2004	L reported to police that windows at family home had been smashed. Accepted as true by respondents.
26	13 January 2004	Child protection case conference in M Children placed on Child Protection Register in H.
27	2 February 2004	Z and L advised social work that they had argued and L had cut her wrists and arms. Children were present. Accepted as true by respondents.
28	13 February 2004	Family move from E to El
29	7 March 2004	Family return to E
30	9 March 2004	H Council sought CPO's, as concerns over levels of domestic violence and Z's anger and alcohol problems. Orders granted by Sheriff at T. Children placed with foster carers.
31	11 March 2004	Children's hearing concerned about unstable environment and violent outbursts between parents.
32	23 March 2004	H Council decide to remove children's names from Child Protection Register. Z and L's parenting skills to be assessed.
33	30 March 2004	Z fined for breach of the peace
34	22 April 2004	Parents accept grounds of referral to children's hearing
35	18 May 2004	Children's hearing made supervision requirements with a condition of residence with foster carers. Contact increased to allow return to parents.
36	31 May 2004	Z fined for breach of the peace with bail aggravation, with 14 days imprisonment in lieu.
37	23 June 2004	LAC Review recommended rehabilitation.
38	20 July 2004	Z fined for breach of the peace with bail aggravation.
39	10 September 2004	LAC Review parents asked for reduced contact. Recommended alcohol and relationship counselling. Children moved to foster carers in Fort William
40	26 October 2004	Children's hearing, children to stay with carers.
41	15 November 2004	Children's hearing, children to stay with carers, respondents homeless.
42	22 November 2004	Z sentenced to 4 months in prison for carrying offensive weapon, 4 months for assault and 3 months for cruelty to an animal.
43	6 December 2004	Children's hearing, children to stay with carers, respondents still homeless, but expect a lease by 20 December
44	13 December 2004	Z appears before Sheriff and is admonished for assault with bail aggravation.
45	20 December 2004	L moves to B
46	22 December 2004	Children's hearing vary supervision requirement and children are returned to L on supervision. Z in prison.
47	23 December 2004	Z sentenced to 30 days in prison in respect of two breaches of the peace.
48	24 January 2005	Case transferred to B
49	22 February 2005	Children's hearing transfer case to X
50	6 April 2005	Z released and joined family in B.
51	27 April 2005	Children's hearing review, progress being made.
52	12 May 2005	L maintained everything fine and she did not need social work support
53	26 May 2005	L said she found boy's behaviour difficult, T getting up and "wrecking house", boys fighting.
54	8 August 2005	Incidents of conflict between L and Z, some police involvement.
55	15 August 2005	Arguments between Z and L in presence of social workers Iain and Julie. L requested that T and N be accommodated by the Council for 3 days. Boys were difficult to manage.
56	22 August 2005	SW visit, home more settled. L and Z reported had signed S 4 agreement. Parenting sessions with Capability Scotland planned.
57	30 August 2005	Parental rights agreements under s 4 of Children (Scotland) Act 1995 registered in Books of Council and Session.
58	31 August 2005	Supervision requirement continued with conditions that Family Support worker to visit, T to attend nursery regularly and N to attend sessions at B Family Centre. Hearing concerned about boys' "extreme behaviour".
59	19 September 2005	L and Z argue in presence of social work staff. N slammed doors and threw toys. T had bitten N seven times. L had taken N to the doctor.
60	24/25 September 2005	Z drinking, police called to family home. Social workers advise parents that they are seriously concerned about effect of parents' behaviour on children.
61	4 October 2005	CPO, T and N found unsupervised in circumstances of risk. Placed with separate carers.
62	6 October 2005	CPO continued by hearing Contact agreement with parents.
63	13 October 2005	Z's behaviour at GP surgery led to him being charged with breach of the peace.
64	14 October 2005	CPO further continued. Concern over alcohol misuse, relationships and parenting skills. Twice weekly contact at B Family Centre.
65	17 October 2005	Z and L argued in social work office.
66	4 November 2005	CPO further continued. See report
67	8 November 2005	Z verbally aggressive on telephone to social worker, also shouting as L spoke on telephone.
68	8 November 2005	Child protection case conference.
69	14 November 2005	Grounds established B Sheriff Court. Parents accepted grounds.
70	22 November 2005	Capability Scotland recommends that L and Z attend parenting programme.
71	23 November 2005	Children's hearing made supervision requirement
72	25 November 2005	Foster carers for each of T and N reported deterioration in behaviour. Contact thereafter supervised.
73	5 December 2005	Z and L started Mellow Parenting Programme.
74	13 December 2005	L and Z requested change of social workers
75	5 January 2006	Police called to Family Centre to escort parents out of building. Contact suspended. Z telephoned social worker, during which call Z made threatening remarks in relation to T's foster carer. Charged with breach of the peace and sending a menacing message contrary to Communications Act 2003, s 127(1)(a) - see 13 June 2006.
76	10 January 2006	Z appeared before Sheriff in B in respect of breach of peace with bail aggravation, sentence deferred and then fined.
77	10 January 2006	Child protection case conference.
78	24 January 2006	Z charged with further breach of the peace following incident at social work office. Social work advise that two members of staff will be present at any future interview.
79	8 February 2006	Child Protection case conference. Children's names to remain on child protection agency.
80	14 February 2006	L and Z drunk and contact could not proceed. Z wanted contact, L decided not to attend.
81	15 February 2006	LAC review - lengthy reports and minutes prepared. Parents did not attend LAC review.
82	15 March 2006	Children's hearing. See safeguarder's report. See social work report. Hearing set out conditions for rehabilitation. Parents acknowledged need to co-operate with various agencies. Advised that a decision on longer-term care will be necessary if no progress in their ability to care for the children.
83	17 March 2006	Meeting with Z and L. New contact agreement. Parenting sessions to recommence. Z to be referred for assistance with anger management. Assessments to be carried out.
84	19 March 2006	L attended at B police office alleging that Z had assaulted her.
85	3 April 2006	Z and L complain to Grampian Police that T has bruises. Foster carers say he fell off his bike.
86	11 April 2006	Z granted bail at B Sheriff Court on condition that he did not initiate contact with X social work department or B Family Centre
87	21 April 2006	T's foster placement has broken down. T moved to petitioners.
88	26 April 2006	Children's hearing vary T's supervision requirement. Long-term plans for T to be discussed on 28 June.
89	8 May 2006	Meeting with L and Z. Social workers advised that should be considering permanency options.
90	18 May 2006	Z arrested for assault on L.
91	30 May 2006	Reports on outcome of Mellow Parenting Programme.
92	13 June 2006	Z placed on probation for 12 months, with total of 180 hours unpaid work for breach of peace (with bail aggravation) and separate breach of conditions of bail, also separate breach of peace and sending a menacing message contrary to Communications Act 2003, s 127(1)(a)
93	15 June 2006	Z and L involved in incident, police attended. Z and L warned
94	19 June 2006	Report on Family Assessment
95	20 June 2006	LAC review. Four week assessment agreed, for Z and L to demonstrate that rehabilitation is a realistic option.
96	21 June 2006	Contact agreement signed for 4 week assessment.
97	28 June 2006	Children's hearing. N to join T at petitioner's home. Parents working with social work on extensive programme.
98	3 July 2006	N joins T with petitioner's
99	31 July 2006	Report on Contact Assessment.
100	31 July 2006	Report on assessment of attachment and bonding.
101	31 July 2006	Report on permanency options.
102	11 August 2006	Z remanded in custody following incident with knife.
103	22 August 2006	LAC review decided attempts at rehabilitation exhausted. Two family members to be considered which failing the boys' future should be secured through adoption.
104	12 September 2006	Z received 6 month custodial sentence for assault and having a knife in a public place.
105	15 September 2006	Contact cancelled
106	22September 2006	Contact rescheduled.
107	27 September 2006	Children's hearing continued for more information
108	29 September 2006	Contact resumed.
109	6 October 2006	Z writes from prison in relation to contact.
110	18 October 2006	Children's hearing. Boys could not be returned to parents as neither can provide the care and stability they need. Contact decreased to monthly.
111	3 November 2006	Social worker reports to L on problems with boys' behaviour before and after contact.
112	6 November 2006	Foster carer's profile on boys completed.
113	13 November 2006	Z released from prison
114	8 December 2006	Z bailed by Sheriff in B on condition that he did not approach M and K.
115	18 December 2006	Contact cancelled pending children's hearing.
116	27 December 2006	Z placed on probation for 9 months in respect of breach of the peace with bail aggravation.
117	3 January 2007	Children's hearing decided contact should be terminated, parents appealed.
118	11 January 2007	Adoption Panel recommended adoption
119	22 January 2007	Z appeared before Sheriff in B in respect of offence of theft, sentence deferred.
120	23 January 2007	L fined £200 for assault on police with bail aggravation with 28 days Supervised Attendance Order in default.
121	23 February 2007	Social work linking meeting recommend that the petitioners as a suitable match for T and N and agree this should be considered by the Adoption and Fostering Panel.
122	15 March 2007	Sheriff hears evidence, leading to him allowing parents' appeal against hearing decision of 3 January 2007.
123	15 March 2007	Adoption Panel recommended that petitioners be approved as prospective adopters and be matched with children.
124	20 March 2007	Children's hearing appointed as safeguarder
125	29 March 2007	LAC review. Children to remain with petitioners until long-term care through adoption can be pursued.
126	17 May 2007	L sought advice from Housing Dept about getting Z out of the house.
127	20 June 2007	Children's hearing decided to reinstate contact on monthly basis and were opposed to adoption plan. Petitioners appealed.
128	18 July 2007	Local authority decision-maker writes to Reporter to Children's hearing.
129	30 July 2007	Petitioners' appeal against children's hearing decision of 20 June refused.
130	7 August 2007	AW, BAAF Family Placement Consultant drafted Report in respect of T & N.
131	16 August 2007	Children's hearing decided not to reinstate contact, and supported long-term plans that boys should continue to be placed with the petitioners with a view to adoption. Parents appealed.
132	9 October 2007	Z appeared before sheriff in B in connection with alleged breach of peace on 24 December 2006. L appeared before sheriff in B in connection with alleged breach of the peace on 18 April 2007.
133	5 December 2007	Sheriff allowed parents' appeal and remitted to children's hearing. Petitioners appealed to the Court of Session. Appeal now abandoned as hearing's decision superseded.
134	27 February 2008	Children's hearing supported adoption and decided that contact should be restricted to letterbox. Respondents appealed.
135	10 March 2008-11-06	Social work letter to Z and L in relation to life story work and letterbox contact.

Affidavits and oral evidence on behalf of the petitioners

[12] Counsel for the petitioners relied on a number of affidavits from witnesses who were not called by any party and not cross-examined. These affidavits included:

(a) Lesley M (affidavit 38 of process). She is a social worker who was involved with the respondents and children from August 2002. Her last report to a Child Protection case conference was 13 January 2004. She stated that the records 6/9 of process are a true and accurate account of events which took place while the family lived in the M area of Scotland. This covered two periods, March 2002 to August 2003 and October 2003 to January 2004.

(b) Ann B (affidavit 52 of process). She is a social worker, who dealt with the respondents and their children during a period when they resided in England from August 2003 to about October 2003. She confirms that copy documents 6/10-1 to 8 and 6/10-42 to 79 of process are an accurate record of events which occurred.

(c) Margaret C (affidavit 33 of process). She is a social worker with H council in Scotland. She was appointed a key worker following a child protection case conference on 13 January 2004 when T and N were placed on the child protection register under the category of physical injury with the secondary categories of emotional abuse and physical neglect. The copy documents 6/4 and 6/12-1 of process are described as a true records of events at the time.

(d) Barbara R (affidavit 31 of process). She is a social worker employed by X local authority. In 2007 she became the social worker of T and N. She stated that in March 2007, the respondents wished to give presents to the children. Terms could not be agreed about how this was to be done. She did not support the decision of the Children's hearing on 20 June 2007 to reinstate monthly contact between the children and respondents. She had difficulties with the attitude and behaviour of the second respondent. She supported the petitioners' care of N and T. She was critical of the attitude of the respondents to letterbox contact approved by the children's hearings. She understood that the respondents did expect to have written contact direct with the children.

(e) Laurence S (affidavit 30 of process). He is a social worker employed by X local authority. He met the respondents on at least five occasions and sometimes at hearings and at court. The meetings were difficult because of the respondents' extreme disagreement with the adoption and contact plans for the children. He was concerned at their level of aggression and substance misuse. Further information was obtained from the clinic treating the respondents. Talking about the procedure, he said the case had become very complicated. He spoke to a children's hearing on 22 February 2008 when he said that the respondents had displayed aggression. He considered that direct contact by the respondents would undermine the security of the children. He said that the respondents acted extremely hostile to the petitioners and to the notion of adoption. The respondents had said that they would accept nothing other than the return of the children to their care. He said that letterbox contact through X local authority was available but the respondents would not engage in discussions as to how this could be achieved for all involved.

(f) Jill C (affidavit 29 of process). She is a social worker employed by X local authority and was allocated to the petitioners in 2006 as the family placement social worker. She described the improvement in the behaviour of T and N in the home of the petitioners and the commitment of the petitioners to them.

(g) Una S (affidavit 25 of process). She is a friend of the petitioners who described the improvement of T and N in the petitioners' care. She said that the children are happy and well settled in their care.

(h) Donna M (affidavit 28 of process). She is a friend of the petitioners. She described the behavioural problems of the children in the early stages of their foster care with the petitioners followed by a great improvement in their behaviour. She stated that the children are now well settled and part of the family unit of the petitioners.

[13] In addition the following witnesses adopted their affidavit evidence-in-chief namely, Fay McD (32 of process), Sheila R (27 of process), Kathleen S (22 of process), Iain J (23 of process), Heather C (26 of process), Head Teacher (37 of process) and Kristin D (24 of process). With the exception of the evidence of Kristin D, the aforesaid witnesses were cross-examined on behalf of the respondents. I understand from counsel for the respondents that the cross-examination was directed mainly to the merits of the petitions. The evidence of Kristin D was part heard only in chief on day 4. Because of the change in the respondents' instructions on day 5, no further evidence was led from Kristin D in chief. Counsel for the respondents did not seek to cross-examine this witness.

[14] Fay McD (affidavit 32 of process), is a social worker and qualified nursery nurse employed by X local authority. Her evidence mainly related to supervision of contact between the respondents and the children at a family centre. She accepted that the respondents established and maintained a good working relationship with the family support worker. She described the attempts made to assist the respondents with parenting skills. She said that during the early visits up to October 2005, the second respondent was very receptive and listened to advice regarding his parenting skills but his behaviour could be agitated, argumentative, unpredictable and challenging on many occasions. There were disputes between the respondents. She also described the history and results of the parenting programme undertaken by the respondents. Some examples of problems in contact were narrated. They were periods such as in April 2006 when the respondents were hostile to social work involvement. Contact ended on 27 November 2006 "due to a level or distress displayed by both boys". She prepared the Form E reports for the Adoption and Fostering Panel along with Miss D.

[15] Sheila R (affidavit 27 of process). She is a social worker employed by X local authority and team manager of the Children and Families Team. She described social work assistance offered to the respondents from about January 2005. She personally witnessed some conflict situations and the effect on the children particularly on 8 August 2005. She described problems between the second respondent and the then foster carer (not the petitioners). She described some incidents of hostile behaviour involving social work staff. She was also involved in an incident on 18 October 2006 involving herself and the first respondent following which the first respondent was charged with breach of the peace. There was concern about the level of distress being displayed by the children by December 2006 and that resulted in contact being suspended. Throughout this period there were concerns about the respondents' parenting skills, the impact of the second respondent's use of alcohol and the ongoing issues of verbal and physical violence between the respondents.

[16] Iain J (affidavit 23 of process). He is a social worker employed by X local authority in the Children and Families Team. He first became involved in August 2005 when there were a series of incidents of conflict and verbal aggression between the respondents, some of which resulted in police involvement. He described a number of incidents up to 4 October 2005. He stated that after the children were accommodated with separate foster carers the respondents attended every session of contact and generally appeared well motivated as far as contact was concerned. There were still many difficulties including the respondents' attitude to social workers, parenting skills, the second respondent's alcohol use and the respondents' relationship. Attempts were made during December 2005 and May 2006 to give parental training and support in a parenting programme. The second respondent did not regularly attend alcohol counselling services and the respondents' relationship continued to be volatile including separation in February 2006. He prepared a number of reports listed in the affidavit during this period.

[17] Heather C (affidavit 26 of process). She described the children's behaviour at her nursery in about the Autumn of 2006. The children displayed difficult behaviour. The behaviour was at its worst after contact with the respondents. The children talked about the petitioners but not about the respondents.

[18] The head teacher of the school attended by the children (affidavit 37 of process). She explained that T had been referred to the school educational psychologist regarding some problems including concentration levels. The school and the petitioners worked together to exchange information to assist T. She described his good progress. She stated that N had joined the school in about August 2008 and had settled in very well. The children are very close. She spoke highly of the care given to the children by the petitioners. She accepted that the children had been enrolled by the petitioners under the petitioners' name but she was aware that the children were in the petitioners' care as a foster placement. That had all been discussed before the children came to the school.

[19] Kristin D (affidavit 24). She is a social worker employed by X local authority. She first became involved with the respondents and the children in April 2005. She spoke to the poor condition of the house in October 2005, and the incident involving the removal of the children from the house and their examination in hospital which led to the child protection orders. She was involved in the preparation of various reports and assessments described in the affidavit. She described a little progress but continuing significant concerns about the abilities of the respondents. Despite additional social work support, there were concerns that the respondents lacked consistent, effective or sustained parenting which resulted in the children being placed at physical risk and negatively impacted on their emotional well-being. There were concerns about the children's secure attachment to the respondents. T was placed with the petitioners on 21 April 2006 and N was placed there on 3 July 2006. She was favourably impressed by the care of the children by the petitioners and the improvement in the children's behaviour. She was involved in facilitating contact thereafter between the children and the respondents and spoke to some of the difficulties following contact. She said the second respondent was in custody from August to November 2006. She gave detailed information about the difficulties up to December 2006 when the second respondent was arrested for a domestic incident and was remanded in custody over the Christmas period. She described the difficulties she had in dealing with the respondents who she said were capable of being extremely aggressive and threatening. She claimed that she feared that she was at risk of being assaulted and she would not have interviewed either of the respondents on her own. She considered that the petitioners had suffered great difficulties as the result of the behaviour of the respondents but continued to show "huge commitment" to caring for the children.

[20] Two further witnesses were called on behalf of the petitioners, namely Alison Wilson and the first petitioner. These witnesses were cross-examined and I deal with the evidence below. The evidence mainly relates to indirect contact and I summarise the main issues dealt with in that evidence.

[21] Alison Wilson, spoke to her report of 7 August 2006 (6/13 of process). She explained that she held a certificate of qualification in social work for 31 years and a BA(Hons) Degree in applied social sciences. She has been extensively engaged in the assessment and support of all parties involved in the adoption and fostering triangle for the last 24 years. The British Association for Adoption and Fostering, with whom she is child placement consultant, was approached by X local authority to review the local authority's actions in relation to the decision to terminate direct contact between the respondents and T and N and the decision to place T and N for adoption. She gave evidence about the basis on which her report was prepared under reference to paragraph 6 of the report. Her report deals with wider issues but her oral evidence dealt mainly with indirect contact.

[22] She accepted that in 2006 the respondents were concerned about the lack of direct contact with their children and a reported conversation by T expressing the view that they were dead. She explained the development in adoption practice of indirect contact often called "letterbox contact". Since the 1980s there had been feedback from adult adoptees who had expressed some general bewilderment as a result of cutting off all links with their birth families. From research, there was now a greater understanding of the need for children to make sense of their lives. Both the adoptive parents and the birth parents should understand the importance of this. It is a difficult task. It is important to celebrate the things that are good and the good parts of the children inherited from the birth parents. It is important that the adoptive parents have some understanding of people's difficult circumstances and convey a positive message to the children about the birth parents. She accepted that it was difficult for the birth parents, particularly if they had been "fighting to the death" to keep their children. She said that such birth parents can turn a corner and see their role as supportive. This aids the task of the children and enables the children to accept their situation. It was a superhuman effort for most birth parents to arrive at such a position and they needed support to do that. Sometimes birth parents retreated from indirect contact because it was so painful. Her experience was that birth parents were more likely to retreat than adoptive parents. She was familiar with the X letterbox scheme described in 6/24 of process. She accepted that ideally there would be someone trusted to set up the process of letterbox contact. It was for the adopters to choose when to communicate the information at the right age and circumstances for the children. The children should know that the adoptive parents will give out information from the birth parents to them. The adoptive parents should be empowered and trusted and have the final say. She was opposed to placing a condition of indirect contact on the adoption order. She thought that was counter-intuitive and against the interests of the adoptive parents. Compulsion does not work well and militates against consensus. Contact should not be another occasion for controversy.

[23] In discussing particular details of contact she emphasised that contact is a process between adults. Nevertheless, children as they become older may show sensitive and sometimes aggressive feelings to the exchange of information. She was familiar with such reactions. She approved the exchange of photographs provided there was no identifying features such as school uniform. In relation to the petitioners' memorandum about indirect contact (50 of process), she accepted that she had discussed this and had input into that document. She thought that contact once a year in August was the appropriate time and frequency. It avoided emotional times such as Christmas and birthdays. She recognised the emotional difficulties for adoptive parents and thought it was incredibly difficult for them. The process of indirect contact also recognised that at some stage a child may wish to meet a birth parent and that could cause difficulties which might require professional help.

[24] In discussing the imposition of conditions, she emphasised the importance of leaving the adoptive parents, not the birth parents, "in the driving seat". She said a condition is "borne out of the wrong impulse". She had never encountered a case with a condition in an adoption order except in one unusual case. She thought that it was extremely rare for courts to make such an order and there had been only a few such cases over the last few years. She considered that it may open the door to further litigation and she was against that.

[25] In relation to Professor McKay's report (40/4 of process) she was generally supportive of his views. She was unclear what he meant by "minimalist" in relation to indirect contact. She did not think once a year was only a token contact or minimal. She considered that Professor McKay's report was helpful and objective and weighed up the implications for the children. She said he had kept the children at the heart of the process and showed understanding of the wider implications of adoption.

[26] In cross-examination, she explained her original remit in preparing her report. Subsequently she assumed the role as an expert witness instructed on behalf of the petitioners. She did not see her role as directly advising the petitioners but accepted that she had given expert input into the memorandum (50 of process). She had offered support and guidance when asked. She saw her role as independent. Both the petitioners and the children had separate social workers. She did not think the respondents had utilised the social work support which had been offered. She accepted that there was not a good level of trust between the respondents and social workers. She also accepted that ideally letterbox management should be done where both sets of parents have trust in the arrangements. She thought there was a lot of common ground about indirect contact as illustrated in 48, 49 and 50 of process. She thought it important that the adoptive parents are "in control" because the children need parents who are empowered to parent them. If the adoptive parents wished to provide information that is good, but imposing a condition is intrusive. She did accept the importance of a two-way flow of information and the provision of support for both sets of parents. Ideally she thought there should be a baseline minimum of indirect contact once a year. From that the parents should build up a level of trust. She accepted that the adversarial system had not been helpful in the present case and that many uncertainties had affected the care and adoption process. She agreed it would be helpful for all parties to understand in relation to indirect contact what should be done, the reasons and what was expected. She did not think that it was helpful to impose more indirect contact than was needed for the welfare of the children. Once a year was not the norm everywhere but she did not consider that additional contact in this case would help or enhance the process. The petitioners were prepared for indirect contact once a year and she did not consider that over-prescribing contact would be helpful. Her understanding of events at the children's hearing in February 2008 was that the respondents were advised that the exchange of information was reciprocal. She did not know that their understanding was that the respondents' letters would be left until the children were much older. The children had done a drawing of the respondents for Professor McKay. She accepted that it would be appropriate to send a drawing of that type to the respondents. She accepted the importance of life story work which she thought ideally should start when children came into care. But in this case there were blurred edges because the children were being fostered and the adoption situation was unclear. She thought it was not unreasonable that the petitioners, who were trying to provide stability for the children until decisions were made, were reluctant to allow unfettered access by, for example, the safeguarder or curator if that was the case.

[27] The first petitioner gave evidence about formal undisputed matters in relation to the petitioners. He described T as a lovely boy, full of fun, very intelligent, very engaging and inquisitive. He described the activities which T enjoyed as including football, swimming, cycling and long walks with the dog. He described T's friendship at school and how well he had settled down. A daily communication book between school and the petitioners worked very well. The first petitioner said N was very roguish, full of fun and liked practical jokes. He was a sensitive, caring boy and creative. There was a strong bond between the two boys and their behaviour had significantly improved since they came into the petitioners' care. He described behavioural problems suffered by the boys when they first came into the petitioners' care. T did not respect authority or boundaries. N was very angry and aggressive and showed extreme distress. He could hit, bite and scratch during his angry periods. The children's behaviour was now very different but they could still show periods of insecurity. The first petitioner explained that N had settled very well in their care. T had more anxieties and was obviously seeking reassurance which had been difficult to give because of the legal process and uncertainty. The petitioners had tried to protect the children from the anxieties. He said that the petitioners never had any issue with the history or identity of the children. They always acknowledged the respondents as the birth parents and tried to give appropriate explanations to the children when questions were asked. Some of the questions asked by the children could only be answered by the respondents and therefore the idea of indirect contact was welcome. He said that during the present proceedings, the respondents had handed over some photographs of the children when they were with their birth parents. He thought that was very important and was very grateful for that.

[28] The first petitioner explained that he and the second petitioner had some experience as respite foster carers and had initially looked after T and N as foster carers. During that period, the second respondent had been friendly and thanked the petitioners for their care of the children. It was when the petitioners had been asked and agreed to consider adoption that serious difficulties arose with the respondents, in particular the second respondent.

[29] In relation to letterbox contact, he said that the petitioners had never had a problem with that. It had been made a requirement in February 2008 and there was discussion at the children's hearing about that. The petitioners had wanted to do that in a way appropriate to the children. He fully adopted the memorandum of understanding in relation to letterbox contact in No 50 of process. He was fully committed to the contact described. This memorandum provides:

"1. The petitioners and the respondents commit themselves to letterbox contact because this is likely to serve the welfare of T and N ("the boys"). The parties believe that it is likely that exchange of information will assist the boys to understand who they are and what has happened to them.

2. The petitioners acknowledge that the respondents are the boys' birth parents and commit themselves to continue to acknowledge this to the boys.

3. As soon as practicable the respondents should have the opportunity to communicate by indirect means to the boys, to acknowledge the children's current circumstances and future with the petitioners.

4. At least once a year, in August, the petitioners will send to the respondents a letter giving news about T and N, including information about how they are getting on at school, about their health and about their interests.

5. The petitioners wish the opportunity to seek assistance from the respondents at other times should the boys need information from the respondents that may assist the boys.

6. If the boys have information or direct communication (in the form of drawings, letters or the like) that they wish to be passed to the respondents, the petitioners will pass that on to them, at least annually.

7. The respondents will seek to respond within six weeks of a letter from the petitioners, giving news about themselves, responses to requests for information and indicate any thoughts that they would wish the petitioners to convey to the children.

8. The petitioners will share with the boys the news, information and thoughts sent by the respondents as and when appropriate, unless it would be adverse to the boys interests to do so.

9. All letters between the parties will be passed on through X Council, in accordance with the Council's Letterbox Scheme.

10. The parties will seek the assistance of X Council, or another appropriate agency, in order to facilitate letterbox contact in the interests of the children.

11. The parties will respect the boys wishes in relation to any modification of the contact sought by the boys."

The first petitioner said that the petitioners were opposed to the imposition of a condition in relation to indirect contact. He said that he was concerned about potential difficulties if the respondents could call the petitioners to account. He did not want litigation hanging over his head. He wanted to be free to parent the boys. He did not want the matters coming back to court because "that was a very heavy weight to carry". He agreed there was nothing wrong in principle about sharing information but did not consider that three times a year was necessary. He thought that the emotional investment could distract from parenting. The natural parents do not have a dual parenting role and the children need to feel secure in their adoptive situation. He emphasised that he had no problem about sharing information and giving photographs. He welcomed the idea of receiving a photo album from the respondents because it could help the children to make sense of where they came from. The petitioners were committed to the boys and their history. The petitioners were committed to indirect contact as in 50 of process.

[30] In cross-examination the first petitioner did not accept that the petitioners had ever prevented the children being interviewed by the safeguarder, the first appointed curator, by Margaret Ross or Professor McKay. The petitioners were concerned that the children should not be upset. He did not accept that the names of the children had been changed. They were "known as" for privacy reasons at school. In relation to letterbox contact granted by the children's hearing, the first petitioner accepted that this had not worked. There had been no exchange by letterbox. There had been difficulties about Christmas presents because a letter from the respondents had been included. He said that X social work department dealt with letterbox contact and were responsible for that. Christmas presents were not regarded as appropriate by X social work department so the children did not receive them. The first petitioner communicated information to X social work department and took advice from them. It was not the petitioners who were in charge of letterbox contact.

[31] In relation to future indirect contact, if adoption was granted, he accepted that the children should be aware of their origins and have information about their natural parents. They should not fantasise. They need to know they were not rejected by their birth parents. The petitioners had told the children that they were loved but could not be kept safe by the respondents. He said the children still love the respondents. Indirect contact is part of the children's need to know. He regarded management as an issue because the exchange of information should be carefully managed. He thought that if the respondents sought support from the social work department of X, they would get that support. He was aware of 6/24 of process. He accepted that the respondents would need help to know what to write and that the petitioners also would need support. Help for both sides was necessary. His concern about involving the Scottish Adoption Advice Service (SAAS) would be that another agency had become involved and there would be a need for the agency to have full information about the circumstances. He had no objection in principle to such involvement but he had full confidence in X social work department. He did not consider that there were any problems for the petitioners because they were both involved in that department as a result of their employment. He accepted that if the SAAS agency were funded to carry out the work, he would consider that agency and listen to what might be involved. His concern was about bringing in another agency to a complex situation.

[32] In relation to the details of letterbox contact, the first petitioner said he had reconsidered the question of photographs overnight. He wanted to protect the children. The petitioners now thought current photographs of the children were potentially a vulnerability and that would be a concern for the petitioners. The children might come face to face by chance with the respondents. He accepted that the respondents had not attempted to find the children although they knew the names of the petitioners and they lived in a relatively small community. On further reflection, he accepted that providing current photographs of the children to the respondents was not a problem. He accepted the provision of anonymous school reports. He had no problem with the respondents sending current photographs of themselves and family. He had no problems about sending items prepared by the children to the respondents. He did not however concede the frequency of contact sought by the respondents. As to frequency, he was guided by Alison Wilson. He had an understanding that the letterbox contact worked once a year. He was not aware that there were different approaches to this. He was against a condition in the adoption order because it would be "hanging over our heads". He would not be free to parent. There would be a potential for further litigation and the petitioners feared that. He did not regard contact as simple but he wished to be as free as possible to take a parenting role. He thought the general advice about letterbox contact was correct and that an annual basis was manageable and took into account research and experience in the field. If the court imposed a condition of three times a year he would accept that but that was not what he wanted.

[33] In relation to 50 of process, he said that a great deal of discussion and thought had gone into this. He said this was a promise by the petitioners about what the petitioners agreed to do. The petitioners are committed to the children and accept that N and T need to know about their birth parents. He thought the respondents should trust the petitioners. Whether or not there is a condition, the petitioners promise to do what is set out in 50 of process. He accepted that the respondents loved the children and had genuine feelings for them. He accepted adoption and indirect contact was a hard process for everyone.

[34] The second petitioner did not give oral evidence or affidavit evidence. A sole and conscience certificate dated 13 October 2008 was produced (51 of process). This certified that the second petitioner was medically unfit to attend court on grounds specified.

[35] The first petitioner was recalled at my request to give further evidence at the conclusion of the case for the second respondent. I deal with that evidence in paragraph [45].

Affidavit and oral evidence on behalf of the first respondent

[36] The first respondent was not called to give oral evidence. An affidavit from her was lodged in evidence. In her affidavit, the first respondent stated,

"I know that I did not do things well in the past as far as the children are concerned. I regret that I cannot change the past. If I could go back then I would have done things differently. On 14 October 2008 I made a very difficult decision. I love my children very much and want the best for them."

By no longer opposing the granting of the adoption order, she said she feels ripped apart by the decision but felt she has acted in the best interests of her children. She explained that she is a recovering drug addict, doing her best to improve her situation. She had finished an introductory college course and hopes to become qualified as a beautician and one day run her own salon. She wants to make something of her life to give her children something to be proud of. She hopes that the children will do well and that they will attend college or university. In paragraphs 5-7 she dealt with her wish for post-adoption letterbox contact in terms of 49 of process. She was concerned about the organisation and facilitation of this and wished an independent third party involved. Her perception is that she has had a very difficult relationship with X local authority and she had a huge lack of trust in them. She acknowledged the importance of the children's best interests in any post-adoptive contact.

[37] Professor McKay was led. A lengthy CV of his qualifications and experience is given at pages 11-12 of 40/3 of process. Professor McKay spoke to his report dated 30 September 2008, 40/3 of process and his second supplementary report dated 13 October 2008, 40/4 of process. His evidence related mainly to 40/4 of process. He confirmed that the children, particularly T had recollection of the respondents and of contact with them. He described the attachment of the children to the respondents in this way,

"T opened the way for talking about their view of their birth parents by turning over the sheet of paper on which he had drawn the respondents and drawing a heart with a large cross on each side for a kiss.... he explained that it was a love heart and two kisses, so I was able to ask him if that meant that he loved them. He replied, 'yes', and when I asked N the same question he said, 'I love them because they have been here for a long long time'."

In relation to the petitioners, he confirmed that the children had a firm identity as members of the petitioners' family. He explained that although the children had attachment to the respondents, they had not developed a day-to-day dependency in a secure sense with the respondents. The expression of love and affection for the respondents is the children's attempt to express something important. But both children have formed secure attachment to the petitioners in a more fundamental sense. He considered adoption in the best interests of the children. In Professor McKay's opinion, the future of the children must take account of their history, origins and identity both for the longer and shorter term. He considered that indirect contact three times a year in this particular case would be about right. He thought that once a year was too minimalist. It was a balanced judgment, not an exact science. He did not favour direct contact. He considered that indirect contact required management because the parties have conflicting interests. It was important that the manager has the trust and confidence of both sets of parents because the emotions are very difficult to manage for all parties. Over time, emotions may settle down and there may be an acceptance and abatement of emotions. Having considered the contact proposals in 48, 49 and 50 of process, he expressed the opinion that there was a measure of similarity and that the differences related to form and frequency. There was a lack of research about the effects of frequency of indirect contact. He accepted that the children may be resentful and that their attitudes may change as they become older. It is difficult to be prescriptive over time. Even with adolescents, adults must be responsible for the final decisions about what is in the child's bests interests and how the child's response is to be managed. The longer term interests of the child throughout their lives has to be taken into account. In his opinion, indirect contact was in the children's best interests both in the longer term and in the shorter term. He emphasised that the children have memories of the respondents and that difficulties will arise if these memories are not respected. He recognised that it was a difficult area and that there was a lack of research. In relation to the children's unsettled behaviour after direct contact with the respondents, he thought that it was difficult to interpret such behaviour. It was obviously a difficult and stressful time and emotions were highly charged. The possibility of "some unsettlement" is not surprising. He accepted that his interview might have unsettled T and that indirect contact may also cause some "unsettlement" and might lead to some upset of the children. Nevertheless he considered that it was for the children's greater good in the shorter and longer term that indirect contact of the frequency he proposed and properly managed should be available.

[38] In cross-examination by senior counsel for the petitioners, Professor McKay explained that although his expertise was not rooted in adoption, he did have some general experience in that field. He had to make clinical decisions in a wide variety of cases. He respected those who work exclusively in the adoption field but he believed that there is a wider viewpoint which can be given by a child psychologist. He accepted that Alison Wilson should be listened to and that her experience would be helpful. But he did not accept that her contribution was unique. From his discipline, he was able to consider the issues and advise. He was asked about the purpose of contact and agreed it was important to be clear about that. It enabled a child to develop a sense of identity, prevent fantasy and reassure the child that the birth parents were OK. He considered that everyone involved in the process of indirect contact should be guided and supported. He accepted that one of the benefits of adoption was to encourage a normal family situation without the involvement of social workers. The support process for indirect contact needed to provide a careful balance between empowering the adoptive parents and providing support in a wider sense. He accepted that the purpose of indirect contact did not involve the birth parents in a dual role, "walking alongside" the adoptive parents. The birth parents are there to provide information to support the development of the child. In general the adoptive parent is best placed to make judgements about indirect contact but that can be assisted by the management process. In the present case he was not suggesting that the petitioners would renege on their commitments. But it was important to have a system in place to enable negotiated compromise so that all parties can feel their views have been considered and that to some extent they can feel comfortable about the process. He accepted that indirect contact could be painful for adoptive parents but they co-operate out of love and respect for the children. Again support would assist. He emphasised the difficulties for birth parents and the importance of engaging them despite their pain. He was strongly in favour of indirect contact. He considered that the details would have to be worked out. He emphasised, that as a generality regardless of how appalling birth parents might be, they were still important. In this case the respondents loved the children and the respondents will continue to be important to the children. It is extremely important to get a positive settlement and contact. If the children are adopted, the respondents have lost almost everything and it is important to make allowances for human frailties. The demands of indirect contact may reach an intolerable level on birth parents when they have so little. That should be recognised. In summary, his opinion was that indirect contact three times a year was a good level. The specific detail of what might be involved is not that important but that frequency would in his opinion be beneficial. He accepted that flexibility, management and support are important. Building in a structure was in his opinion helpful. He advised involving an agency which works in the adoption field supporting indirect contact.

Oral and affidavit evidence on behalf of the second respondent

[39] The second respondent gave oral evidence. He said that his relationship with the first respondent had improved and was a lot better. He did not consent to adoption of T and N. He had spoken to Professor McKay and had given instructions. He said he wanted what is best for the children. He did not want shadows or doubts hanging over them. He said about the children, "I want them to go to university and become somebody". He said that the children being taken into care was terrible. He and the first petitioner had put their own problems first and not the children. He accepted responsibility for what had happened. He did have complaint about the involvement of the social workers from X local authority. He said it was like "a brick wall". He accepted that he had been angry and upset. He thought that the social workers should have provided more support particularly in early 2005. The respondents last saw the children on 27 November 2006. He described his involvement in trying to re-establish contact and persuade the social workers to let the children come home. He said that the events had been heartbreaking. He had not even had the opportunity to say goodbye to the children. He is upset about how it was all handled. When the children were in care, the respondents asked the social workers if they could give presents and tried to arrange that. They left a note for the children unsealed so that the social worker could look at the note. The social worker, Louise S said that the petitioners would not be passing anything to the children. The social workers from X local authority did nothing to assist with letterbox contact and did not explain it. The respondents have no trust in letterbox contact through the social work department of X local authority. The respondents find it difficult to trust the petitioners because they did not let independent people, such as the safeguarder and the curator find out the children's views. T expressed the view that the respondents were dead. None of this gave the respondents any trust. The petitioners changed the children's name. They should not have done that. The second respondent explained his position about indirect contact under reference to number 48 of process. He said that he would need help and that he wanted help. He did not want to upset the children in any way. There were many sensitive issues about how to deal with the correspondence and what to say. He could not work with the X local authority because of the history and because of the complete lack of trust. He had no difficulty if different contact arrangements were provided for the first respondent, if that was considered appropriate. He had difficulties with the petitioners' memorandum of understanding (50 of process). He said that the petitioners had had the opportunity to send things by letterbox contact but it was never implemented. He felt that once a year "will become zero". He thought an independent third party was essential. The adoption order should deal also with indirect contact in a reasonable way. Changes would be discussed with the independent agency. The children's views would be taken into account.

[40] There was a detailed cross-examination directed to the credibility and reliability of the second respondent. This dealt with a number of specific incidents in particular the bruising suffered by T in February 2006 when T was in foster care (not with the petitioners). The second respondent was concerned and reported bruising to the police. It was suggested that he was trying to undermine the foster placement which he denied. The second respondent said that following the breakdown of that foster placement, it was a relief when T was fostered by the petitioners. He accepted that the foster placement went well at the start. He said that there were problems, for example, when the second petitioner was ill and went into hospital and contact was cancelled allegedly because of the bad behaviour of the children. Then the second respondent was in prison from August to November 2006. Once the respondents realised that the petitioners were connected by employment with X local authority social work department and were seeking adoption, trust was lost. The second respondent was cross-examined about his criminal record. His recollection was not always in accordance with the agreement in the joint minute. He was critical of the social work assistance given and he considered that the parenting programmes came too late. He was critical of the lack of assistance given to the first respondent by the social work department when he was in custody until 6 April 2005. He thought that was the time that greater assistance could have been given to the first respondent. Thereafter he was critical of the social work support particularly when he was having a very difficult family time because of the suicide of a close relative. He considered that the social work support which had been given in other local authority areas was more effective than in X local authority. He accepted that he was guilty of a number of drink related incidents and that ultimately the responsibility was his as a parent. Nonetheless he did not think that the social workers from X social work department were effective.

[41] The second respondent acknowledged that he had had an alcohol problem for some years. He accepted that on occasion his recollection of events was affected by alcohol. He said he had not consumed alcohol for about three years and that his attitude was now different. He regarded himself as a reformed drug addict and he was working hard at that. He accepted that some of the tests which had been done in 2008 were positive tests for drugs but stated that further testing had resolved this. He was working hard at a methadone programme. He accepted that there had been the occasional lapse. Having been advised that he was not obliged to answer any questions involving criminal activity, he chose not to answer some of the questions. There was some dispute about some of the details of his criminal convictions but he accepted that he did have a record including custodial sentences, two of which were during the lifetime of the children. He said he had made a lot of mistakes. He said that he had been in care "off and on for six or seven years" and had had a lot of drink related problems. His life had not been easy. He had made the same mistakes repeatedly and accepted that because he had a lengthy criminal record, any future sentences might be high. He said that he was trying to improve his life and hoped very soon to regain his driving licence. He had learnt his lessons. He did not wish to return to custody. In cross-examination about his relationship with social workers at X local authority, he tended to blame the social workers. His final position was that he did not trust them. He wanted the involvement of an independent agency. He said that the children had been argued over enough and this had to stop. An independent person involved would help. He said that the picture painted by the social workers was one sided. There were times when the relationship was not so bad and improvements were made. He did not accept that all agencies including the probation agency found it difficult to work with him.

[42] He was cross-examined in relation to how he would provide information to the children about any future custodial sentence. He was resistant to providing such information. He thought that he would need help from the agency to talk about these issues because the whole area is difficult. He said that he would not want to give false information to the children but he would need advice about what to say as it did not seem appropriate to tell the children if he was in custody for short periods. He wanted to be honest but he needed advice on what to say. He said that the respondents had "open wounds" and have to be careful about how indirect contact is done. An independent third party would be helpful. In his opinion, if indirect contact was left to the petitioners and X local authority, indirect contact would not happen. He could not understand the petitioners' position because he thought the respondents were not asking very much. He did not understand how it could undermine the petitioners as parents "to put a piece of paper into an envelope with information." He did not have confidence in the petitioners exchanging information because they had not done that in the past. He accepted that the respondents' main aim had been to obtain the return of the children and that they had been resistant to other solutions. He felt that adoption had been pushed by the social workers even in the circumstances where the children's hearing and the sheriff were not always supportive of that solution. He accepted that because the respondents were opposing adoption, he did not always co-operate. The respondents had done their best to have whatever contact they could with the children. The details of the letter box contact had never been explained to them. He was critical of the social work involvement in the letter box contact which had been granted but never operated. The respondents had tried to use the letter box contact through the social work department and at the children's hearing. The respondents had for example brought presents for the children. At the time they did not understand, because no one had told them, that this was not acceptable. Social workers had not explained or given them 6/24 of process. The respondents had tried to obtain some information about the letter box contact but, as far as they understood from the social workers, any letters they sent would be kept in a safe place until the children were older. The respondents would not have bought presents for the children if they had understood that these presents would not be passed to the children. Until the proof started, the respondents had no idea what indirect contact was being proposed by the petitioners. The second respondent accepted that the respondents had become concerned about the adoption plans for the children and were wary of co-operation with the petitioners. When the social workers first started to plan the adoption, the respondents did not know that the proposed adopters were the petitioners. The respondents did not feel that the process had been open. They were unhappy about the ability of X social work department to obtain medical information about the respondents. The second respondent could not explain how the photographs had been given to the petitioners during the proof. Neither he nor the first respondent had photographs of the children with them and they had not handed over any photographs.

[43] An affidavit from Eileen L (54 of process) was lodged at a late stage of the proof. She is a solicitor who contacted the Scottish Adoption Advice Service (SAAS) to obtain information about the services which they offered. She obtained information from Joan A. She then contacted Alistair S, Senior Solicitor at X local authority to discuss whether the local authority would fund another agency to be involved in facilitating letterbox contact. Following that affidavit evidence, I granted a motion by senior counsel for the petitioners, of consent, to have a new additional witness, Joan A. Of consent this witness was led by the second respondent.

[44] Joan A, is a Children's Services Manager of SAAS based in Glasgow. SAAS has 30% funding from Barnardos and is managed by Barnardos. The rest of its funding is received from local authorities. Joan A has a science degree followed by social work qualifications and is a registered social worker with a post graduate certificate in systemic family therapy practice. Her work has involved working with whole families and she has 17 years experience in SAAS. SAAS does not provide a general service of letterbox contact for local authorities but it does work with individual cases. This is almost exclusively on a voluntary basis with the parties. She considered that a Court Order or condition placed the SAAS in a difficult position and made the work more difficult. The strength of the SAAS is independence and the ability to facilitate agreement and give independent support to the parties. It should not be underestimated how difficult it is for the parties involved. She considered that agreement changes as the children grow older and flexibility is necessary. An agreement can be reviewed with the needs of the children in mind. A court order would make the task of SAAS more difficult. The independence of SAAS assists all parties. The adoption policy law review and the Scottish Executive have acknowledged the value of independent services for birth parents. SAAS would need both sets of parents to be willing to use the service. SAAS offers a mediation service. SAAS had little experience of working in a case where the Court has attached a condition. In cross-examination, she accepted that indirect contact works best for children when the birth parents can acknowledge the role of the adoptive parents. The children need to have everyone on the same side. She did not support a situation where the parties might come back to Court. If the adoptive parents are considered to be fit parents to promote the health and welfare of the children, contact with the birth parents is part of the responsibility the adoptive parents carry. She did not think that responsibility should be separated out from other responsibilities. She explained that SAAS facilitated the drawing up of an agreement to be signed by the parties. They keep in touch with the parties and facilitate agreement and participation in indirect contact. They also copy the information exchanged and keep the information so that it is available in the future. She described the indirect contact as "maintaining connections". It is not about building a relationship. For a child contact once or twice a year can reassure the child that the birth parents are all right and give the children a connection with reality not fantasy. It helps with the identity of the children and opens the possibility of an open door to the birth family in the future. SAAS review the contact at two yearly intervals because the needs of the children may have changed. SAAS had experience of supporting a situation where a birth parent was in custody and could encourage such a parent to write about positive experiences. Commenting on 49 of process, she said that the document seemed to be meeting the needs of the birth mother. She emphasised that letterbox contact is a contact between adults. It is the responsibility of the adoptive parents to assess what is in the child's best interests. She supported adoptive parents sending photographs of the children although she did not favour school photographs. She thought the proposal that the respondents send a photograph album was "a super idea". The children need that and that would be very precious. She thought a frequency of once or twice a year was more appropriate than three times a year. In relation to 48 of process, she expressed the view that school reports could raise some difficulties in circumstances where the child was not doing well. The whole issue of passing on information was problematic. In considering 50 of process, she approved the general thrust of the document. She also stated that children should be heard. It is possible that the children may decide that they do not want information sent. They can feel angry at the birth parents letting them down. In re-examination she accepted that in an ideal world all parties should reach an agreement. Her experience was that after the adoption order is granted, the situation changes. In an adversarial situation it is difficult to trust.

Evidence of the first petitioner on recall

[45] At the end of the evidence, I asked that the first petitioner be recalled. This was because most of the detailed information obtained about SAAS post dated his evidence. The first petitioner explained that prior to hearing the evidence about SAAS, the only information he had was information about the X local authority letterbox scheme in 6/24 of process. He understood the respondents' objection and difficulties about X local authority dealing with letterbox contact with social workers employed by X. In relation to 50 of process, he said that had been drawn up against the background of knowledge about the letterbox scheme in 6/24 of process. He had no problem with SAAS being involved in support of the parties and dealing with the details of the exchange. He accepted that all parties would require support to exchange information. The SAAS scheme was similar in type to the scheme with which he was familiar.

Statutory Reports

[46] On 27 February 2008 a children's hearing considered a proposed adoption application and advised in respect of both T and N that "adoption will be the best option for the long term security" of T & N. (6/7 page 153 and 157). There was a detailed report in terms of the Adoption (Scotland) Act 1978, section 23 dated 18 January 2008 (6/6 of process) which dealt with events about how the children came into care and the circumstances of the children in the care of the petitioners. At paragraph 153 the writers concluded that "the petitioners have evidence of their commitment to T and N by their consistent safe and sensitive care of two young children who have clearly suffered trauma in their early lives." The report of the reporting officer and curator ad litem in respect of each child is dated 17 April 2008, and the supplementary report is dated 11 October 2008 (9 of process). At paragraph K she noted that "there is indeed (in the crates of local authority social work files) evidence of commitment to contact and generally positive reports of behaviour during contact". She noted some difficulties and that there were records indicating that after 2006 the children were behaving in a disturbed manner shortly before and after contact. In paragraph 2B-D she commented on the concerns about the distress or anxiety which the children have suffered and the petitioners' concern about age appropriate discussions with the children in relation to adoption. In paragraph 2H she concluded that alternatives to adoption were considered carefully and that the conclusion that adoption is better than no order is supported by the available information. She expressed the view in paragraph 2Q in respect of each child that "It is my view that the adoption is likely to safeguard and promote the welfare of the child throughout his life". In the supplementary report in respect of each child following a visit on 11 October 2008, an attempt was made to establish the child's attitude to adoption by reference to the idea of a family being together forever. She was of the opinion in respect of both children that the child's behaviour and comments show "a desire for permanence" in the home with the petitioners.

Submissions on behalf of the petitioners

[47] Senior counsel for the petitioners produced written submissions (55 of process) to which she adhered in oral submission. In addition she produced an addendum which she adopted in oral submission (56 of process). Senior counsel submitted in respect of each child that an adoption order should be granted in terms of the prayer of the respective petitions authorising the petitioners to adopt each child and make the usual directions in relation to entries in the Adopted Children Register and Register of Births. Further she submitted that it should be determined that each child shall forthwith cease to be subject to a supervision requirement (in terms of section 12(9) of the Adoption (Scotland) Act 1978. It was submitted that the respondents' motion for a condition pursuant to section 12(6) of the 1970 Act should be refused not because the petitioners were opposed to indirect contact but because the condition would be unhelpful and not in the best interests of the children.

[48] Senior counsel set out the statutory structure which was not in dispute. She referred to the nature of adoption proceedings as described by Lord President Cooper in J & J v C's Tutor 1948 SC 636. She relied on the two-stage test as explained by Lord Hope in Lothian Regional Council v A 1992 SLT 858. She submitted that the Court should approach dispensation of agreement in two stages, the first being to decide whether one or other of the grounds mentioned in section 16(2) has been established and the second whether an order dispensing with the parents' agreement to adoption ought to be made having regard to section 6. She relied on the concession of fact in the Joint Minute to the effect that there was persistent failure on the parents' part to fulfil their parental responsibilities to safeguard and promote the health, development and welfare of the children up to and including 4 October 2005 and a concession of law that this is sufficient to satisfy section 16(2)(c)(i). It was for the Court to determine whether the section 6 test was satisfied and to consider section 24(3) which imposes a restriction on making an adoption order unless the welfare test is met and it would be better for the child that an order should be made, than no order.

[49] Senior counsel invited the Court to reach a judgment that the making of an adoption order would safeguard and promote the welfare of each of the children throughout his life. In short summary, she submitted that (1) the children required security and stability as soon as possible and that uncertainty will be damaging to them; (2) the children were traumatised by their experiences in the care of their birth family and are now recovering and return to their parents would be damaging; (3) the birth parents are not capable of meeting the children's needs and (4) the children are now attached to the petitioners and thriving in their care. Relying mainly on the agreed history in the Joint Minute and undisputed affidavit evidence, she submitted that the history of the case plainly demonstrated these propositions. She also relied on the statutory reports.

[50] Turning to the disputed issues about whether a condition of indirect access should be made pursuant to section 12(6) of the 1978 Act and the terms thereof, senior counsel prayed in aid D v Grampian Lothian Council 1995 SLT (HL) 519. She submitted that a parent divested of parental responsibilities and rights by an adoption order is divested of the right to seek an order for access (now contact). This remains the case by express prohibition under section 11 of the Children (Scotland) Act 1995. She brought to my attention section 107 of the Adoption and Children (Scotland) Act 2007 which is not yet in force. Under reference to B v C 1996 SLT 1370, she accepted that conditions in adoption orders are competent but only appropriate in very rare cases. She pointed out that there were difficulties if agreement was not secured from the person named in the order as responsible for facilitating the provisions of the condition. Under reference to F B & A B, Petitioners 1998 Fam. LR 2 she submitted that the Court emphasised the desirability of flexibility and that in an adoption situation it is not generally appropriate to leave a legal avenue open for recourse to the courts in relation to contact. Reference was also made to AH & PH, Petitioners, 1997 Fam LR 84 and East Lothian Council v A 2002 SC 106 at paragraph 6.

[51] Senior counsel submitted that there was no dispute about the principle of letterbox contact but she submitted that no condition should be imposed. She submitted that the evidence of Alison Wilson should be preferred to Professor McKay in relation to the practicalities of letterbox contact. The principle expertise of Professor McKay is as an educational psychologist in the field of childhood autism. She made detailed submissions as to the reasons that there should be no condition in the adoption order. I give a very brief summary. She submitted that a condition with potential life-long consequences would be a bold move. The adopters should be left in the driving seat and not made subject to a condition. The petitioners as adopters have given a commitment to indirect contact. She rejected criticisms of the petitioners as being reluctant to give access to persons wishing to take the children's views. She submitted that the petitioners were naturally concerned as good parents about exposing the children in an insecure situation. She submitted that the petitioners seek flexibility rather than prescription and that the petitioners should have freedom of action to respond appropriately as the children develop and circumstances change. Communication three times a year is too frequent and imposes too great a burden. Senior Counsel was critical of the attitude of the birth parents particularly the second respondent and pointed out that they demonstrated a difficult history including confrontation and violence on the part of the second respondent. She submitted that petitioners are far more reasonable than the respondents. Future litigation would be seriously adverse in the interests of the children. She submitted that Professor McKay was speculating about the need to motivate the birth parents and that fairness or consolation to the respondents is not the test. To the extent that Professor McKay suggested an ongoing process of negotiation and compromise in relation to indirect contact, she submitted that adoption ensures security by placing children beyond negotiation and compromise. She highlighted some difficulties in relation to the condition of contact and problems in relation to motivation and co-operation of the respondents. She submitted that, if contrary to her submission, the Court were minded to make a condition, it should be time limited, variable and should ensure that the consent of the service to manage the contact had been obtained. She also submitted that if there was to be an extract order, that would require to exclude identifying information in relation to the petitioners.

[52] Senior counsel was critical of the second respondent. She questioned his credibility and reliability. On his own evidence he had difficulty in co-operation with agencies and had difficulties in putting the needs of the children before his own needs.

[53] In relation to the evidence of Joan, senior counsel submitted that this witness had emphasised that although SAAS was happy to facilitate post-adoption contact, she would be "very reluctant" to work with a condition. A condition implied rights and had problems about flexibility. Focus should be on the children not on enforcement. The approach of SAAS was mediation rather than compulsion. Senior counsel for the petitioners submitted that the evidence demonstrated that the petitioners would be happy to work with SAAS.

[54] In response to submissions made by counsel for the respondents, senior counsel submitted that the West Lothian Council v McG 2002 SC 411 case was not of assistance because that case was decided in the context of a freeing order for adoption. She submitted that FB and AB, Petitioners Fam. LR 4 was distinguishable in that parties were acting responsibly. She submitted that counsel for the respondents by accepting or choosing not to rely on the solution set out in B v C introduced new uncertainties about litigation. She queried whether there would be a remedy by petition for contempt but accepted that some attempt might be made by some mechanism to re-litigate. She suggested one possible route might be by utilising Rule of Court 67.3.1(2)(b). In any event she submitted that the proposed solution by the respondents was not one which clearly excluded further litigation as they claimed.

Submissions on behalf of the first respondent

[55] Counsel for the first respondent provided written submissions (57 of process) and additional submissions (60 of process). She also lodged draft proposed conditions (58 and 59 of process). She explained that 58 reflected 49 of process. 59 is a less prescriptive version of 58 of process.

[56] In relation to the merits of the adoption, counsel explained that the first respondent does not consent to the granting of the petitions. Counsel made no submission on the question of whether or not the Court should dispense with the consent of the first respondent or about the welfare aspect of the petitions. Counsel submitted that conditions should be attached to the adoption order of the type set out in 59 of process depending on the view of the evidence taken by the Court.

[57] Counsel submitted that having regard to the welfare test a condition should be attached to each of the adoption orders. She submitted that B v C was an unusual case and the Court was not giving general guidance about conditions. The present case is distinguishable. In particular she submitted that the first respondent was not inviting the Court to provide a mechanism whereby there might be enforcement or variation of the condition at a later date. She referred to FB and AB Petitioners, 1999 Fam LR 4 and submitted that attachment of a condition of contact was not limited to exceptional circumstances. She submitted that in the present case she was not seeking a mechanism as provided in B v C to enable the parties to return to Court. Her original submission was that as a matter of law there was no such possibility. She wished a condition but with no enforcement mechanism. She referred to West Lothian Council v McG 2002 SC 411 to support her submission that a natural parent deprived of parental rights was not entitled to circumvent the clear statutory provisions of section 11 of the Children (Scotland) Act 1995. She then addressed the question of what purpose would be served by the Court imposing a condition which would be unenforceable. She submitted that the clear need for the condition is not bound up with the issue of enforceability but rooted in the application of the welfare test in section 6 of the 1978 Act. She submitted that in the whole circumstances of the case there is clear evidence that the welfare of the children will best be protected and preserved by indirect contact. In the circumstances of the present case it was necessary to have clear parameters outlining the parameters of the contact otherwise it would not achieve its clearly stated aim of safeguarding and promoting the welfare of the children. In the course of oral submissions, as reflected in the additional submissions (60 of process), the legal submission put forward by the first respondent changed. Her final position, as I understood it, was to this effect. Counsel submitted that 50 of process and the reassurances from the petitioners were insufficient to satisfy the Court as in FB and AB Petitioners that no condition is necessary. She readdressed the issue of the enforceability of a condition of contact. She considered what are the consequences, legally for those parties to the conditions. She submitted that it was well settled that the consequences of the adoption order is to divest the first respondent for all time coming of parental rights and responsibilities. The first respondent has no right to enforce the condition of post-adoption indirect contact qua parent (West Lothian Council v McG) and she cannot seek enforcement under the Children (Scotland) Act 1995. She submitted that if the condition of indirect contact is attached to the adoption order, it would not be open to anyone to return to the Court in the adoption process. But a failure to obtemper the condition might result in a party bringing the failure to the attention of the Court by petition for an alleged contempt. She referred to MacPhail on Sheriff Court Practice 2.18-2.25. She submitted that this did not mean that there would be a "loop of litigation". If the order is obtempered, there is no problem. She submitted the conditions sought are not so unduly burdensome as to be on a practical level unmanageable even in a change of circumstances. Even if there was a period of non-implementation of the condition, if that was for good reason there would be a good defence to any petition seeking sanction for contempt.

[58] Looking at the facts, counsel submitted that a condition was necessary because of the lack of mutual trust between the parties. She commented unfavourably on the absence of any evidence from the second petitioner. The height of the petitioners' case is the evidence from the first petitioner that the second petitioner is committed to indirect access of the type set out in 50 of process. She made criticism of the petitioners' position and referred to the change of surname of the children without the consent of the respondents, the opposition to independent parties interviewing the children and the lack of participation in the limited scheme for letterbox contact to date. Counsel accepted that the first respondent acknowledged that her conduct to the petitioners and to those employed by X social work department had not always been appropriate. This underlined the lack of trust between the parties. Counsel emphasised the need for agreement about contact in clear detailed and specific terms. That was attempted in the draft conditions proposed on behalf of the first respondent. Counsel submitted that looking to the facts objectively judged, the first respondent is reasonable in lacking trust in the social workers of X local authority. The obvious alternative was SAAS. The question as to whether or not a condition was attached was a matter for the Court not for SAAS.

[59] In relation to the level of indirect contact, counsel submitted that the Court should accept the evidence of Professor McKay where it varied from Alison Wilson. It was submitted that Alison Wilson had lost objectivity and had become an advocate on behalf of the petitioners. In relation to the memorandum of understanding (50 of process) she submitted that the Court cannot be satisfied that this would provide sufficient security and a level of information to sustain the motivation of the first respondent in participating contact which is undeniably considered important in protecting and preserving the welfare of the children.

Submissions by counsel for the second respondent

[60] Counsel for the second respondent provided written submissions (62 of process) to which she adhered during oral submission. Counsel submitted that the second respondent does not consent to the granting of adoption orders in respect of the children. But following advice from Professor McKay, the second respondent wishes what is considered best for each child and accordingly no submissions are made on behalf of the second respondent in relation to whether or not such an order should be pronounced or whether or not his consent to the adoption order should be dispensed with.

[61] Counsel for the second respondent accepted the analysis of the adoption law in relation to the merits of the adoption order as submitted by senior counsel for the petitioners. There were a number of factual matters which counsel for the second respondent disputed. She explained that these issues were not fully explored at proof because of the concession that the granting of an adoption order in respect of each of the children would not be opposed.

[62] In relation to the issue of indirect contact she said there was undisputed evidence from Alison Wilson and Professor McKay that indirect contact is in the best interest of each child. Turning to the details of indirect contact she accepted that frequency was in dispute. There was a range of frequency. Alison Wilson gave evidence of once a year. Professor McKay gave evidence of an exchange three times a year. She submitted that what is important is that there is indirect contact. She accepted there was room for compromise in relation to the frequency taking into account professional views. She accepted that any such exchange would not take place at "emotional" times and would entail an exchange at the same time on each occasion. She submitted that indirect contact required to be facilitated. She emphasised the evidence about the second petitioner's lack of trust in facilitation by X local authority. She pointed to Professor McKay's evidence that indirect contact should be managed and monitored through a professional who can have the confidence of both the petitioners and the birth parents. She referred to the evidence of Eileen and Joan A about the SAAS service. In conclusion she submitted that, in the particular circumstances of the case, an independent agency such as SAAS was required to facilitate contact. If X local authority were the manager, indirect contact would not happen.

[63] Turning to the law, counsel made reference to section 12(6) of the Adoption (Scotland) Act 1978. As examples of conditions being attached to adoption orders she referred to AH and PH, Petitioners, B v C and FB and AB, Petitioners. In inviting the Court to make a condition, she submitted there were a number of factors to be considered: this was an unusual and difficult case. There was no evidence from the second petitioner; there was a "promise" from the first petitioner; despite the petitioners' "commitment to letterbox contact", letterbox contact had never happened; a condition would not undermine the adopters; communication three times a year would not undermine the stability of the placement; there was a lack of trust by the second respondent in the petitioners' commitment to indirect contact. Counsel emphasised that this is a case in which the first petitioner is promising substantial indirect contact in terms of 50 of process. The second respondent merely wishes that commitment or a similar commitment to be incorporated as a condition. It was submitted that the second respondent did not seek variability. The form of the order sought by the second respondent was a condition which simply forms part of the order. The second respondent proposes terms which are permissive. It was submitted that it was difficult to envisage how proceedings could be raised to enforce such terms. The second respondent was not seeking a means of further litigation.

[64] In relation to the issue of variability, counsel referred to section 11 of the Children (Scotland) Act 1995, in particular section 11(4)(a). She referred to B v C in which the Court had provided the machinery to regulate or vary a condition. That was not sought in this case by the second respondent. She referred to West Lothian Council v McG at page 424-425. Counsel submitted that without including a machinery for variation, as in B v C, it would not be possible to vary the term or condition. She also accepted that there was an issue of enforceability. Nevertheless she submitted that a condition should be made firstly because the first petitioner had stated he would obey any order. Secondly, in the absence of an order with only X Council social workers involved, indirect contact is likely not to happen. Thirdly, it would be in each child's best interests to know that the second respondent had done his best to facilitate contact.

[65] Counsel then addressed the term or terms which the second respondent sought to have as part of the adoption order. She explained that the second respondents' proposals in No 48 of process were made before hearing the evidence about the work of SAAS. She conceded that less detailed terms might be appropriate than appear in 48 of process. She proposed general terms (1) that there be (allowed) indirect contact, by means of the exchange of correspondence between the petitioners and the respondents (or the second respondent) and, at the discretion of the petitioners, the child, three times a year at the end of each school term until the child attains the age of 16 years. (2) That the exchange of correspondence is facilitated and managed by SAAS or such other independent agency providing this service, the services of such agency to be funded by X local authority.

Discussion

(1) Some comments on the evidence

[66] In so far as there were conflicts in the evidence, I regard these as matters of detail. The broad picture about the factual background was not in dispute and is reasonably clear. Bearing in mind the detailed and sometimes confused history of events over a long period, it is not surprising that there were some conflicts in the evidence. I consider that criticisms by senior counsel for the petitioners about the second respondent's reliability are well founded. He accepted, for example, that some of the events took place when he was under the influence of alcohol and other events took place when he was in an emotional state. Some of his evidence about particular matters such as the circumstances of previous convictions did not accord with the agreed factual history. That does not mean however that I am not prepared to accept some of his evidence. Much of the second respondent's evidence was concerned with his feelings and wishes. I accept that evidence as genuine and reliable. In certain matters, as I narrate, I also accept his evidence about some factual matters in dispute. It was not my conclusion that the second respondent deliberately told lies in his evidence. I consider that he was trying to recount his memory of events. It was not submitted by the respondents' counsel that the first petitioner was lying but criticisms were made about the genuineness of the petitioners' offer to engage in indirect contact. I deal with that in paragraph [70]. In relation to the expert evidence of Alison Wilson and Professor McKay, I found both these witnesses of assistance. Both supported adoption of T and N by the petitioners. Both supported the principle of indirect contact in this case. I was particularly impressed by the experience and expertise of Professor McKay which enabled him to put into a wider context the consideration of indirect contact in this cases. Both Alison Wilson and Professor McKay accepted that indirect contact often posed difficulties for both birth parents and adoptive parents. They agreed that the difficulties may be greater for birth parents than adoptive parents. I consider that to be likely in the present case. The respondents plainly are very distressed about the adoption to which they do not consent. They are concerned in case there is no contact or further information exchanged about the children. Professor McKay recognised the potential for indirect contact breaking down as a result of the emotional upset of the respondents. He gave some consideration to this to minimise this risk. My understanding of his evidence was that indirect contact once a year would not be sustainable as the period was too long. He considered that the respondents required more frequent contact to help motivate and console them. But that contact could take different forms. It did not necessarily involve the petitioners writing a letter on each occasion. It might involve the sending of a report or a photograph. Although this part of Professor McKay's evidence was criticised by senior counsel for the petitioners, I did not accept her criticisms. Professor McKay was not in my opinion departing from consideration of the best interests of the children in reflecting on wider issues about the effect on the birth parents and consideration of how to motivate and console them. In my opinion little consideration has been given in adoption practice about how best to engage and motivate birth parents. There is a recognition that the withdrawal of birth parents is a cause of breakdown of indirect contact, but no research or practice has developed to minimise this problem. Professor McKay has reflected on this. I consider that his views that contact once a year is minimal deserve to be given weight for the reasons he gives.

[67] Having made some general comments on the evidence, I turn now to consider some of the issues in respect of which it was submitted that there was conflicting evidence and dispute. Despite the length of the evidence these issues were not wide ranging. Taking into account the substantial agreed factual history and the way in which the case developed, that is not surprising.

[68] The history of social work involvement with the respondents, particularly with social workers employed by X local authority was contentious. I do not regard it as part of my task in the adoption proceedings to identify historic failings and allocate blame. Particularly after January 2007, the respondents were caught up in a system with which they struggled to cope. They were many meetings, decisions, Court proceedings and appeals both by the respondents and the petitioners leading to a situation where it is not surprising that trust and co-operation became difficult. It must have been extremely difficult both for the petitioners and the respondents to cope with different decisions being made in relatively short time periods by different people. In particular the respondents must have been very distressed when their apparently successful attempts to re-establish contact with T and N and oppose decisions about freeing for adoption did not lead to the outcome which they wished. I have no difficulty in concluding that this put the petitioners and the respondents under great emotional stress. I accept that the petitioners and the respondents, in their own way, wished to look after the best interests of the children as they saw it. A variety of social workers, children's hearings and the Courts were also involved in decision making about the best interests of the children. From time to time these decisions differed. With such a history, is not surprising that there was a lack of trust on the part of the respondents in the X local authority social work department and a lack of trust between the petitioners and the respondents. The adversarial nature of some of the proceedings has not in my opinion helped.

[69] In relation to evidence about the letterbox contact provided for by the children's hearing, I am prepared to accept the second respondent's evidence to the effect that this never worked. I do not consider that the respondents were given sufficient explanation about how this contact was to be operated. I consider that it was unfortunate that the respondents bought presents for the children believing that these would be given to the children with their note. I do not consider they would have done this if the scheme had been sufficiently explained to them. I do not accept that the petitioners are responsible for the failure of letterbox contact to operate or that in some way this demonstrates the opposition by them to letterbox contact. Both the petitioners and the respondents were involved at the relevant time with many other problems relating to the children. At that time also, there was increasing hostility and lack of trust displayed by the respondents to the petitioners and by the respondents to the social workers. Letterbox contact at that time had little chance of success.

[70] I do not accept the criticism made on behalf of the first respondent that the petitioners are hostile to letterbox contact and that is consistent with the petitioners' attitude to changing the surname of the children and opposing the interview of the children by independent parties. It was plain from the evidence of the head teacher that she was well aware that the children were in foster care with the petitioners at the time. I accept that the change of name is a matter of some sensitivity but I consider that there were obvious advantages to protect the children. In relation to interviews, the petitioners as foster carers of young children wished to protect the children and ensure they were not upset by questions from unfamiliar adults. It may be that there was an element of overprotection but I do not consider that there was any sinister motive on the part of the petitioners. In any event the evidence must be seen as a whole and in context. The first petitioner in his evidence made it plain that he recognised that the children voiced love for the respondents and knew about the respondents. He did not seek to minimise that. From his training and experience as a prospective adoptive parent, the first petitioner displayed an understanding of the importance of letter box contact for the welfare of the children. He also had the opportunity to hear the overwhelming evidence in favour of such contact. The first petitioner impressed me as a thoughtful, considerate man who was anxious to be a good parent to the children. He accepted that involved co-operating with letter box contact. I do not accept that he was attempting to deceive the Court in relation to his attitude. The second petitioner was unable to give oral evidence and there was no affidavit from her. I do however have the evidence of the first petitioner about her attitude which he said was the same as his. There is no evidence which I accept to suggest otherwise. There is also undisputed evidence that both petitioners have promoted the welfare of the children and will continue to do that.

[71] The second respondent in his evidence was concerned to question the reason for the disturbance of the children after access with the respondents during the period the children were in foster care. The evidence of the social workers was to the effect that this was because the children were upset by the access. This was disputed by the second respondent. I accept that there may be a number of explanations for the distress of the children. That distress, which was undisputed, manifested itself in various ways. I do not consider that the existence of other reasons undermines the decision making of the social workers. Fundamentally whether the children were distressed because they were seeing too little of the respondents and too infrequently or for the reason considered by the social workers or for some other reason is not important now in the context of this case. The fundamental problem is that as a result of admitted difficulties on the part of the respondents, these young children had to be taken into foster care. The children had experienced a range of difficulties likely to cause them distress including having to adapt to new adults. I am not at all surprised that the children were distressed and suffered behavioural difficulties. In my opinion the respondents must bear the responsibility for that.

(2) The merits of the adoption order

[72] I turn now to the merits of the adoption order in respect of the child T. The law which falls to be applied was not in dispute and is set out in the Adoption (Scotland) Act 1978. It was not in dispute that the test that falls to be applied is a two stage one (Lothian Regional Council v A). My task is to decide firstly whether one of the grounds mentioned in Section 16(2) of the Act has been established. In this case the petitioners rely on Section 16(2)(c)(i). My starting point for consideration of that is the concession of fact in the joint minute to the effect that there was persistent failure on the respondents' part to fulfil their parental responsibilities to safeguard and promote the health, development and welfare of the children up to and including 4 October 2005. Even without that concession, I would have little difficulty in concluding that the said grounds were established after consideration of the agreed facts in the chronology and 6/7/84-97 and 6/7/20-23 of process. It is apparent from that chronology that serious problems were recorded within weeks of the birth of T. Z had drinking problems, there were assaults and domestic disturbances. Indeed the period between 5 March 2002 to the birth of N on 22 April 2003 is characterised by very disturbing and serious behaviour by Z to L. I note that on 16 February 2003, Z was sentenced to six months in prison for assault on L and was counselled for alcohol addiction, personal relationships, childhood trauma and anger. Shortly thereafter N was born. The chronology thereafter reflects very unsettled and difficult domestic circumstances with further episodes of domestic violence and a continuing problem with alcohol abuse by Z. Not surprisingly by March 2004, H Council sought CPOs because of concerns over levels of domestic violence and Z's anger and alcohol problems. These orders were granted and the children were placed with foster carers. Thereafter the chronology continues with attempts at rehabilitation and various continuing problems particularly Z's violent behaviour, alcohol abuse and domestic problems. I consider it important to bear in mind that the problems in the family manifested themselves at the earliest stage and long before X local authority became involved. By the time X local authority took over the case in 2005 there was a long and problematic history which was very concerning in my opinion. The chronology continues up to March 2008 and at that date there remain substantial problems. I accept that from time to time the respondents did demonstrate a willingness to improve and some improvements occurred. As at the date of the hearing of the evidence, the children remained in care and the respondents had not had contact with the children for almost two years. There was undisputed evidence that both respondents had suffered from problems in relation to drugs. To their credit they were both participating in 2008 in a programme of rehabilitation. But years had passed in the life of T. The respondents, despite help, despite programmes, are still trying to overcome their own problems. I am satisfied that both the first respondent and the second respondent as a matter of fact failed to safeguard T's health, development and welfare. I am satisfied that this has occurred over a period of time and amounts to persistent failure. Looking at the matter objectively, I am satisfied that there has been persistent failure without reasonable cause. It may be that this failure is explained because of the respondents' problems and difficulties but that does not amount to reasonable cause.

[73] Having been satisfied that one of the grounds in Section 16(2) is established, I must now consider whether an order dispensing with agreement of the first respondent and separately the second respondent should be made in terms of Section 16 (1)(b)(ii). In considering that I must apply the Section 6 welfare test bearing in mind the provisions of Section 24(3) and the advice provided by the children's hearing in terms of Section 73(13) of the Children (Scotland) Act 1995. Section 6 provides inter alia that the Court 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." In order to do this, I require to take into account the evidence which includes the evidence about the establishment of the grounds under Section 16(2)(c)(i). I consider that senior counsel for the petitioners was well founded in her submission which I have summarised in paragraph [49], subject to the views of the evidence which I have expressed. I have dealt with the statutory reports in paragraph [46]. These reports plainly demonstrate that the section 6 welfare test would be satisfied by adoption by the petitioners. There was no contrary evidence. I was particularly impressed by the evidence of Professor McKay to the effect that adoption by the petitioners was in the best interests of the children. The children are very young but insofar as they are able to express a view, it is plain from the evidence that they regard the petitioners as their parents and wish permanency in their home and family. In these circumstances I have no difficult in concluding that in respect of both the first and second respondent that agreement to the making of the adoption order should be disposed with.

[74] In relation to the child N, I repeat what I have said in paragraphs [72-73]. The evidence was plain that T and N have a good relationship as brothers. There was no suggestion in the evidence that T and N should be dealt with in different ways. I accept that there are differences in the reactions of the children and their response to the experiences of early life. Their memory and recollection is different to some extent because of their age.

[75] I am in no doubt that an order in favour of the petitioners for adoption of T in the first petition and N in the second petition should be made and that this will safeguard and promote their welfare throughout their lives. I hereby grant such orders.

Indirect contact (letterbox contact)

[76] Despite the days of evidence exploring various alternative forms of indirect contact and the reasons therefor, this is not a case in which the principle of indirect contact was ever disputed in the context of the adoption proof. The difficulties appeared to arise from the lack of focus by the parties about the details of such contact, the lack of trust by the respondents of the petitioners and the respondents' objections to any involvement by social workers from X local authority.

[77] It was not until the stage of submissions that I understood that counsel for the respondents were not seeking a condition of indirect contact which might be varied of the type discussed and set out in B v C. The difficulties of imposing an unvariable condition in the terms sought by the respondents were discussed in the course of submissions. This may explain the more general terms of condition which were later advanced in submission. I was assured by counsel for the respondents that there was no intention on the part of either respondents to create an opportunity for further litigation and that a variable condition was not sought by either respondent. As I have recorded in paragraph [54], there was some discussion about potential methods of redress if a condition or term of indirect access was not obtempered. There was also some discussion about possible future changes in the law when section 107 of the Adoption and Children (Scotland) Act 2007 was implemented. Interesting though these submissions may be, I consider that the submission that I should impose an unenforceable and unvariable condition very unattractive as a possible solution. It was plain from the evidence and indeed obvious, in any event, that considerations about indirect contact and the future welfare of a particular child may change over a period. The children in this case are both very young. I am strongly of the opinion that if a condition of indirect contact was made with any specific terms, there would have to be built in some power in the Court to vary the condition in appropriate circumstances. That was the approach adopted in B v C. Another difficulty is that the evidence was clearly to the effect that SAAS, as an agency, did not wish to work with conditions imposed by the Court as a general rule or in the circumstances of this particular case. That is because of the way in which SAAS works. They try to mediate and reach some consensus amongst the parties. The evidence was that in such a situation compulsion was not helpful. Another difficulty about the proposed conditions by the respondents is that there was little evidence about the critical matter of funding. This issue was not explored in any detail in the evidence but was referred to in the affidavit of Eileen L. There was no evidence from X local authority that they would consent to a condition imposed on them in respect of funding or undertake funding of SAAS voluntarily in respect of the parties and children. I also considered it was an unacceptable solution to set up a situation, in which if terms and conditions were not obtempered, a party might attempt to find some remedy, for example, by way of contempt of court proceedings. I concluded that the conditions suggested by the respondents were unsuitable, unnecessary and undesirable as conditions to form an unvariable term or condition of the adoption order in the context of this case.

[78] I consider it important, however, to record that having heard detailed evidence, I am in no doubt that indirect contact under the supervision of social workers from X local authority is doomed to failure and that some other alternative is essential. Having heard the evidence in relation to the work of SAAS and the willingness of the first petitioner and the respondents to co-operate with SAAS in relation to indirect contact, the obvious solution is the involvement of SAAS. I have deliberately recorded at some length the evidence about the importance of indirect contact in this case for the future welfare of the children. That evidence is overwhelming and uncontradicted. It is plain from that evidence that indirect contact of the letterbox type discussed is important to the present and future welfare of T and N. It cannot however be defined in unvariable terms for the future because of the obvious potential for change of circumstances. As the second petitioner did not give evidence, her position about the involvement of SAAS was not updated from the position set out in 50 of process. She did not hear the evidence. I am satisfied, however, that the second petitioner, like the first petitioner as an adoptive parent, has the bests interests and welfare of T and N in mind and will act accordingly.

[79] As I was not satisfied there was sufficient evidence available about the attitude of X local authority to funding SAAS in the circumstances of this case, I asked that X Council explain their position in writing. A letter dated 6 November 2008 was made available to the Court and parties' agents. Parties' agents were advised that I was willing to reconvene the Court if they wished to address me further in relation to said letter. That was not requested. The letter stated inter alia:

"As in every adoption case, provided it is safe and appropriate for the children, X local authority will support letterbox contact so that T and N can grow up with a sense of their identity. Accordingly, if the Court indicates that the services of SAAS should be used in this case, X local authority will use its best endeavours to enter into a Service Level Agreement with SAAS at a fee not exceeding £500 per year to facilitate an exchange of information in terms of letterbox contact and also to provide support to the individuals involved.

As is usual with such Service Level Agreements, the agreement is subject to annual renewal.

X local authority will seek to include the Service Level Agreement that the annual fee will be related to the level of work carried out by SAAS, subject to a maximum of £500 per year (plus any increase that is required to reflect inflation); that the Council will only pay for such a service in so far as it is actually being utilised; and that the Service Level Agreement will terminate once both boys have reached their 16^th birthdays."

[80] I have made it plain that in my opinion indirect contact of the letterbox kind using the services of SAAS is in the best interests of T and N. I expect parties and SAAS to progress indirect contact funded by X local authority. The issues for discussion between the parties and SAAS have been narrowed during the course of evidence.

[81] It may be helpful if I express an opinion on the basis of the evidence about how indirect contact might be progressed in the short term. Both the first petitioner and the respondents recognised the importance of the exchange of photographs and expressed a wish for such an exchange. In circumstances which never became clear in evidence, the first petitioner did receive some photographs of the children and respondents. The first petitioner was grateful for this. The respondents have no recent photographs of the children and would welcome that. In the short term, I consider that the petitioners should make available to the respondents a recent photograph or photographs of the children and some art work of the children as a gesture of good faith. The respondents, with the assistance of SAAS, should spend some time preparing an album of photographs with appropriate explanation and in due course hand this over as a gesture of their good faith. Thereafter I would expect SAAS to work with the parties to achieve a measure of agreement about the form and frequency of contact for the future. The contact may take a number of different forms, such as an exchange of photographs, and need not involve on every occasion a written exchange of information by the petitioners or the respondents.