Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 41
	OPINION OF LORD BANANTYNE in The Petition of W.G.M and A.J.M Petitioners; for An adoption order under the Adoption (Scotland) Act 1978 in respect of Child A ­­­­­­­­­­­­­­­­­________________

Petitioners: Loudon; Digby Brown

First Respondent: Wylie; Drummond Miller

Second Respondent: Guinnane; Bonar Mackenzie

25 March 2010

Introduction

[1] This petition for an order under the Adoption (Scotland) Act 1978 (hereinafter referred to as "the Act") came before me on 12 January 2010. The petitioners are husband and wife and are the foster parents of the Child A who is the subject of the petition. The petitioners sought an adoption order in respect of Child A.

[2] The Child A is a boy and the child of the first and second respondents who are opposed to the adoption. In the event of adoption, they both sought a condition of contact. Initially, as I understood it, both direct and indirect contact was sought. However, in submissions both respondent's counsel only sought indirect contact. The first respondent is the child's mother. The second respondent is the child's father. He was granted parental rights and responsibilities in respect of the Child A. The first and second respondents were partners who for a short period of time lived together. They no longer live together. They are not married.

[3] When the case came before me on the first day of the proof I was advised by counsel for the first respondent that a report had been instructed from Professor Furnell and for various reasons that had only become available that morning. I was asked to adjourn the case until 2 pm to allow consideration of the terms of that report by counsel. In addition in light of the terms thereof both respondents' counsel wished to consult with their respective clients.

[4] At 2 pm I was advised by both counsel for the respondents that they were not yet in a position to proceed and I was asked to further adjourn the matter to 10 am on the following day. I did so. On Wednesday morning I was then advised that the second respondent had overnight sacked his counsel and was seeking further representation. I was moved to adjourn, yet again, to 10 am the following day. I again granted this motion. None of these motions was opposed by counsel for the petitioners.

[5] Eventually matters were able to proceed on the third day of the proof and I am grateful to counsel for their efforts to ensure that the diet of proof proceeded at that point. Nevertheless, I consider it most unfortunate that in a case like this, expert reports should become available on the first day of the hearing and that considerable delay was thus caused.

The Petition and the Issues Arising Therefrom
[6] The petition specifies various formal matters in paragraphs 1 to 12 and 14 to 22 which were not in broad terms disputed. The issues which were originally in dispute in the petition related to paragraph 13. In summary the issues related to allegations that the first respondent had persistently failed without reasonable cause to fulfil her parental responsibilities to safeguard and promote Child A's health, development and welfare in terms of Section 16(2)(c) of the Act. This ground was at the outset of the case dropped. The case then proceeded on the basis that both respondents were withholding their agreement to the adoption order unreasonably in terms of Section 16(2)(b) of the Act. If an adoption order was to be granted there was then a dispute regarding the imposition of a condition to the adoption order regarding contact and the frequency thereof.

Agreed Facts

[7] Counsel for the parties entered into a joint minute of admissions (number 24 of process). In terms of the said joint minute the parties set out the factual background leading to the bringing of the present petition which included a chronology of the Child A's entire involvement with the social services and the procedural steps taken in the course of that involvement.

"1. Child A ('the child') was born on 31^st May 2003. He is the child of A.I.W. ('Ms W') and D.L.S. ('Mr S'). (Who are respectively the first and second respondents).

2. A.I.W. and D.L.S. are not and have not been married. D.L.S. acquired parental responsibilities and parental rights in respect of the child on 7^th December 2006 by virtue of an agreement under Section 4 of the Children (Scotland) act 1995.

3. Ms W and Mr S do not live together. They maintain separate tenancies. From time to time they have stayed overnight at each other's homes.

4. Ms W has three older children, L.H., who was born on 19^th September 1987; L.R., who was born on 1^st August 1996 and J.R. who was born on 5^th May 1999. On 31^st October 2008 a residence order in respect of L.R. was made in favour of Ms W. She also has an order for contact in respect of J.R. Mr S is not the father of any of these children.

5. On 3^rd March 2003 L.R. and J.R., then aged 6 and 3, were placed on the Child Protection Register under the category of neglect. On the same day, L.H., then aged 15 years was placed on the Child Protection Register under the category of physical abuse. On 23 July 2003 L.H.'s name was removed from the Register. In November 2003 the names of L.R. and J.R. were removed from the Register.

6. On 5^th June 2003 the child was placed on the Child Protection Register under the category of potential for neglect.

7. On 24^th August 2003 Ms W agreed to the child being accommodated on a voluntary basis. On 28^th August 2003 Ms W was admitted to hospital as an in-patient for assessment of her mental health. On 28^th September 2003 a decision was made by the Social Work Department of Aberdeen City Council (the 'SWD') to work towards rehabilitating the child back to his parents.

8. On 15^th November 2003 the child had his first overnight stay in his parents' care. The child was returned to foster care after one night.

9. On 4^th December 2003 at a Children's Hearing a place of safety warrant was issued and the case was referred to the Sheriff for proof as the child was far too young to understand the Grounds of Referral. On 23^rd December 2003 the place of safety warrant was continued.

10. On 12^th January 2004 the Grounds of Referral were established at Aberdeen Sheriff Court. Production 13/7/1 is a true and accurate copy of the Grounds as established. On 13^th January 2004 the place of safety warrant was continued.

11. On 30^th January 2004 at a Children's Hearing a decision was reached that the child be made subject to a Supervision Requirement, naming his foster carer as his named place of residence. The child has continued to be subject to a Supervision Requirement since then.

12. At a Looked After Children Review on 22^nd March 2004 a decision was reached that rehabilitation to his parents' care should be pursued.

13. On 6^th April 2004 the child was returned to Ms W's care.

14. On 15^th April 2004 at a Children's Hearing the Supervision Requirement was varied to provide a condition of residence with Ms W.

15. On 24^th May 2004 the child's name was removed from the Child Protection Register.

16. On 12^th January 2005 Dr Elizabeth Myerscough, Consultant Paediatrician examined the child. She concluded, inter alia, that the child displayed severe behavioural problems. At the end of the examination, after discussion with a member of the SWD and a police constable, it was agreed that it would be in the child's best interests to be accommodated by the SWD. There were no medical grounds upon which to seek a child protection order that day.

17. On 27^th January 2005 at a Child Protection Case Conference a decision was reached that the child's name be placed on the Child Protection Register under the category of neglect, with emotional and physical abuse highlighted.

18. On 1^st March 2005 at a Children's Hearing a place of safety warrant was issued. Since that date the child has remained accommodated.

19. On 14^th March 2005 Dr Myerscough examined the child. She concluded that there was evidence of recovery from failure to thrive and recommended that the child remain accommodated to complete his growth recovery which would take approximately three months.

20. On 22^nd March 2005 a further place of safety warrant was issued, with a condition that the child shall have separate twice weekly supervised two-hourly contacts with Ms W and Mr S.

21. On 12^th April 2005 a Children's Hearing reached a decision that the Supervision Requirement be continued. The Hearing considered that contact between the child and Ms W and Mr S should be a minimum of two hours twice weekly, supervised and should be increased if possible, but managed by the SWD.

22. On 28^th April 2005 at a Looked After Children Review Hearing a decision was reached that the child could not safely be rehabilitated home and that permanency plans be pursued.

23. On 30^th May 2005 at a Children's Hearing a Safeguarder was appointed to look at long-term plans for rehabilitation. The Safeguarder considered that in circumstances where the child was going to face further disruption by moving from his present foster carers it may be in the child's best interests that assessment of Ms W continue at least until the stage at which some alternative had been provisionally identified.

24. On 8^th August 2005 at a Children's Hearing the Hearing considered the Safeguarder's report and requested the SWD to carry out a formal assessment of Ms W. The condition attached to the Supervision Requirement was varied to provide that contact need not be supervised.

25. On 7^th November 2005 at a Looked After Children Review Hearing a decision was reached that the child would be referred to the Adoption and Fostering Panel while the assessment of Ms W was carried out.

26. On 21^st December 2005 the child's case was considered by the Adoption and Fostering Panel. The Panel recommended that further analysis of the information be made available of the ability of the child's parents to care for him and that following that assessment and a further Looked After Children Review the child's case should be referred back to the Panel.

27. An assessment was carried out by Sheila Archibald dated 1^st March 2006 of Ms W. No assessment was undertaken of Mr S to assess his ability to parent the child.

28. The child's case was considered by the Adoption and Foster Panel on 13^th March 2006. The Panel recommended that Freeing for Adoption be pursued for the child, which recommendation was accepted by the Decision Maker of Aberdeen City Council.

29. On 21^st March 2006 a Children's Hearing reached a decision to continue the Supervision Requirement with a condition of residence with a named foster carer. It further reached a decision that the condition attached to the Supervision Requirement be varied in relation to contact between the child and Ms W to once weekly, supervised and Mr S once fortnightly, along with Ms W.

30. On 17^th May 2006 a Children's Hearing provided advice to the Sheriff that the child be freed for adoption.

31. On 24^th October 2006 a Children's Hearing reached a decision to vary the Supervision Requirement to provide that the child live with the Petitioners. The child moved to live with them on 9^th November 2006 and has done so since then.

32. On 3^rd October 2007 a Children's Hearing reached a decision to vary the condition attached to the Supervision Requirement to provide for contact with Ms W and Mr S jointly fortnightly for one hour, to be supervised by the SWD.

33. On 6^th December 2007 a Petition to free the child for adoption was dismissed by the Sheriff at Aberdeen, who also referred the case to the Principal Reporter in terms of Section 54 of the Children (Scotland) Act 1995 in respect that Aberdeen City Council had failed to make adequate investigation into the possibility of rehabilitating the child to the care of Ms W or Mr S or either of them. The Interlocutor and Note attached thereto, Production 13/1/8 of process is what it bears to be and its terms are agreed.

34. On 20^th December 2007 a meeting took place of professionals involved in the child's care and planning. It was decided that an independent psychologist, Barry Fry, be instructed to carry out, inter alia, an assessment of Ms W's and Mr S's ability to care for the child in the short term and long term.

35. On 10^th April 2008 Mr Fry's report was considered at a Looked After Children Review Hearing, which decided that adoption was in the child's best interests.

36. On 17^th April 2008 a Children's Hearing reached a decision that the Supervision Requirement be continued. The Hearing discussed the possibility of rehabilitating the child to Ms W's care and considered that she would be unable to provide the same level of guidance and control and level of care which the child needs.

37. On 2^nd September 2008 a Children's Hearing reached a decision to appoint a Safeguarder to consider the issue of contact between the child and his parents and the issue of whether it would be appropriate for the child to be rehabilitated to Ms W's care.

38. On 23^rd October 2008 a Children's Hearing considered the Safeguarder's report, No. 13/6/13 of process, and reached a decision to vary the condition attached to the Supervision Requirement to provide for contact between the child and Ms W and Mr S once every six weeks for a minimum of one hour per session, supervised by the SWD. The Safeguarder's report dated 10^th October 2008, No. 13/6/13 of process is what it bears to be and the terms of same are agreed. Said report did not recommend reduction or termination of contact.

39. On 13^th November 2008 Ms W lodged an appeal against the decision of the Children's Hearing of 23^rd October 2008.

40. On 12^th December 2008 the Adoption and Fostering Panel recommended that adoption be pursued for the child, which recommendation was accepted by the Decision Maker of Aberdeen City Council SWD.

41. On 3rd February 2009 a Children's Hearing provided advice to the Court that they supported the application to adopt the child. The Hearing further decided to vary the condition attached to the Supervision Requirement to provide that the child may have contact with Ms W and Mr S only if requested by the child and such contact should be supervised by the SWD.

42. On 21^st May 2009 a Children's Hearing appointed a Safeguarder to consider the issue of contact between the child and Ms W and Mr S.

43. On 30^th June 2009 a Children's Hearing considered a report by the Safeguarder and reached a decision that there should be no variation to the condition relating to contact attached to the Supervision Requirement.

44. The child has had no contact of any kind with Ms W or Mr S since 7^th October 2008."

[8] I have made certain alterations to the joint minute in order to preserve anonymity. The joint minute also referred to various other documents and that they are what they bear to be. Although it did not agree that the contents of these documents were true and accurate.

Affidavits and Oral Evidence on Behalf of the Petitioners

[9] Counsel relied on two affidavits from witnesses who were not called by any party and who were not cross examined. These affidavits were from Dr. Elizabeth Myerscough no.21 of process and Robert Hurt no.22 of process.

[10] One further affidavit was lodged from a Mr Douglas Kennedy Jackson of Aberdeen City Council adoption and fostering services. Mr Jackson was led in evidence and spoke to the content of this affidavit which was number 20 of process.

[11] Oral evidence was led on behalf of the petitioners from five witnesses namely: the first and second petitioners; the said Douglas Jackson; Barry Fry, Psychologist and Eleanor McKee, family support worker.

The First Petitioner's Evidence

[12] The first petitioner gave evidence about formal undisputed matters in relation to the petitioners. He set out how the petitioners had been matched for the purposes of adoption with Child A and how they had initially met and then had increasing contact with him. He then went on to describe how Child A had come to stay with them in November 2006 and remained with them since then. He described how Child A was a lovely wee boy, imaginative, cheerful and happy. He said that he liked going out with the family dog, playing on his computer and watching television. He also got on well with the petitioners wider family. He was doing reasonably well at school. He explained that there had been certain disciplinary problems when he had first come to stay with them. He described these as temper tantrums. However, he and the second petitioner had worked as a team and set boundaries and there were now no real disciplinary problems. Child A he said was a child who liked to push boundaries but this did not create problems. Child A had settled well with them. He described the relationship between the petitioners and Child A as follows: he had claimed them as parents, he was very attached to them. Their relationship had grown to the extent that they now felt that he was their own wee boy.

[13] In relation to Child A's position regarding contact with the respondents he described how in the latter half of 2008 Child A began to express reluctance about going to see them. This reluctance had been expressed on a number of occasions. The child had said to him: "I've seen enough of them I want to get on with my own life". He described a situation where as time passed during the latter part of 2008 Child A became more and more anti-contact. He expressed his opinion that at the date of this hearing Child A's position as far as contact was concerned remained the same. It was his view that it was not in the child's best interests to be forced to go for contact. He felt that Child A was mature enough to express views on such a matter and it was his view that such views required to be taken account of. He said that he and the second petitioner had never bad mouthed the respondents. Rather they had tried to encourage Child A to go for contact. He described Child A as wanting an important piece of paper which would allow him to be our little boy permanently. He said there had been no particular difficulties up until mid 2008 with contact. All he could say about contact up to that date was that Child A was a little bit more fractious and difficult in the day or two before contact and tired afterwards. He had, however, formed the view that as time went by the contact became less important for Child A and of less value to him.

[14] As regards the future and what should happen so far as contact was concerned should the adoption order be granted it was his position that he was quite keen on letterbox contact in order that Child A knew his parents. He believed it important that he should know the respondents. He thought that such contact should involve the exchange of letters and photographs approximately one time per annum and that Child A should help in preparing the letter to be sent to the respondents and would see the letter from the respondents.

[15] In relation to whether such post-adoption contact should be the subject of a court order it was his position that it should not. He stated that he had had enough of social workers and courts and he feared that if there was a condition placed upon the adoption order there would be further litigation which would not be in the best interests of Child A. He said, and this was a common theme in the evidence led before me, that Child A was tired of seeing social workers and experts. He felt that the court should trust him and his wife to do what was in the best interests of Child A and that they would thus facilitate contact without the necessity of any condition.

[16] In regard to the failure of the freeing petition he said that the petitioners had played no real part in the freeing petition, although, at the last minute his wife had been asked to give evidence. They were, however, devastated by the result of those proceedings. They had considered for a very short time whether they should proceed to try and adopt Child A but decided they had to continue because of the bond which had developed between them and Child A. He pointed out that by that stage Child A was calling them mum and dad.

The Second Petitioner
[17] She also began by giving evidence relative to certain formal matters upon which she was not cross examined. Thereafter her evidence as a result of the line of questioning adopted by each counsel was dominated by the issues of contact, how this had come to an end and her attitude to post-adoption contact. She described the contact which had taken place with the respondents as being part of the child's routine and it appeared to be implicit in this evidence and from other parts of her evidence that the child she believed had gained little if anything from the contact with the respondents. She believed that problems had started to arise with the behaviour of Child A at nursery school in May/June 2008 and she connected this to the issue of ongoing contact. At or about that time the child told her that the respondents had said to him that they were happy that he should stay with the petitioners. She thought that this was clearly not the truth and she felt that it was unfair to the child that he should not know the truth about this matter. Accordingly she explained to him that the respondents wanted to take him back and they would like to look after him again. He had then said he did not want to go to contact. She said to him that it was a week before contact and he should think about it. In fact he went to the next contact. He went to one further contact and then he had stopped going. On that occasion he had said that this was the last time he was going. At or about the end of October 2008 the social work department were contacted about the child's position in relation to contact. In or about December 2008 Douglas Jackson, a social worker, spoke to the child about contact and he again said that he did not wish to go for contact. Her position was that between about June and December 2008 the child was thinking over and trying to make up his mind about contact and that he had eventually come to a view that he did not wish contact. It was implicit in her evidence that she was of the view that child A's position regarding contact should be respected as this was in his best interests. She felt that once he had made his decision about not wanting to go for contact and contact had in fact been stopped his behaviour had improved and that this confirmed her position that contact was not in his best interests. Her overall position was that she believed that contact compromised the child's attachment to the petitioners and affected his behaviour. She stated that nothing the petitioners had done had in any way affected the child's decision in relation to the issue of contact.

[18] As regards post-adoption contact she believed that letterbox contact once per annum would be appropriate. Her position was that although Child A at present was showing no interest in the respondents that that may not be the case in the future and accordingly to keep the connection between the Child A and the respondents it would be appropriate that a channel of communication be kept open through letterbox contact. In relation to such letterbox contact she made it plain that she would only show letters from the respondents to Child A if he were to mention the respondents and otherwise the letters would simply be kept until some future date. She believed that letterbox contact of once per annum would be appropriate.

[19] She did not wish a court order to be made relative to contact should an adoption order be pronounced. She said she would be disappointed if she had not shown by her evidence that she could be trusted to do what was in the child's best interests and accordingly would cooperate in letterbox contact (which in the course of her evidence she stated that she believed to be in his best interests).

[20] She felt regarding the starting of letterbox contact that the child at present needed to be left alone to feel secure and her position was that everyone should take a step back and leave him with the petitioners and not push this whole matter in his face.

[21] As regards the failure of the freeing for adoption she said she was furious about this.

[22] Looking to her whole evidence it was clear that she regarded herself as having a very strong attachment to Child A. She regarded him as part of the family and believed that the child thought of himself as very much part of the family.

Mr Barry Fry, Child Psychologist

[23] Mr Fry, was led as an expert witness on behalf of the petitioners. A curriculum vitae of his qualifications and experience is given in the opening pages of his second report 6/9 of process. He spoke to that report dated 5 January 2010 and to his earlier report of 2008 number 13/7/16 of process.

[24] In the first report he had been asked a number of questions and perhaps the best way to summarise his evidence is to look at the principal questions he was asked and his answers thereto.

[25] He was asked a question: Are Child A's mother and/or father in a position to be able to care for him both in the short and the long term? He answered that question as follows:

"185. In my view there is evidence to suggest that Child A's parents' ability to provide reparative care may be limited, and that their expectations that he would settle back into their environment with no difficulty.

186. The first requirement of Child A's rehabilitation would be his parents' recognition of and their sensitivity to the experiences that have created Child A's initial problems. The second is the motivation and skill to make the significant changes in their behaviour and management skills that will help Child A to overcome past deficits of care and provide him with a more stable and nurturing environment.

187. It is Child A's parents' joint expectation that he will slip back into their environment and care with little difficulty, because firstly, that is his wish, and because secondly, there was little or no justification for his placement in the first place.

188. In their comments, I gained the impression that his primary need was to divest himself of the effects of his time in care and as far as mother was concerned, to place a distance between himself and his carers.

189. In many ways I feel that mother sees her own and Child A's need as synonymous. Because she needs to have Child A back with her, she assumes that Child A has a similar wish. Her comment that he cares more for the dog Chessie than for his foster parents, is well wide of the reality of his situation. In many ways I feel that mother's perception of Child A's wishes are a projection of her own needs.

190. In what they have discussed with respect to this matter, I feel that Child A's parents are overlooking real and compelling needs that he will look to them to meet. Their awareness of his needs appears to be a superficial one."

[26] He was then asked to whom is Child A attached and are these healthy attachments? He answered that question as follows:

"225. Child A needs to feel that the adults who are close to him regard him positively and express an acceptance of, and an affection for him. He responds in kind.

226. From my work with him, I suggest that Child A has an attachment to his parents that to him appears to be secondary to the attachment that he has with his foster parents and of course, with Chessie.

227. Child A has expressed the wish to remain with his foster parents and this appears to confirm his primary attachment to them.

228. From observation and from the comments expressed by his foster parents, it seems to me that they have a clear idea of what they are trying to provide for Child A and why. Their relationship is structured and geared to meeting Child A's needs rather than his demands. I suggest that this is a healthy attachment.

229. His attachment to his parents is likewise a healthy one as Child A would see it. It meets his need for acceptance and affection. I must admit to some reservations about mother's attachment to Child A, which possibly expresses as much about her needs as Child A's. It seems to me that she does not have the insight into what has happened to Child A in the past and the appreciation of how her parental and personal behaviour has contributed to his past problems."

[27] He then moved on to consider what would be the effect on Child A of a move from his current carers (the petitioners)? He answered that question as follows:

"230. In my perception, based on my interviews and observations of Child A, he appears, as far as he is able to express it, to have established an extremely close and affectionate attachment to his foster parents and to have established a stable life routine over the time that he has been with them. Child A has also expressed a clear preference to remain with his foster parents.

...

233. If he was to be moved from his foster parents, he would on the basis of current data, be sundering what seems to be a primary attachment to his foster parents and his identification as a member of their family. I would expect there to be a likelihood of considerable immediate distress. As Child A mentioned, he would 'be sad'. I have no doubt that he would deeply miss his foster parents and may act out his distress on his return. This could obviously pose a direct challenge to his parents' ability to understand and manage his distress.

234. I have indicated the nature of the potential risks to Child A if he was to return to his parents. If these risks are borne out on his return, I would expect a significant deterioration in his emotional and behavioural stability, the effects of which, as I have mentioned could be durable, and such as to prejudice any subsequent placement."

[28] He then asked what would be the effect on Child A of remaining in the Social Work System for the rest of his childhood, either with his current carers (the petitioners) or with alternative foster carers? He answered that question as follows:

"244. Child A is at the point in his development where a final decision needs to be made on his behalf. He needs to either return to his parents' care, or to remain with his foster parents who are committed to adopting him."

[29] Finally he considered the question would it be in Child A's best interests for contact to be ongoing with his parents in the longer term if he is not returned to their care? He answered that question as follows:

"261. It seems to me that in Child A's case, and with mother's working relationships with social workers, her past volatile relationships with her partners and children and the indications of some antipathy towards Child A's foster parents, direct contact is contra-indicated. Given mother's expectations of the level and nature of post adoption contact, I have concern that she might seek to undermine Child A's attachment to his adoptive parents or advance her own claims to his loyalty. Letterbox contact would appear at this stage to be the most appropriate form of contact for Child A."

[30] Turning to his second report, 6/9 of process to which he spoke in the course of his evidence it was clear that his views had in no material way changed from when he prepared his first report. He gave clear evidence in support of the adoption order being granted. His view was that the adoption would having regard to the degree to which Child A had based all his hopes on an adoption give him the feeling of permanency and security which he was both longing for and undoubtedly required. Child A had said to him that he wanted to be adopted and this was the child's clear wish. It was clear on looking to his whole evidence that he believed that the petitioners could offer what Child A needed at present and in the long term. He was of the view that adoption would offer the child stability, permanence and security all of which he needed In relation to his views on the impact on the child if he was not adopted these can fairly be summarised by quoting paragraph 166 of his second report which was in the following terms:

"In the event that he was not adopted, I suggest that Child A would feel a deep distress, anger and despair."

[31] Turning to the issue of post-adoption contact he took as a starting point that it was generally accepted that it was beneficial for an adopted child to have contact with the birth parents post-adoption.

[32] However, he went on to say that critically it had to be borne in mind in the present case that Child A did not at present want to see the respondents. He believed this to be a genuine view of the child. It was his view that regard had to be had to that view. He advised that experience told him that children of Child A's age were well able to express a view on such matters. He described Child A's developmental progress as being well up to age limits and he was a very spontaneous and enthusiastic little boy who was very engaging with a high motivation for communication and social interaction.

[33] Against the above background of the child's stated position regarding contact he went on to develop his views on post-adoption contact. He described Child A as having an intense emotional commitment to his adoption. He was hanging out his flags to be adopted. He did have residual emotions arising from his time with his parents and therefore further contact with his parents when he defined himself as part of the petitioners' family would be traumatic for him. He wanted to be a full member of the petitioners' family and the child presently felt that this required him to cut himself off from the respondents. It was his position that the emotional attachment to the respondents had become detached. In these circumstances it was his strong view that at this stage there should be no direct contact between Child A and the respondents. It was his view that the necessary preconditions were not present for such contact to be in his best interests. In particular Child A had to want to see them before such contact would be in his best interests.

[34] Turning however to the issue of letterbox contact he believed that there should be some such contact. He believed that once Child A felt secure following adoption there would be benefit in letterbox contact for him. This would allow him to retain links with his birth family. Thus when he reached adolescence and began to ask questions about his birth parents and took an interest in them these questions could be answered and appropriate explanations given through the link that had been maintained between him and the respondents.

[35] What was meant by letterbox contact was not disputed by the experts in the case Mr Fry and Professor Furnell and in paragraph [147] when I set out how such contact should work and what it should consist of I believe I am reflecting their views.

[36] As regards frequency of such letterbox contact his view was as set out in his second report that once per annum would be appropriate. He was not against an increase in that at some later stage. However at present it was his position that only once per annum would be appropriate in that Child A did not wish any contact with the respondents in that he had embraced the petitioners' family totally. He felt that too frequent contact might reduce the security which Child A at present feels and would feel post adoption. He felt more frequent contact would be over intrusive for the child.

Douglas Jackson, Social Worker

[37] He spoke to his affidavit number 20 of process. He was the support worker for the petitioners and later became the child's social worker. He spoke to the ending of the contact at or about the end of 2008 between the child and the respondents. He reported that shortly before Christmas 2008 he spoke to Child A about contact and Child A made it clear he did not wish contact to be continued. He spoke to the second petitioner trying to persuade Child A to go for contact by saying that he was likely to get Christmas presents. However, the child would not go. This was not the only occasion around this time that Child A expressed this view to Mr Jackson. He felt the child had clearly expressed his views. Given the way that he had communicated these views and his general maturity he felt that the child was able to come to a view on this matter and that his view should be respected. He wished it to be made clear that in having regard to the child's views he and the petitioners were not allowing the child to make a decision as to whether he should or should not go for contact. What they were doing was having regard to his view in relation to this matter and then factoring that view into the question: what having regard to all of the relevant factors was in the child's best interest? He had gained no view that the petitioners had adversely affected the view of the child in relation to contact. He understood that the child had expressed this view to a number of people including other professionals over a period of time. He believed that this holding to the view and his consistency in expressing this view confirmed the genuineness of the child's view. As regards whether the second petitioner would assist in letterbox contact post adoption his view was that she would and he expressed that view as follows:

"The second petitioner has always assisted Child A in helping him feel secure and happy when going to contact and she would I believe encourage letterbox contact."

[38] He advised that he trusted the petitioners to do what was in the child's best interests. He described his position: as trusting them 100%.

[39] He explained that it was unusual to be both a support worker for the petitioners and the child's social worker. However, he felt that there were good reasons why this had occurred. What had happened was that Child A's previous social worker was no longer to continue as such and it was not felt appropriate given the child's views as to being introduced to further professionals that another professional should be introduced into his life. Mr Jackson knew him and therefore took over the job as his social worker. He had at no stage felt unable to perform any of his duties in relation to Child A because of his position as the petitioner's support worker. He felt that there had at no time been a conflict of interest.

[40] As regards the adoption order he was very much in favour of this being granted. He particularly referred to the love and affection between the petitioners and Child A and that the child clearly wished to be adopted.

Eleanor McKee

[41] She was a family support worker and gave evidence in relation to supervising contact which the respondents had exercised to Child A. I have not detailed her evidence in that I did not find it to be of any particular significance in relation to the issues before me.

The Evidence on behalf of the First Respondent

The First Respondent

[42] She described her present position that she had the care of one of her children namely L.R. She also shared in the care of another of her children namely J.R., who spent approximately one half of the week with her. She was able to care for them properly. She did not at present live with the second respondent although they remained close friends. She described that at present and for some time she had been mentally stable and that her psychiatrist only required to see her every 3 months. The psychiatrist was presently happy with her progress. She thus described herself as being in a different position from when the Child A had been initially removed from her.

[43] She described how she had regularly attended contact with Child A since he was removed from her until that had been stopped. She had been consistent in wishing his return to her and in applying for his return. She felt that the Social Work Department had never at any stage given her a proper opportunity to get Child A back. Looking to her whole evidence it was her position that the Social Work Department at all material times had intended that the child should be adopted. She was particularly distressed that following the dismissal of the freeing for adoption petition the Social Work Department had in her opinion not properly reconsidered the position.

[44] Her opposition to the child being adopted (although she accepted he was settled and happy with the petitioners) was stated to be based on the child's wish to be with her and his brothers. It was her position that the child did in fact wish to see her. She felt that she could offer the love and security of a natural mother to the child. She said that she found it difficult to agree to the adoption when Child A needed to be with her and she needed to be with him. She continued to refuse to consent to adoption although she was aware of the positions of Mr Fry and Professor Furnell who was her own expert to the effect that it was in the best interests of the child that he should be adopted.

[45] If the adoption order was granted she was anxious to have letterbox contact. As regards frequency of contact she thought six times per annum was too many. She thought that letterbox contact at or about his birthday, Christmas and on one other occasion during the year would be appropriate. At one point her position was that the petitioners would not operate post-adoption contact however she later expressed the contrary view that they would in fact operate post-adoption contact. If an adoption order was granted she wished a condition to be imposed regarding contact.

L.H
[46] L.H. is the daughter of the first respondent. She said that she was now living in England. She described being brought up by the first respondent for material periods of time. For part of her childhood she had been brought up by her stepfather. She described the first respondent as a good mother who kept her house clean and tidy. She thought that her mother was well able to look after J.R. and L.R. who were her half brothers.

Professor James Furnell

[47] Professor Furnell was led on behalf of the first respondent. No detailed report was produced which had been prepared by Professor Furnell. The only document produced which was prepared by Professor Furnell was a short letter number 7/1 of process. This letter dealt solely with the issue of frequency of post-adoption contact. This was spoken to in the course of evidence by the Professor.

[48] Professor Furnell is well known in these courts and has a considerable reputation as a child psychologist. He has considerable experience in dealing with matters of the type which formed the subject of this case.

[49] As regards the question of the granting of the adoption order he said this:

"Perhaps, through a series of less than ideal circumstances it seemed to me inevitable (that Child A) should remain in care permanently with (the petitioners) and it was inevitable that he should be adopted. His primary attachment was to the petitioners. He was happy, content and settled in their care. Given his very disruptive early years and the risk emotionally to the child of visiting uncertainty upon him he was inevitably drawn to the conclusion that it was best in his interests for him to stay permanently with the petitioners (and thus be adopted by them)".

[50] As regards post-adoption contact it was his position that it was generally believed to be in the interests of an adopted child for there to be such contact. It was his position that it maintained the attachment to both birth parents. It was of importance particularly in a child such as Child A who knows his birth family. He described it as servicing the relationship. Normally an adopted child particularly at adolescence would wish to know where he came from. If there had been post adoption contact there would be no difficulty caused by the arising of such questions. It was his position that there was a fairly constant stream of adopted children, appearing in adulthood in psychologists' offices with problems where there had been no such contact.

[51] He was of the view that at present Child A did not wish contact. He believed that this flowed from the long drawn out process in deciding as to whether he should be adopted. He felt that his reaction to contact with the respondents resulted at least partly from his seeking to make clear what he wanted i.e. to be adopted. He was expressing by his refusal to see the respondents anger at the whole system.

[52] He felt that there could at present not be face to face contact given the child's views. He felt there needed to be a final decision for the child and thereafter a cooling off period. He believed that thereafter contact but on the basis of letterbox contact could be started.

[53] As regards the issue of frequency he felt that an appropriate number would be 3 to 4 per annum. He made it clear how difficult it was to give a precise figure in relation to the question of frequency and said that there was a balancing act which had to be performed. He stated the importance of not placing too great a burden on the adoptive parents in relation to post adoption contact. He felt that it was a matter for the court whether contact should be the subject of an order. He accordingly expressed no view in relation to this matter.

The Evidence on Behalf of the Second Respondent

The Second Respondent

[54] He advised that he was presently unemployed. He lived alone. He stated that he had always taken opportunities to have contact with Child A. When this was stopped he was confused, angry, gutted. He did not believe the views expressed by the child relative to contact were genuine and he felt his views had been influenced by the petitioners. He felt that if there was contact the child would want to be with the respondents. He had contact with his other children and this worked well. His former partner in her evidence (which was in short compass) confirmed that contact had been agreed amicably between them and worked well. She generally spoke to the second respondent being a good father.

[55] He described the decision in the freeing application as a hollow victory as there had been no proper reassessment carried out by the Social Work Department.

[56] As regards the adoption petition it was his position that it was in the child's best interests for the moment to remain where he was. That thereafter through gradually increasing contact, the child would eventually be returned to the respondents' care. Despite the views of Professor Furnell and Mr Fry he continued to oppose the adoption order. He opposed the adoption order as the Social Work Department had not truly given him and the first respondent an opportunity to recover the child. He said that there had not been a level playing field. He said that the main problem he had with the adoption was the issue of contact.

[57] If the adoption order was granted he was anxious for contact. He did not believe that the petitioners would facilitate this. He wished a condition to be imposed.

M.S.

[58] The second respondent's mother, M.S., was led. She spoke to looking after another of the second respondent's children, namely, Lee since he was 4. She described how the second respondent had kept in contact with Lee and that he had been a good father.

Submissions

Petitioner's Submissions

[59] Counsel for the petitioners produced written submissions (no.29 of process) to which she adhered in oral submission. She submitted in respect of the child that an adoption order should be granted in terms of the Prayer of the Petition authorising the petitioners to adopt the child and make the usual directions in relation to the entry in the Adopted Children Register and Register of Births. Further she submitted that it should be determined that the child should 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 Act should be refused not because the petitioners were opposed to indirect contact but because the condition was unnecessary and not in the best interests of the child.

[60] Counsel set out the statutory structure which was not in dispute. She referred to the nature of adoption proceedings which were sui generis for the reasons as outlined by Lord President Cooper in J and J v C's Tutor 1948 SC 636. She referred to the two stage test as explained by Lord Hope in Lothian Regional Council v A 1992 SLT 858 at 862. 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) (in this case: the unreasonable withholding of agreement in terms of 16(2)(b)) has been established and second whether an order dispensing with the parents' agreement to adoption ought to be made having regard to Section 6.

[61] As regards the appropriate stage for looking at the reasonableness or otherwise of the decision of the respondents to withhold consent she submitted under reference to L v Central Regional Council 1990 SLT 818 per Lord Caplan at 823 and Re W (an infant) 1971 AC 682 per Lord Hailsham at 698 that it was the date of the making of the order. She thus submitted that Sheriff Cowan's decision to dismiss the freeing application some two years ago was of little or no significance as what this court had to consider were the circumstances pertaining now.

[62] As regards the approach to whether a parent was withholding his or her consent unreasonably she submitted under reference first to Lord Reid in A v B and C 1971 SC (HL) 129 at 141 that the test was an objective one. The question was: would a reasonable parent have withheld consent? Secondly under reference to Re W (an infant) she submitted that the court must consider whether a refusal falls within a range of reasonable responses. Thirdly per the Lord Justice Clerk in West Lothian Council v M 2002 SLT 1155 at 1162 the court must have in mind in looking to the reasonableness of a parent's decision the standard of a hypothetical parent who has in mind the paramount consideration set out in Section 6 of the Act namely: the welfare of the child.

[63] The above legal analysis as to the approach which the court should take in considering the legal issues before it when considering an adoption order was to no extent disputed on behalf of the respondents.

[64] She then submitted that the following circumstances were of relevance in considering whether the two parts of the test had been satisfied:

- Reasons for child being under Supervision Requirement - Grounds for Referral 13/7/1 (November 2003)

- Period child accommodated - 24^th August 2003, returned to Ms W's care for one night on 15^th November 2003, accommodated until 6^th April 2005 (Joint Minute, paragraphs 7 - 13). Accommodated again on 1^st March 2005 and since then. (Joint Minute paragraph 18).

- Reasons for 'final' accommodation - Dr Myrerscough - Joint Minute, para 16; Affidavit, 21 of Process and Reports referred to therein, 13/9/14 and 13/9/23.

- Child has lived with the Petitioners since 9^th November 2006. (Joint Minute paragraph 31)

- Evidence that the first respondent had taken appropriate medical advice regarding her mental health issues and that they should not be determinative of any childcare aspects.

- Both Respondents attended contact sessions with the child who enjoyed the sessions.

- Decision of Sheriff Cowan, particularly failure of Local Authority in carrying out a proper parenting assessment of the first respondent.

- Both parents have significant input into the care of their other children, the first respondent having residence of one of her children since October 2008. None of those children are under any supervision.

- Clear evidence that Child A wants to be adopted.

- Douglas Jackson and Curator

- Barry Fry, Expert witness instructed by Aberdeen City Council initially and then by Petitioners and James Furnell, Expert Witness instructed by the first respondent are both of the opinion that an adoption order in favour of the Petitioners is in the child's best interests. (Barry Fry's report - 6/9 - If not adopted, Child A would feel a 'deep distress, anger and despair', paragraph 166. If he was to be returned to his mother's care, the impact on Child A 'would be nothing short of disastrous', paragraph 175.) James Furnell - inevitable that Child A should stay with the Petitioners, inevitably should be adopted by them. Child clearly happy and settled with them. Risks for child if move.

[65] She then submitted that having regard to the foregoing and taking into account that the paramount consideration was Child A's welfare throughout his life, that part one of the test was fulfilled and that the respondents were clearly unreasonably withholding their consent to the adoption order.

[66] She referred me to the following passage in Aberdeenshire Council v R 2004 Fam LR 93 per Lady Smith:

"It is difficult to envisage a case where, if the court determines that consent is being unreasonably withheld, it will not proceed to dispense with consent, almost as night follows day, making the transition to the second stage appear to be illusory. However, it is clear from the authorities that determination of the application must be approached in two stages, even in such a case."

[67] She submitted under reference to that passage, that it was her position that on the same factors upon which she was relying in relation to stage one I should hold that stage two had been satisfied.

[68] As regards contact and attaching a condition relative to contact to the adoption order she emphasised under reference to B v C 1996 SLT 1370 that such conditions were only appropriate in rare and exceptional circumstances. In addition she submitted that in considering this issue I should have regard to the purpose of post adoption contact which was to allow a child to understand his family background and why he is a member of the adopter's family. She emphasised that it was inappropriate to make a contact order of a kind that might be made where a family unit was being broken up. Lastly she stressed that it was for the adopting parents, not the court, to decide what was appropriate for the child's welfare following the making of an adoption order. The foregoing submissions were made under reference to FB and AB, Petitioners 1999 Fam LR 2.

[69] It was her position that there was no dispute relative to the view expressed by both experts that as a generality letterbox contact was in the best interests of a child who was to be adopted. Nor did she dispute that in the instant case the evidence was such that letterbox contact was in the best interests of Child A. However, she submitted that there was no reason on looking to the whole evidence and in particular having regard to the evidence of the two petitioners, to suggest that there were exceptional circumstances justifying the imposition of a condition regarding contact.

[70] It was her position that having regard to the whole evidence I could trust the petitioners to put in place letterbox contact and to ensure that such letterbox contact continued to take place throughout Child A's childhood. She emphasised that in the evidence of Mr Jackson and Mr Fry they had both stated that they trusted the petitioners to do this. Her position was that the evidence of both petitioners supported the independent evidence that I could trust them to do this.

[71] As regards the frequency of such letterbox contact she submitted that I should prefer the evidence of Mr Fry to that of Professor Furnell and that such letterbox contact should take place once or twice per annum rather than three to four times per annum.

Submissions for the First Respondent

[72] Written submissions (no.30 of process) were also lodged on behalf of the first respondent which counsel adhered to in the course of her oral submissions.

[73] Her primary submission was that I should refuse the Prayer of the Petition. It was not disputed by counsel that the expert witness for the first respondent, namely: Professor Furnell was of the view that Child A should remain with his current carers and that adoption was appropriate to provide him with a position of permanence. However, she emphasised that this opinion was reached as he said "perhaps through a series of less than ideal circumstances".

[74] She went on to submit that I should hold that the withholding of consent was not unreasonable. She submitted I should have regard to and accept the first respondent's evidence. She relied on her evidence that she was now fit to have care of her other children, but not Child A, which seemed to her absurd. She had described in the course of her evidence the suitability of her present accommodation and the stability of her mental health for some considerable period of time. She spoke in the course of her evidence about her concerns over the cessation of contact, where contact had apparently been proceeding well, and her lack of faith that correspondence sent to Child A would be given to him. She expressed concern that Child A did not know his extended family. Counsel described all of these concerns as being reasonably held.

[75] She went on to say that the first respondent had stated in her evidence that she accepted that Child A was settled with the petitioners and she would be happy for him to stay with the petitioners on a temporary basis and that she appreciated contact would have to be built up and that she would do nothing to jeopardise his wellbeing. As I understood it she urged me to accept that this showed the reasonableness of her refusal to consent to the adoption order.

[76] She then turned to the history of the case and submitted that there was clear evidence throughout of delays and failures on the part of the Social Work Department since the child was taken into care in March 2005 which supported the first respondent's position of not agreeing to the adoption order being made. In particular she relied on Sheriff Cowan's note production 13/1/8; admissions by Mr Jackson of problems at the hands of the Social Work Department, albeit he was careful to repeat on several occasions that he had little or no knowledge of the previous decisions made and actions taken together with the petitioners evidence of fury at the situation regarding the freeing for adoption proceedings in December 2007. She submitted that this history of failure and the delays which followed on from it in taking any action were supportive of a view that the child's wellbeing and need for security had not been properly focussed upon by those that had the statutory responsibilities for his care. She then submitted that it was not unreasonable for the first respondent to distrust the present position and to withhold her consent.

[77] Looking to the foregoing as a whole she submitted that the first respondent's reasons for refusing consent were properly and soundly held and based on a proper concern for the welfare of the child.

[78] Failing my finding in her favour in relation to her primary submission she submitted that a condition in terms of Section 12(6) of the Act should be imposed.

[79] In submitting that there should be such contact post adoption she relied on the evidence of the two experts that such contact would be in the best interests of the child.

[80] In submitting that there should be a condition attached to the adoption order she relied particularly on the position of the second petitioner regarding contact as set forth in her evidence.

[81] She in particular submitted that the second petitioner's evidence regarding contact was inconsistent. She said that she would accept letter-box contact once a year, but her understanding of what it involved was vague. She considered it was an exchange between two sets of parents, rather than between the natural parents and the child. She moved within her evidence from agreeing that contact was in Child A's interests, to a position that it was only if or when Child A instigated a curiosity or a query as to his natural parents that he should be advised that correspondence had been received. She had been forceful in her determination to stop direct contact at a time when Child A's legal position and future remained in limbo, Although she denied this, her present position regarding contact, under the challenge of cross-examination, seemed very close to her statement in her evidence to the Sheriff in the proceedings of December 2007 as noted in Sheriff Cowan's note, (process no. 13/1/8) para 21 regarding contact 'he should be allowed to move on, it would be a hangover from past times'. Her evidence suggested a tendency by her for her own interests rather than Child A's to be the premier consideration, she appeared fiercely possessive of him, and tended to sublimate Child A's interests with her own, for example "it would be intrusive for Child A and me", "his view is that he does not want contact, so it is unlikely to change post-adoption".

[82] Taking her evidence as a whole, she submitted that there must be concern that she was paying lip-service to the concept of contact at this stage, but once the proceedings had ended, when she was left in sole control, her underlying and perhaps instinctive wish to disregard or put out of mind the parts of Child A's life that do not relate directly to her may prevail.

[83] Given the reasonably held concerns of the First Respondent as to the likelihood of Child A not being made aware of the correspondence from her at least for a considerable period, and the second petitioner's own underlying ambivalence about contact between Child A and his natural parents, it was not sufficient to leave the Petitioners in sole charge of contact, which would be the case if no condition was made when making the order.

[84] As regards the frequency of that contact she submitted that Mr Fry only had limited experience of the use of letterbox contact. On the other hand Professor Furnell with his very considerable experience, was clear that it was necessary to permit a frequency that was reasonable to maintain a channel of communication. He suggested in the course of his evidence that annual contact was not sufficient and that three to four times a year would be a reasonable frequency without impinging on the life of the adoptive family. She thus submitted that contact should be three to four times per annum. She did not at this stage seek on behalf of the first respondent direct contact.

Submissions for the Second Respondent
[85] Counsel again lodged written submissions to which she adhered in the course of her oral submissions. These are numbered no.31 of process.

[86] Her primary position was as with the first respondent that the adoption order should not be granted. In support of her said submission counsel relied on the following:

1. The 'failed Freeing for Adoption Application': The local authority's application was soundly rejected on what has been called a legal technicality. What is clear from the Sheriff's note [process no. 13/7/1] is that she had the benefit in 2007 of hearing evidence on the issues before her although the evidence was not concluded. Her criticism of the Social Work department in Aberdeen is scathing. This is far from usual. She is critical of their disregard for the interests of the parents, the first and second respondents and in turn, the interests of the child. She was concerned about the evidence led from the second petitioner and her apparent reluctance to confirm that Child A would continue with her as a long term placement if he was not freed for adoption. It is of note that there has been an apparent change in the second petitioner's position on this. The first petitioner did not give evidence in the Freeing Application but described how the couple had 'a wobble' after the application was dismissed.

2. The interlocutor of Sheriff Cowan dated December 2007: there is evidence from both first and second respondent as to what the dismissal of the freeing meant to them. They thought that the first respondent's ability to parent would be assessed with a view to Child A being returned to her care eventually. Clearly, that is not what happened and it seems clear from the evidence of Mr. Barry Fry and also the second petitioner that the report was to be something other than assessment of the natural parents and their ability to care for and have their child rehabilitated to them.

3. The role of the Social Work Department: Their actions were high handed and arrogant. There has been no evidence to suggest that the Social Work Department in Aberdeen have an alternative view to that expressed by the Sheriff in her Note. Despite the terms of the Sheriff's interlocutor, it could be argued that the remit of Mr. Fry was not of a parenting assessment. Rather than being given an opportunity to assess the child in situ with the first and/or second respondent, as Mr. Fry did in another case, no such opportunity to do this was given. The report by Barry Fry was not a parenting assessment. Again, the parents were not given an opportunity to build on the initial report provided by Professor Furnell. No practical steps were taken to facilitate that. In due course, the contact was reduced again.

4. Contact: the way in which contact between Child A and the Respondents was severed. In this regard she made reference to the evidence from the second petitioner and Douglas Jackson, the social worker as well as the credence given by them to the views of Child A aged 5 years, 6 months and 18 days on 18^th December 2008. It seems that although Child A could not decide on all of the other areas in his life, such as when he went to the doctor or the dentist or whether or not he went to school, he knew his own mind strongly enough to allow him to decide not to go to contact. Given the second petitioner's evidence that she wanted contact stopped, it seems that that may have been the reason for allowing Child A to decide whether or not he wanted to go to contact. There was she submitted clear evidence that Child A enjoyed contact with his parents and interacted with both of them during these sessions. What is beyond doubt is the commitment of his parents to attending all of the contacts. In her submission, the Social Work Department and the second petitioner should not have put the onus on Child A to decide upon contact. Likewise the view of a 5 year old ought to have been investigated by someone other than Mr. Jackson who was clearly identified by the LAC Review Meeting on 9^th December 2008 as being compromised as he was filling a dual role with the adopters and Child A, in seeking Child A's views. It was her submission that he was compromised in any event, by virtue of the dual nature of his post.

5. The actings of the second petitioner and her intention to have contact reduced to nil. She gave evidence that she decided to tell Child A straight that his parents were fighting to get him back and, in so doing, contradicted the child's understanding that his parents were happy for him to stay with her and her husband. Counsel submitted that one can only surmise on the effect that this may have had on the child. It is of note that the second petitioner was not prepared to accept that by speaking to the child in this way she had subsequently influenced his position on contact and contributed to him being reluctant to continue attending contact. The first petitioner also would not accept in evidence that he or his wife had influenced Child A and his views on contact. Given his occupation as a teacher, and the fact that in that role he would certainly be influential in the views which his students may reach, it seems strange that being in loco parentis within his own home, he does not accept the possibility of influencing Child A on this topic.

[87] In addition to the above submissions counsel looked at the evidence of certain witnesses and commented as follows in relation to their evidence.

[88] The first petitioner:  clearly a fair and reasonable witness. In some respects, given his job commitments, he is a subsidiary figure to the role played by the second petitioner. He gave evidence that he tried to persuade Child A about going to contact. He seemed a genuine and reasonable man. His view was that Child A knew his own mind and did not want to go to contact. He did not think that they had influenced Child A about contact. He did not think contact was in Child A's best interests but did not really explain why he held this view. In her submission, he was not prepared to consider that contact may be in Child A's best interests as he was aware of his wife's views on contact.

[89] The second petitioner:  in contrast to her husband, this witness was dogmatic, rude and aggressive in giving her evidence and in getting her point across! She was emphatic that contact by the end of May or the beginning of June 2008 would have to stop. When giving her evidence on this, she seemed to be speaking to herself! "This had to stop." She was decisive in her determination that she wanted to sever this contact before Child A went to school. Her reasoning for this it was submitted did not bear close scrutiny. She decided that he had become "cock of the hoop" after his 5^th birthday on 31^st May 2008. He had been cheeky at nursery. All of this behaviour was put down to the effect that contact was having on him. There was no evidence from anyone else to support this stance including her husband, the nursery staff or from any other social work staff. She put her own needs and wishes over the interests of the child and his parents. She gave scant regard to the reasons for on-going contact. She made references to Child A's need for a passport to go to Euro Disney as a further reason for the petition being granted but acknowledged that she or her husband had not requested the consent or co-operation of the parents in this regard.

[90] The first respondent: in contrast the Court has heard from the first respondent. She had been ill and had not taken her medication out of regard for her baby, Child A. She gave evidence explaining how the Social Work Department in Aberdeen became involved in her life when her relationship with her former partner (not the second respondent) was breaking up. This appears to be the first time that the social work services had been present in her life. She subsequently had her medication changed and continues on this changed medication and seemed well. She appeared reasonable when giving her evidence. She clearly had her life together. She had the care of two of her other children. She was looking after her family. She had been told that she had post natal depression and had sought help from the doctor and the social work department as she could not cope with Child A. She had great insight into the whole situation. She generously stated that the fault did not lie with the petitioners. She took the view that they had been misled by the Social Work Department. Her son was "not up for adoption" despite what the Social Work Department had told the petitioners. She gave evidence that Alan Ross, social worker, who gave evidence in the freeing application, had told her that Child A was to be adopted. This evidence was not contradicted. She accepted that Child A was happy and doing well. She accepted that in the circumstances he had moved on. She confirmed her commitment to post adoption contact if the petition was granted. She was clear in this. Understandably, she would be reluctant to visit the Quarry Centre in Aberdeen where her earliest contacts with Child A as well as her dealings with the social work department had taken place.

[91] The second respondent: he gave his evidence she submitted in a very straightforward manner. He was adamant that he wanted to oppose the adoption given what had happened in the past. He had been there for Child A's birth and had lived in family with the first respondent and Child A both in his house and in hers. Despite his presence and the parental agreement, he was never assessed by the social work department on this ability to parent Child A. Clearly, the evidence led for him from his mother, Mrs S and his former partner, Ms. P, is that he has had care of his children throughout their lives and for 10 years lived in family with Ms. P. He shares the care of their children L and C at weekends. He attended contact with Child A and was committed to doing so. The evidence from Ms. McKee, and Mr. Barry Fry was that there was clearly a relationship between them and that Child A enjoyed the contact which he had with the second respondent. In the "snapshot" which Mr. Fry witnessed during contact, Child A clearly interacted with the second respondent. The safeguarder who reported on 10^th October 2008 confirms this too. Understandably, the second respondent is aggrieved about the cessation of the contact with his son. His position is that Child A was too young to be given the choice over stopping contact and not seeing his 'birth' parents. He also had sufficient insight to state that living with the petitioners had made it difficult for Child A to reconcile the interests of the different adults. He felt that Child A had been influenced by the petitioners. Counsel submitted that rather simplistically but, clearly genuinely, he made the point that if everyone could be brought together in some sort of a party atmosphere that would be a starting point to Child A getting reacquainted with his larger family. She submitted that it was a genuine attempt by him to try and find a way ahead making the point that his belief was that Child A still wanted contact but had decided not to talk about it out of his care and concern for the second petitioner. She submitted that whilst the Court may deem his views unrealistic, he at the very least is anxious to preserve some contact with his son. "If there is a will, there is a way" springs to mind. The difficulty here may be the lack of will and tolerance on the part of the petitioners in facilitating contact.

[92] In relation to Child A's position should I not grant the adoption order counsel stated as follows in the course of her submissions:

[93] Clearly, Child A is now settled with the petitioners and will remain in their care in the long term. If the court holds that his parents have not withheld their consent unreasonably, then it was her submission he would continue to be cared for by the petitioners.

[94] If I were not with her in relation to her primary submission then it was her position that a condition should be imposed on the adoption order to the effect that there should be indirect contact. She did not seek in the whole circumstances brought out in the evidence direct contact. It was her position that as regards the frequency of such contact I should prefer the evidence of Professor Furnell to that given by Mr Fry. She submitted that I should prefer the evidence of Professor Furnell for broadly the same reasons as those advanced on behalf of the first respondent.

[95] As regards the issue of an imposition of a condition she submitted that I should. Her reasons for so submitting were based on her analysis of the evidence of the second petitioner to which I have already made reference. She submitted that having regard to that analysis I could not place my trust in the second petitioner to put in place and to continue letterbox contact. It was her position that post-adoption unless there was a condition it would wither to nothing given the position of the second petitioner.

Discussion
[96] In the course of evidence reference was made to the interlocutor and accompanying note of Sheriff Cowan in the petition to free the Child A for adoption and the criticisms made therein of the Social Work Department of Aberdeen City Council. It was clear that both respondents felt that the attitude of the council as set forth in the terms of the said note was but one example of a general way that the council and the social workers employed by them had acted towards them throughout the life of Child A. It was their general view that both prior to the interlocutor of Sheriff Cowan and following that interlocutor they had at no point been treated fairly by the council and their social workers. They were of the view that their ability to care for Child A had never been properly investigated by the department and its social workers, that their position had never been taken account of and that broadly speaking there had at no stage been a level playing field.

[97] I do not regard it as part of my task in the adoption proceedings to identify historic failures and to allocate blame. Rather what I have to look at in the context of these proceedings is the situation as it currently presents itself. On reaching his view that an adoption order was in the child's best interests Professor Furnell accepted that:

"We are where we are".

and it was based on the current position that he founded his view as to whether an adoption order was in the interests of the child.

[98] Having stated that I must look at the position as it is now I accept that the background to which I was referred and the very long drawn out process which is set out in terms of the joint minute is of some relevance:

[99] First, it is hardly surprising that the petitioners to some degree and the respondents to a very large degree have lost confidence in the Social Work Department and certain of the social workers who were involved at various stages. This was very clear in the evidence of both respondents. It was clear that both felt very let down by the Social Work Department and this affected to a material extent their views on consenting to the adoption. Neither the petitioners nor the respondents wish any further involvement with the Social Work Department.

[100] Secondly, a lack of trust has developed between the petitioners and the respondents.

[101] Thirdly, Child A has become increasingly unsettled and unhappy as this process has dragged on without any final decision being made in relation to his future. This unhappiness has manifested itself in two ways. (a)  He has become increasingly unwilling to see social workers and other professionals who have been involved in his case. (b)  More importantly it has on the evidence become a factor in his not wishing as at the date of the hearing and for some considerable time prior thereto to have direct contact with the respondents.

Disputed Issues

Adoption Order

[102] I now turn to the merits of the adoption order in relation to Child A. The law which falls to be applied was not in dispute and is set out in the Act. It is not in dispute that the test that falls to be applied is a two stage one (Lothian Regional Council v A). First I must decide whether one of the grounds in Section 16(2) of the Act has been established. In this case the petitioners now rely solely on Section 16(2)(b), namely: that the respondents are withholding agreement unreasonably. In approaching the first part of the test I have borne in mind the observations of Lord Reid in A v BC, Lord Hailsham in Re W and the Lord Justice Clerk in West Lothian Council v M.

[103] I take as my starting point in my consideration of the first part of the test the evidence of the two expert witnesses Mr Fry and Professor Furnell. I found both of these witnesses of considerable assistance. Both of these witnesses had considerable experience and expertise in the areas upon which they gave evidence before me. Both of them had been involved in this case for some time and were very familiar with the whole facts and circumstances thereof. They both gave what I regarded as very carefully considered, well supported and insightful evidence in relation to the issues before me. I was particularly impressed by both witnesses. There was no expert evidence which countered their views regarding the appropriateness of the adoption of the child. Both emphatically supported the adoption of the child by the petitioners.

[104] Both experts were clearly of the view that the child was happy, content and settled with the petitioners. Both made it clear that the child required certainty in his life and that the only way that this could be provided would be by his being adopted by the petitioners. He was described by Mr Fry as hanging out his flags to be adopted and that he had defined himself as part of the petitioners family. He in addition stated that the child identified himself as the petitioners natural son and that was what he wanted to be. Professor Furnell described him as having his primary attachment to the petitioners. Professor Furnell said that any alternative to adoption would present such a risk emotionally to Child A that he was inevitably drawn to the conclusion that it would be in the best interests of the child to be in the petitioners' care permanently. Thus it was his position that it was in the interests of the child to be adopted by them.

[105] It was Mr Fry's position that if the child were not adopted this would be a disaster. The conclusions that it was in the best interests of the child to be adopted were supported by the views of the curator and reporting officer in her reports.

[106] There was accordingly a very substantial body of independent and expert evidence that it was in the best interests of the child to be adopted.

[107] As well as the foregoing evidence I also heard from the two petitioners. I found them both to be impressive witnesses. Having regard to the evidence which they gave and the manner in which they gave it I was clearly of the view that they had formed a considerable attachment to Child A and that he had equally formed a very close bond with them. It was clear that they both loved as a son Child A. The whole of the second petitioner's evidence and the way she gave her evidence showed an almost ferocious maternal bond had been formed between her and Child A. It was clear from their evidence that they had provided a good, loving and secure home for the child and that their parenting skills and love had resulted in the resolution of the emotional problems which had subsisted prior to the child being taken into care and during his early days in care.

[108] Lastly the evidence of Mr Jackson was again very much in favour of the child being adopted.

[109] Against the background of that evidence I turn to the reasons advanced on behalf of the respondents as to why the child should not be adopted. A number of bases were advanced by them in the course of their evidence which as I understood it were said on their own or when taken cumulatively to show that their position was one which could reasonably be taken by a parent having regard to the paramount consideration of the welfare of the child.

[110] First it appeared to be argued that at some future and uncertain date the child could be returned to the care of the respondents in particular the first respondent. This position appeared to be advanced on the basis of the improvement in the first respondent's mental health, which had now stabilised and her ability to look after children as shown by the fact that she had full time care of one of her children and the part time care of another child. It was her position that her ability to look after Child A had never been properly investigated by the Social Work Department.

[111] The above position and the general position of the respondents in my judgement took no account of the clear evidence that this child required certainty and not a further period of uncertainty where he was not a full member of the petitioners family. It failed to take account of his position that he wished at present to have no further contact with either of the respondents. It took no account of his difficulties with continuing to have to deal with social workers and experts which would inevitably result if he were not adopted. It had in addition no regard for the child's wishes to be adopted and the likely affects on the child if he were not adopted. This view seemed to lack insight and have no real regard for the best interests of the child but rather to concentrate on the understandable wishes of the respondents that he should return to them. In my view a reasonable parent would have looked to what was in the child's best interests and not to a vague possibility that he could be returned at some future date to the care of the respondents. In my view a reasonable parent would have looked to the considerable distress that would be caused to the child if he were not adopted and were not put in a position in which he felt secure, which on all the evidence would only be achieved by his adoption by the petitioners. Rather what the respondents were offering was a further lengthy period of uncertainty. It was the position of both respondents that should the adoption order not be granted the child would at least for some period of time and perhaps a considerable period of time remain with the petitioners. It was then hoped that he would return to the respondents. Such a situation in my judgement could on no basis in the evidence be said to be in the child's best interests and accordingly the respondents' views were not ones which a reasonable parent could have arrived at.

[112] The second broad line for not consenting particularly on the part of the first respondent appeared to be that: she couldn't bring herself to consent to the adoption i.e. she just could not give him up. I accept that this is an understandable position, in that it must be enormously difficult for any parent to consent to his or her child being adopted. However, although this position is perhaps understandable it is nevertheless not a reasonable position where it is clearly in the best interests of the child to be adopted, as on the evidence it is in the present case. In these circumstances in my judgement the reasonable parent must despite his or her feelings look to the interests of the child and not his or her own feelings about the difficulty in the parental relationship with the child being severed. I regarded this position taken up by the respondents as falling well outwith the range of reasonable responses.

[113] The third ground was the argument that in the past the respondents had not had a fair chance to get the child returned to them and that for this reason the child should not be adopted. This position in my judgement had no regard for the position as at the present date, to which I must have regard. It had no regard to what was in the best interests of the child at this time. Accordingly, although, again, it is perhaps understandable that the respondents are genuinely upset regarding the perceived failings of the Social Work Department in the way that they have treated them, this was something which the reasonable parent had to put to one side. The reasonable parent had to have regard to what was in the child's interests at this time and this, the respondents were in no sense doing. Thus they were acting in a way which fell outwith the range of reasonable responses by a parent.

[114] Fourthly, it was the respondents' position that the child was not expressing his own views but was giving the views of the petitioners by whom he had been either deliberately or unconsciously influenced. Thus the position put forward in the evidence that he did not wish contact with them and that he wished to be adopted were not his true positions. Rather as I understood it their position was that he in fact wanted to be with them and with his half siblings.

[115] The experts' evidence and the whole evidence in the case other than from the respondents was that these were genuinely expressed views on the part of Child A. I felt that although the respondents were genuine in holding that the child's views were not his own they had utterly failed to examine and consider the child's views or the evidence supporting the contention that these were genuine views, which evidence was considerable. Had they done so they would have seen that they had no basis for holding that his views were other than genuine. In failing to take any account of the evidence that these views were genuinely held and in failing to examine at all the child's views they were in my view acting wholly unreasonably and acting in a manner which no reasonable parent would have acted.

[116] Fifthly, they seemed to be opposing the adoption in order at least to some extent to preserve their rights to contact. Again this seemed to be a view based on their own interests and not on the interests of Child A.

[117] In my judgement the respondents looking to the above and to the whole of the submissions made on their behalf have regarded their interests as more important than the interests of the child.

[118] The reasonable parent would have regarded it as more important to have regard to the child's best interests and in particular would have had regard to the security which this adoption order would give to the child rather than their own interests. Their response, given the grounds therefor falls in my view well outwith the range of reasonable responses. In my judgement their views cannot be allowed to prevail so as to defeat what is clearly in the child's best interests. I accordingly without hesitation hold in terms of the first part of the test which I must apply that the respondents are unreasonably withholding their consent and therefore I am satisfied that one of the grounds in terms of Section 16(2) is established.

[119] I must having been satisfied that one of the grounds in terms of the said section is established go on to consider whether an order dispensing with agreement of the first 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). Section 6 provides inter alia that the courts shall have regard to all the circumstances but "shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration". Section 24(3) provides inter alia that the Court "shall not make the (adoption) order...unless it considers that it would be better for the child that it should do so than that it should not".

[120] Having regard to the above test I note first that the terms of the reports of the curator and reporting officer that the welfare test would be satisfied by the adoption of the child by the petitioners. There was in addition the evidence from the experts; the petitioners own evidence and the evidence of Mr Jackson which all supported the view that an adoption order was in the best interests of the child for the reasons which I have already summarised when looking at the first part of the test. Over and above that there were the wishes of the child to be adopted which I accept, given the evidence, were genuine and not influenced by the petitioners for reasons which I have detailed earlier in this judgment.

[121] I am in absolutely no doubt given the foregoing that an order in favour of the petitioners for the adoption of Child A should be made and would safeguard and promote his welfare throughout his life and accordingly that such an order should be made.

Post-Adoption Contact

[122] The starting point here is that there has been no contact between the child and the respondents since late 2008. Contact was stopped at that time as a result of the child wanting no further contact with the respondents and it being decided having regard to that factor and to the whole circumstances that it was no longer in his best interests to have contact with the respondents.

[123] As at the date of the proof the evidence from Mr Fry and Professor Furnell together with the evidence of the petitioners was that the child continued to wish to have no further contact with the respondents and that this was a genuine view and a view formed independently of any views which the petitioners may have had. The evidence was to the effect that this view which the child had formed had come about due to the child's feelings of uncertainty and insecurity arising from his being with the petitioners for some considerable time but that position not being finalised and made permanent due to his not having been adopted.

[124] As I have said earlier the respondents' position was that they doubted that this was a genuine view being offered by the child. In addition they were of the view, and in particular the second respondent was of the view, that the child was too young to express any view and that his view broadly speaking should not have been taken account of or at least not given the weight that it had been given.

[125] On the evidence, I repeat, I am satisfied for the reasons which I have already given that the child's expressed view that he did not wish contact with the respondents is a genuine one. This matter has been carefully considered by both experts and I can see no reason why I should not accept their evidence on this matter to the effect that his view is a genuine one. There was also the evidence of the petitioners and Mr Jackson on this matter which was to the effect that the view of the child is a genuine one. I could see no reason to not accept their views on this matter. The respondents' position as I have said appeared to be based on little more than a feeling on their part that their son would not express such a view and little else. They in my view failed to consider the child's circumstances and that given his identification with the petitioners and his very strong wish to be adopted that in these circumstances he may have seen contact with them as in some way preventing his being adopted.

[126] As regards the petitioners I gained no impression that they would have deliberately sought to poison the child's mind against contact with the respondents.

[127] It was obvious from the evidence that in particular the second petitioner did not believe that direct contact was in the best interests of the child and had formed this view at or about the time that the child expressed his view that he did not wish to go to contact. That she had formed this view at or about that time did not, however, cause me to hold that she had deliberately influenced the child to express his views against contact. The second petitioner did not having regard to her oral evidence and the way that she gave evidence leave me with the impression that she would have acted in this particular manner.

[128] As to whether the child was of an age to express any view to which regard should have been had again this was a matter which was carefully considered by the experts and they both expressed the view that the child was able to express a view and one which should be taken account of. Again I could see no reason why I should not accept this evidence. No counter evidence and in particular no evidence to the contrary from any expert was led. All there was to counter their position was the mere assertion by the respondents to the contrary and no more. I accordingly for all these reasons accept that at this time the child does not wish to have contact with the respondents.

[129] Despite their position regarding the child's views it was the position of both experts that should an adoption order be granted there should be letterbox contact between him and the respondents. I summarised the reasons for this when looking at their evidence earlier in this opinion. I saw no reason to hold given the evidence before me, particularly from the experts, that such letterbox contact would be anything other than in the best interests of the child and accordingly I am of the view that there should be post-adoption letterbox contact. Although, as I understood it, at the outset of the proof the respondents were seeking direct contact post the granting of the adoption order, by the stage of submissions all that they were seeking was letterbox contact, should I be granting the adoption order.

[130] Arising from my view that post-adoption letterbox contact was in the best interests of the child two issues arise. The first issue is whether the adoption order should be subject to a condition that there should be such contact. The respondents' position was that they wished post-adoption contact to be made a condition of the granting of the order. It was their position as advanced by their counsel that I should make the adoption order subject to such a condition. It was their position for the reasons that their counsel advanced in their submissions to me that the second petitioner could not be trusted to put into effect letterbox contact without there being an order in place. It was their position that although she had said in evidence that she was of the view that letterbox contact was in the best interests of the child this was no more than her paying mere lip-service to this idea and that once the adoption order was pronounced she would withdraw contact unless it was made a condition by the court. The petitioners counsel's position put short was that I could trust the petitioners to put into effect any such order and that accordingly no exceptional circumstances had been put forward and established which would justify the making of such a condition.

[131] There is no doubt by the summer of 2008 and probably at an earlier date the second petitioner had come to the view that direct contact with the respondents was not in the child's best interests. This view seemed to be based on a number of considerations: that contact was of little positive value to the child and a view formed at a later stage that the contact was adversely affecting the child's behaviour and was to some extent making him feel more insecure. The position as regarding his behaviour appeared to be based to some extent on reports from his nursery school. This view that it was not in the child's best interests for there to be direct contact was then reinforced by the child expressing the view that he did not wish to go for contact.

[132] The above caused the second petitioner by broadly the summer of 2008 to reach the view that direct contact should in the best interests of the child be ended. She had been confirmed in her view that contact was not in the best interests of the child in that once it had been stopped the child appeared happier and more settled. In addition, what in my view could fairly be described as minor difficulties at school, stopped.

[133] As regards the second petitioner it was clear from her evidence as to what letterbox contact should consist of that it did not coincide with what the experts were envisaging and in a very real sense amounted to almost nothing. Over and above that the experts were of the view that her approach to letterbox contact would not be in the child's best interests.

[134] In my view the second petitioner from looking at her evidence and her manner of giving evidence was as submitted by counsel for the second respondent determined to have her say. It was also clear from her evidence that she was completely frank about her position regarding direct contact and other matters in that there was no attempt to sugar coat or hide her views on any issue. The strength of her views (it was clear her views on all issues were very strongly held) was again clear from her evidence and her manner of giving it. Her genuine annoyance with the nature and length of the proceedings that the child had required to go through was again clear. Her general view that much of what the child had had to go through was intrusive so far as the child was concerned and so far as she and her husband were concerned and her annoyance at certain of the questioning by the second respondent's counsel was also clear in her evidence. It also seemed to me that to a certain extent her evidence supported the view that she lacked any real empathy for the position of the respondents.

[135] Having said the above, which may be said to amount to reasons why the court might impose a condition regarding contact, I have nevertheless come to the view that I should not impose such a condition and that in fact the second petitioner could if an adoption order were granted be trusted to put into effect letterbox contact without the imposition of a condition relative to contact. Given my above view, there were in my judgement no circumstances making this case of such an exceptional type that it required such a condition to be placed on the order. I have come to this conclusion for the following reasons:

[136] First, the second petitioner's antipathy to contact related to direct contact and not to contact by letterbox, which she stated in her evidence was in the child's best interests. I accepted her evidence on this matter.

[137] Secondly, her antipathy to such direct contact was in the context of the particular situation of the child prior to adoption. At that time the child was feeling insecure and she genuinely felt that contact was increasing this feeling of insecurity in the child and was contrary to his best interests. On the evidence that will not be the position in relation to letterbox contact post-adoption. The evidence as a whole pointed to the child after a period of time feeling secure once the adoption order had been granted. Thus in my judgement it was a fair inference from the evidence that his views regarding contact would alter.

[138] Thus looked at in context her views about contact as expressed in her evidence related to a wholly different type of contact from post-adoption contact. One was direct contact the other would be indirect contact. The purpose of pre and post-adoption contact is of course entirely different. In addition her views regarding direct contact in the summer of 2008 related to a particular problem which the child was having which on the evidence is unlikely to exist in relation to the period post-adoption. Thus I could not see why her views on pre-adoption direct contact should necessarily be said to be of any materiality in considering how she would approach post-adoption indirect contact. The two situations are entirely different.

[139] There seemed to be an underlying suggestion in the submissions made to me on behalf of the respondents that the second petitioner had sought to stop contact for reasons of her own which were not based upon the best interests of the child. I do not accept this submission. Of one thing I was absolutely certain having regard to the whole of her evidence and her manner of giving it and that was that the second petitioner at all times had as her paramount consideration the best interests of the child. Her views on direct contact in the past were in my view firmly based on a correct understanding of what was in the child's best interests at that particular time.

[140] It seemed to me that given her whole hearted and total commitment to the child's best interests that given the evidence of the experts that it was in the best interests of the child to have letterbox contact and that potentially damage could result if he did not that she would fully accept that there should be such contact and that she would do all that she could to put that into effect. She would do that simply because it was in the child's best interests and I believe that at all times she has those uppermost in her mind.

[141] I also recognise that her views on how letterbox contact would work were not in conformity with the expert views. I am confident that on her being informed that the way she viewed letterbox contact would not be in the child's best interests that, she again given her commitment to the child and his best interests, would operate letterbox contact properly and in the manner set forth by the experts and not in the manner which she envisaged in her evidence. Again in holding this view I was very much influenced by my impression of the second petitioner that she had the best interests of the child at heart and would at all times do what was in his best interests. Lastly so far as the question of her merely paying lip-service in saying that she would operate letterbox contact I believe that the utter frankness of her views as expressed in the course of her evidence pointed away from such a conclusion. Had she merely been paying lip-service in the course of her evidence I strongly am of the view that she would have given her evidence in a wholly different manner.

[142] Accordingly I reject the detailed criticisms made of the second petitioner particularly by counsel for the second respondent. I prefer the submissions made on behalf of the petitioners that the second petitioner could be trusted. I have formed a strong view, for the reasons which I have stated, that she can be trusted.

[143] Having looked at the second petitioner it is in my view very important when considering whether conditions should be imposed to have regard to the fact that this is a joint petition and there was not a single piece of real criticism put forward by either counsel for the respondents of the first petitioner.

[144] I found him to be a most impressive witness. It was clear in my view that he had a degree of empathy for the respondents. He appeared very much to understand their position. His views on all matters were measured, careful, and well considered. They were put forward in a much less strident and forceful fashion than those of the second petitioner. I had no doubt he was in favour of post-adoption letterbox contact and thought that it was in the best interests of the child to have such contact. I had no doubt that in relation to him there was no necessity for a court order in order for him to put into effect such contact. Had I had any lingering doubts about the second petitioner's position I believe I could have trusted him, despite any views of the second petitioner to put into effect letterbox contact. He was someone I felt that I could have total confidence in.

[145] For the foregoing reasons it is my judgement that no condition needs to be imposed. Such a condition I judge is unnecessary. There are no circumstances justifying the imposition of a condition.

[146] The second issue which arose was as regards the frequency of any post adoption contact. As regards frequency of any letterbox contact there was a measure of agreement between the experts and generally that there should be a cooling off period before contact was resumed in order to allow the child to settle down post-adoption and feel secure. I am unable to see any reason for not accepting that evidence and therefore it would be my view that letterbox contact should not commence until some 9 months after the date of decree in this matter.

[147] As regards the issue of frequency this was clearly a finely balanced issue. Professor Furnell in his evidence made it clear that this is a difficult issue and made it clear that precise figures as to the frequency were not particularly easy to give. I have come to the view that on balance I prefer Professor Furnell's view on this particular issue to that expressed by Mr Fry. It appeared to me that Professor Furnell had had materially more experience in this area than Mr Fry and in addition the reasons he advanced in his letter 7/2 of process were cogent. I believed a single contact per annum unlikely to fulfil the purposes of post adoption contact as set out by the experts in their evidence. It appeared to me to be insufficient to meet those purposes. I accordingly believe that post adoption contact should be three times per annum.

[148] Lastly, it is perhaps appropriate that I should set out what on the basis of the evidence of the two experts that I envisage the letterbox contact consisting of:

1. That on three occasions per annum the petitioners will write to the respondents a letter giving news about the child including information about how he is doing at school and about his health and interests. That on occasions, when appropriate photographs of the child should be included with the letters.

2. That if he wishes the child may contribute to the said letters.

3. That the respondents will reply jointly to the said letters giving news about themselves and the child's siblings and responses to any requests for information including the supplying of photographs of the respondents and his siblings.

4. That the child shall be informed of the receipt and contents of said letters from the respondents on their receipt and not at some later stage.

5. That all letters will be passed through Aberdeen City Council in accordance with the council's letterbox scheme.

6. That parties will seek the assistance of the council or other appropriate agency to facilitate letterbox contact in the interests of the child.

Decision

[149] For the foregoing reasons I grant the prayer of the petition; order that the child should cease to be subject to the supervision requirement; and refuse the respondents motion for a condition pursuant to Section 12(6) relative to contact.