EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Mackay of Drumadoon Lord Bonomy Lord Philip	[2012] CSIH 37 XA71/11 OPINION OF THE COURT delivered by LORD BONOMY in appeal by (FIRST) TW and (SECOND) JW Appellants; against ABERDEENSHIRE COUNCIL Respondents: _______

Act: J. M. Scott, Q.C., Beynon; Morisons LLP (for First Appellant)

Bowen; Beveridge & Kellas SSC (for Second Appellant)

Alt: Inglis; Digby Brown

5 April 2012

Background

[1] The appellants are the parents of C (referred to as CW by the sheriff and the sheriff principal) who was born on 5 December 2009. In terms of a child protection order granted that day, the first appellant and C remained together in hospital for twelve days during which they were regularly visited by the second appellant. Following Children's Hearings on 9 and 17 December 2008, C was made subject to a place of safety warrant and placed with foster parents on 19 December 2008.

[2] These steps were taken on account of concern for the safety of the child which had arisen because of the poor standard of care given by the appellants to their two elder children, one of whom had by that time been adopted and the other freed for adoption.

[3] The appellants continued to have daily contact with C. At a Looked After Children Review in terms of The Looked After Children (Scotland) Regulations 2009, Regulation 45, on 20 January 2009 it was recommended that, at the same time as supporting the development of a relationship between C and the appellant, the respondents should consider alternative long-term plans and the possibility of kinship care should be explored amongst family members. The respondents sought to establish, by an assessment process, that the appellants were capable of looking after C. A number of members of the staff of the health and social work departments of the respondents were involved in reviewing and continuously assessing their parenting capacity. At a Children's Hearing on 11 March 2009, C was made subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995 ("1995 Act"), including provision for contact to be fifteen hours per week in the form of three five hour sessions rather than daily for two hours.

[4] A Child Protection Core Group Meeting took place on 30 March 2009 and was attended by the appellants. Areas of concern to the social workers involved included the first appellant finding it difficult to relate to C, her struggle with the fact that the second appellant appeared able to respond more effectively to C, both parents not listening to advice in relation to feeding, preparations not being made in anticipation of C's needs, and the appellants not demonstrating any progress in their knowledge and skills. The appellants were given advice about how to deal with their difficulties and were encouraged to ask support staff for information about C and for clarification where they were unsure about anything.

[5] By April 2009 it was clear that the foster parents with whom C was initially placed did not wish to proceed to adopt her. On 28 April a Joint Child Protection Case Conference and Looked After Child Review took place, with the appellants and the first appellant's mother, Mrs R, in attendance. A number of "permanence options" were considered, including long-term foster care either under section 25 or section 70 of the 1995 Act, a parental rights order, and residential care. None was thought to be in the best interests of C. Kinship care was another possibility, but by that stage no assessment of anyone had been carried out. The recommendation of the joint meeting was that it was in C's best interests to be adopted as this would meet her lifelong needs for stability and security and give her a sense of belonging where she could grow up as part of a family. Mrs R did not put herself forward for kinship care at that meeting, as she felt that C should be with the appellants.

[6] The recommendation for adoption led to a Children's Hearing on 20 May 2009 deciding to gradually reduce contact between the appellants and C, over a period of 9 weeks, to once a month and for that contact to be supervised. Around that time the appellants separated. Thereafter each had contact with C once a month for 45 minutes. At that meeting Mrs R stated that she and her husband now wished to be considered for kinship care. A kinship assessment was undertaken by a social worker between June and October 2009 but was never completed. We consider that further below.

[7] At a meeting of the respondents' Permanence Panel on 3 December 2009, it was recommended in terms of Regulation 6(2)(e) of the Adoptions Agencies (Scotland) Regulations 2009 that a permanence order with authority to adopt in terms of section 80 of the Adoption and Children (Scotland) Act 2007 ("2007 Act") should be sought in respect of C. The respondents ratified the recommendation of the Permanence Panel on 17 December 2009. On 4 March 2010 the Permanence Panel recommended prospective adoptive parents and the respondents ratified that on 9 March 2010.

[8] The respondents then presented a petition to the sheriff at Banff, applying for a permanence order with authority to adopt under section 80 of the 2007 Act. Following a hearing lasting 11 days, the sheriff refused the application for a permanence order with the result that no separate question of authority to adopt arose. The sheriff heard final submissions on 6 December 2010 and on the same day delivered his judgment orally.

[9] The respondents appealed to the sheriff principal who heard the appeal on 12 and 13 May 2011. On 2 June the sheriff principal allowed the appeal, recalled the interlocutor of the sheriff of 6 December 2010, made a permanence order in respect of C including ancillary provisions relating to the vesting and extinction of parental rights and responsibilities, granted authority for C to be adopted, dispensed with the consent of the appellants to the making of an adoption order, ordered that contact between C and the appellants should cease forthwith and ordered that the supervision requirement of the Children's Hearing should cease to have effect. Against that decision the appellants have appealed to this court.

Outline of Submissions

[10] Mrs Scott for the first appellant made detailed oral submissions expanding upon her written note of argument. These submissions were adopted by Mr Bowen for the second appellant and supplemented by his own note of argument. The cases presented by both appellants are effectively identical. The sheriff principal found that the sheriff had erred in three respects: firstly, he had misconstrued section 84 of the 2007 Act and as a result had failed to address the question posed by section 84(5)(c)(ii); secondly, he had erred in his interpretation of section 83(3)(b) and (c); and thirdly, he had made a decision which was plainly wrong. The appellants submitted that it was the sheriff principal who had erred in each of these three respects. In their contention the sheriff had given proper effect to both statutory provisions and had made a sound judgment on the basis of the material before him, taking advantage of the benefit he alone had had of hearing and observing the witnesses. In reply, Mr Inglis for the respondents, maintained that in each of the three respects the sheriff principal did not err. In particular, this was a case where he was entitled to conclude that the sheriff was "plainly wrong". All counsel founded on the speeches in A v B and C 1971 SC (HL) 129, particularly that of Lord Reid at page 141.

Relevant Statutory Provisions

[11] Sections 80, 81 and 82 of the 2007 Act provide that a court may make a permanence order in respect of a child and provide for the vesting of certain parental responsibilities and rights in the local authority and other persons, generally those with whom the child will reside, and for the extinguishing of existing parental responsibilities and rights. "Parental responsibilities" and "parental rights" have the meanings given by sections 1(3) and 2(4) of the 1995 Act. Section 84 of the 2007 Act sets out the conditions and considerations applicable to the making of a permanence order, and section 83 sets out the conditions which must be met before the order may include authority for the child to be adopted. The issues of law which arise in this case concern parts of sections 83 and 84 which, along with section 80 so far as relevant, are as follows:

"Permanence Orders

80. -(1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.

(2) A permanence order is an order consisting of -

(a) the mandatory provision,

(b) such of the ancillary provisions as the court thinks fit, and

(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.

(3) In making a permanence order in respect of a child, the appropriate court must secure that each parental responsibility and parental right in respect of the child vests in a person.

Order granting authority for adoption: conditions

83.-(1) The conditions referred to in section 80(2)(c) are -

.......

(c) that, in the case of each parent and guardian of the child, the court is satisfied-

(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or

(ii) that the parent's or guardian's consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),

(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.

(2) Those grounds are-

.......

(c) that subsection (3) or (4) applies,

.......

(3) This subsection applies if the parent or guardian-

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to-

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

.......

Conditions and considerations applicable to making of orders

84.― .......

(3) The court may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made.

(4) In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

(5) Before making a permanence order, the court must-

.......

(b) have regard to-

.......

(ii) the child's religious persuasion, racial origin and cultural and linguistic background, and

(iii) the likely effect on the child of the making of the order,

and

(c) be satisfied that-

(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

(ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

......."

Also of relevance are the general considerations which apply to the exercise of powers relating to adoption, set out, so far as the court is concerned, in sections 14(1) to (4) of the 2007 Act as follows:

"14 Considerations applying to the exercise of powers

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to -

(a) the value of a stable family unit in the child's development,

.......

(c) the child's religious persuasion, racial origin and cultural and linguistic background, and

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

......"

Discussion
(i) Interpretation of section 84(5)(c)(ii)
[12] Logically, the first issue of law to be addressed is that raised in relation to section 84(5)(c)(ii). Section 84 provides that the court may not make a permanence order unless it considers that it would be better for the child that the order should be made than that it should not be made - the "no order principle" (subsection (3))- and requires the court to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration (subsection (4)). Mrs Scott submitted that these are the core provisions in the case of an infant child. While subsection (5) must be satisfied before a permanence order may be made, that was not a prerequisite of addressing subsection (3). The sheriff had been entitled to conclude that, in the absence of a full kinship care assessment, he could not make a finding that it would be better that a permanence order should be made than that no order be made. The issue under subsection (5)(c)(ii) was immaterial in the circumstances. The sheriff principal had erred by interpreting section 84 as requiring a specific finding in relation to (c)(ii) in every case and in particular in this case. In light of the sheriff's view of the circumstances, he was not obliged to make a finding under (c)(ii).

[13] We do not accept the notion conveyed in Mrs Scott's submission that among the subsections of section 84 there is a hierarchy and that subsections (3) and (4) have a particular core status. Subsection (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be made. However, subsection (3), prohibiting the court from making a permanence order unless it considers that it would be better for the child that the order be made than that it should not be made, relates to a determination that generally depends upon a review of the whole circumstances to which the court is obliged to have regard. One would generally expect the issue focused by subsection (5)(c)(ii) to have been addressed by the time subsection (3) comes to be considered. Indeed if the court is not satisfied that the requirement of (5)(c)(ii) is met, it is difficult to envisage circumstances in which the need to apply subsection (3) would arise. It is, therefore, difficult to envisage circumstances in which a court, faced with an application for a permanence order, would not first of all address the factors that arise under subsection (5)(c), in this case (5)(c)(ii), and any other matters arising under subsection (5), always bearing in mind the requirement of subsection (4) to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration, and only then consider the application of the "no order principle" in subsection (3), again keeping subsection (4) in mind. We recognise, as Mrs Scott submitted, that it is fairly easy to envisage circumstances in which a child may be temporarily resident with a relative for reasons that have nothing to do with the likelihood that residence with the parent will be seriously detrimental to the child's welfare. On the other hand, when that particular issue is raised in an application for a permanence order, as it was here, it will generally be appropriate to address it before deciding whether or not an order should be made.

[14] We agree with the sheriff principal that there are in the sheriff's note attached to his judgment a number of findings relating to the issue whether C's residence with the appellant was, or was likely to be, seriously detrimental to her welfare. It is plain from these findings that, had the sheriff addressed the point, he would inevitably have been satisfied that for C to live with her parents would be seriously detrimental to her welfare. At paragraph 1.12 of his note he expressed the certain view that the child could not simply be returned to the sole care of her parents, and at paragraph 1.19 did not envisage that the child could be returned to them or either of them immediately, "if at all". Later at paragraph 6.13, in the course of explaining his ultimate conclusion, he said this:

"It is not for me to say in the context of these proceedings whether or not they [parents] will ever be able to resume the direct care of their child; but if that is to happen it will not be an immediate process."

He went on to refer back specifically to paragraphs 1.12 and 1.19. In our opinion, these statements demonstrate clearly that compliance with section 84(5)(c)(ii) presented no obstacle to the making of a permanence order.

(ii) Interpretation of section 83(3)(c)

[15] A not dissimilar issue arose in relation to the satisfaction of the conditions for granting authority for adoption without the consent of the parents, in terms of section 83 of the 2007 Act. Before such authority can be granted the sheriff must be of the opinion that the parents are unable satisfactorily to discharge their parental responsibilities or exercise their parental rights (about which there was no issue), and also form the opinion that they are "likely to continue to be unable to do so" in terms of section 83(3)(c). The sheriff's conclusion on this point is succinctly summarised at paragraph 1.15 of his note as follows:

"Even if I am persuaded, on a balance of probabilities, that the [parents] are not capable of satisfactorily discharging their responsibility to care for the child as a baby I am not persuaded that it has been demonstrated that they will continue to be unable to discharge that responsibility to the child as she becomes a toddler, then a school child, then a teenager and so on."

The sheriff was particularly influenced by the absence of any single, clearly identified, chronic problem in the lifestyle of the parents, such as dependence on drink or drugs or a propensity for violence, in finding that he was unable to form the opinion that the parents were likely to continue to be unable to discharge their responsibilities and exercise their rights. He noted that as children get older their care needs change, and considered that evidence of the appellants' inadequacy as parents of a baby was not an indicator of the likelihood of their being unable to satisfactorily discharge their parental responsibilities over the period of C's childhood.

[16] We agree with the sheriff principal that the sheriff has misconstrued "likely to continue" in section 83(3)(c). Difficulties relating to the exercise of parental rights and responsibilities can arise at any stage in childhood. However, these difficulties arise just as frequently, if not more frequently, in the earliest stages of the relationship between parent and child. Opinions must be formed and judgments made on the basis of the material that is available, having particular regard to the need to safeguard and promote the welfare of the child as the paramount consideration. Were it to be a requirement of authorising adoption that the natural parents must be shown to be likely to be unable to satisfactorily discharge their responsibilities and exercise their rights throughout the whole of an infant's childhood, then few children would be freed for adoption. More importantly, the determination of the question which faced the sheriff in this case would inevitably be postponed, with the result that the child's future would remain in a state of uncertainty during the child's most formative years. In our opinion section 83(3)(c) does not require that the sheriff should be able to point to some flaw in the character of the parent or some persistent harmful behavioural characteristic of the parent that is likely to endure throughout the child's childhood, or be able to say that, when the child begins to show signs of maturity in mid-primary school years or teenage years, the position will not have changed, by which time the child's life might be blighted irretrievably. What is required of the sheriff is a determination, at the time the application is considered, whether the inability of the parents to discharge their parental responsibilities and exercise their rights satisfactorily is likely to continue in the foreseeable future.

(iii) Did the Sheriff make a Decision that was Plainly Wrong

[17] Although he was not satisfied that the test, for authority to adopt, of being likely to continue to be unable to discharge responsibilities and exercise rights was satisfied, the sheriff went on to consider what course of action would have been appropriate had he done so. At paragraph 6.11 of his note he said this:

"I would have concluded that, there being a reasonable possibility that kinship care might turn out to be a viable option, an order allowing the child to be adopted would not have been appropriate at this stage. ... In this case and assuming that a Permanence Order were appropriate, I cannot see what is necessarily wrong with the child being cared for outwith the birth family but maintaining the link that would enable the child to benefit from the society of her parents and wider family through contact during childhood and through whatever means as might be acceptable to the child during adulthood. In my view of the evidence and assuming that kinship care turns out not to be a suitable option, a Permanence Order without authority to adopt would be sufficient to safeguard the welfare of the child throughout childhood and throughout life."

He noted that there was no suggestion in the evidence that the appellants would be incapable of giving the child emotional and moral support as an adult and that perhaps all that was needed in this case was an arrangement for the care of the child by suitable carers, whether kinship or not.

[18] Whether the route favoured by the sheriff of refusing the application in its entirety, or the alternative solution of making a permanence order but refusing authority to adopt, were to be followed, in our opinion the inevitable result would be the creation of a state of doubt and uncertainty in the life of the child. She would either remain subject to supervision and regular review at Children's Hearings, or she would remain in the care of the local authority in terms of a permanence order with no realistic prospect of returning to the care of her natural parents in the foreseeable future. The sheriff principal concluded that neither course provided the prospect of an outcome that was in the best interests of the child and conducive to her welfare. Having initially formed the view that the sheriff had erred in law in the two respects referred to above, his own assessment of the evidence led him to conclude that the sheriff's ultimate determination was "plainly wrong". The core issue in the case has come to be whether the sheriff principal erred in concluding that the sheriff's determination was plainly wrong or whether the sheriff's decision can be justified on the material available to him and the approach he took to the assessment thereof.

[19] We now address the material facts. C is the appellants' third child. Their first two children, a boy S and a girl Z, have already been adopted. The sheriff in his findings recorded that when the boy was born on 19 August 2004 his mother, the first appellant, had been living a chaotic lifestyle and was estranged from her adoptive parents. She was unable to care for the child properly, due partly to her youth and mostly to her own emotional instability and chaotic lifestyle. S was placed in foster care with her agreement on 24 February 2005, made subject to a supervision requirement at a Children's Hearing on 13 June 2005, placed with prospective adoptive parents in May 2006, on 1 September 2006 declared free for adoption and thereafter adopted with the consent of the first appellant.

[20] The appellants' daughter Z was born on 4 January 2006. Before her birth it was agreed that her name should be placed at birth on the Child Protection Register under the category of "At Risk of Emotional and Physical Neglect". Initially a married couple lived in family with the appellants on a full time basis as carers for a period of six weeks. When they left, the second appellant agreed to accept responsibility for being his daughter's main carer, and from 15 March 2006 local authority support was gradually reduced to nil.

[21] On 10 June 2006 Z was admitted to hospital with a spiral fracture to her right arm, an injury described by the consultant paediatrician who saw her on admission, Dr Myerscough, as a non-accidental injury that could not have been caused without the intervention of a person other than the child herself. The sheriff concluded that there was no doubt that the injury was caused by the way in which Z was handled by her mother. The mother's explanation was that it had happened when no one was near Z and she rolled over on to her arm. Against that background, the sheriff reached what we consider to be a surprising conclusion which he expressed in these terms:

"And so, I have no hesitation in saying that the injury that befell the child on that occasion, though non-accidental, was not intentional."

While the sheriff could possibly have concluded that it had not been proved that the injury had been inflicted intentionally, we are unable to understand on what basis he could reach the positive conclusion that it was not intentional. There is nothing in his note to indicate that any credible material indicating a possible unintentional cause was presented to him. Dr Myerscough had in fact described the injury as a "classic" non-accidental injury that required a considerable amount of force, and stated that the child could not have caused the injury to herself. The sheriff also records Dr Myerscough's opinion that in light of Z's injury it would not have been safe to allow another child to be cared for by the appellants without an assessment being carried out to determine whether or not there had been any improvement in their ability to care for the child. The sheriff recognised that it was therefore understandable that, when the first appellant became pregnant with C, the situation was given detailed and urgent attention by the respondents' social work department, which led to the course of action mentioned at the outset of this Opinion.

[22] In deciding against making a permanence order and rejecting authority to adopt, the sheriff was influenced principally by the possibility that C could be cared for by relatives. The sheriff envisaged that C would reside with the female appellant's adoptive parents, Mr and Mrs R. With that possibility in mind a local authority kinship assessment had been carried out by Wendy Elaine MacAuley. Mrs MacAuley had terminated that assessment when she formed the view that, if C were placed in kinship care with Mr and Mrs R, that would result in a breach of Regulation 11 of the Looked After Children (Scotland) Regulations 2009, which prohibits kinship care if that would result in the child being returned to the care of parents from whom the child has been removed. In the first fifteen months of C's life, when the appellants had daily contact, Mrs R had on occasions observed that contact. Mr R had not been involved. Mrs MacAuley had met him only once, since he had failed to make himself available for, and had failed to try to rearrange, two other meetings. As a result, in preparing her assessment she met only Mrs R. Both Mr and Mrs R had expressed the view that the appellants were capable of looking after C, that they were very good parents and that they posed no threat to her. Mrs R was clear that she expected that the appellants would attend her house every day and would be involved in C's care on a daily basis, quite contrary to what would initially be expected by the respondents. Having heard Mr and Mrs R give evidence, the sheriff accepted that they would set and enforce appropriate boundaries for contact between C and her natural parents. However, neither Mr nor Mrs R had discussed kinship with the appellants. Mr R was prepared to allow unsupervised access between the appellants and C, and in the end both remained of the view that the appellants were capable of looking after C themselves.

[23] What is striking about the material before the sheriff in relation to Mr and Mrs R is the absence of any evidence of positive action to try to involve themselves actively in the life of C. Apart from occasional observation of the contact arrangements between C and the appellants, there is no evidence to indicate that they took any steps to try to develop any relationship with her. Although they made a favourable impression on the sheriff, the height of his endorsement of the acceptability of their involvement in C's care was that he did "not share the view that placing the child with them as kinship carers would inevitably result in the child being returned to the care of the respondents". That was to set the test too high. We recognise the importance of paying due regard to the favourable impression that the sheriff formed of both when he has heard and observed them give evidence (A v B and C, supra, at page 141). On the other hand our review of the sheriff's findings does not reveal any basis for doubting the soundness of the conclusion reached by Wendy MacAuley.

[24] Mrs Scott founded strongly on the fact that the sheriff had been favourably impressed by the evidence not only of Mr and Mrs R but also of the respondents. She maintained that the damaging material placed before the sheriff relating to the appellants' parenting skills had been "overwhelmed" by the impression the sheriff had formed of the parents and grandparents. While that may be true, nothing in the material outlined in the sheriff's note provides a basis for concluding with any degree of confidence that kinship care by Mr and Mrs R would safeguard and promote C's welfare. The say-so of the appellant's and Mr and Mrs R and the sheriff's impression from listening to them certainly do not provide such a basis, against the factual background which we have narrated above. The sheriff did not refer to any event or objectively verifiable conduct to support his conclusions. He appears to have rejected authority to adopt, and indeed a permanence order, in favour of the trial of any arrangement that might allow the relationship between the appellants and C to continue, in the absence of a substantive basis for optimism about its prospects and no matter how long it might take to exhaust the possibilities. Mrs Scott submitted that the sheriff's finding in fact 2.63 was unchallengeable. That was in the following terms:

"2.63 Mr and Mrs R have the potential to fulfil C's care needs throughout her childhood. If C were placed with them as kinship carers they would be able to set and maintain appropriate boundaries, consistent with Regulation 11 of the Looked After Children Regulations 2009, in relation to contact between C and the Respondents."

On closer inspection it can be seen that that finding amounts to no more than a statement of "hope". It is not surprising that that finding is restricted to one of "potential", bearing in mind that its foundation is simply the assertion of Mr and Mrs R following an apparent change of heart on realising that their initial, and probably genuine, stance was misguided and unacceptable. Before the sheriff they maintained their view that the appellants were capable of looking after C.

[25] Mrs Scott also founded strongly on the leading authority of the European Court of Human Rights on the application of Article 8 considerations in this field, Johansen v Norway 23 EHRR 33, and to a lesser extent on R v Finland [2006] FLR 923 at paragraph 89. We recognise that, before the bond between parent and child may be broken, it must be established that it is necessary in all the circumstances to break it. The Court in Johansen explained the matter at paragraph 78 from the perspective of the natural parent as follows:

"78. The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parents and their child. In this regard a fair balance has to be struck between the interests of the child remaining in public care and those of the parent in being reunited with the child. ... In particular, ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development.

In the present case the applicant had been deprived of her parental rights and access in the context of a permanent placement of her daughter in a foster home with a view to adoption by the foster parents. These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests."

79. The question whether the deprivation of the applicant's parental rights and access was justified must be assessed in the light of the circumstances obtaining at the time when the decisions were taken and not with the benefit of hindsight ..."

In that case, to extinguish parental rights with a view to adoption was held to be a breach of Article 8. The facts were, however, rather different from those of the present case. The mother had borne an older child who was a teenager by the time of the birth of the child in question. She had parted from the father of the older child. The father of the child in issue had been abusive towards her and was frequently imprisoned. Her own life became chaotic. She was abusing drugs and suffering from mental health problems when the child was born. Within two years, however, her life had been turned around. She resumed life with the father of her older child and gave birth to a third child, followed two years later by a fourth. The test of necessity was held not to be met in circumstances where, albeit some years before the birth of the subject child, she had demonstrated an ability to form a successful parental relationship with her first child.

[26] In the present case the appellants have a proven track record of inadequate parenting. Unlike the situation in Johansen, there is no evidence of their ever having been able to cope adequately as parents. The sheriff was unable to make any finding as to when, if ever, they might be able to undertake the care of C. We agree with the sheriff principal that these are circumstances which provide no positive indication that the continuing participation of the appellants in C's life would offer any prospect of stability at any stage in her development, as envisaged in the next paragraph of the decision in Johansen:

"80. It is also relevant that it was in the child's interest to ensure that the process of establishing bonds with her foster parents was not disrupted. As already mentioned, the girl, who had been taken into care shortly after birth and had already spent half a year with temporary carers before being placed in a long term foster home, was at a stage of her development when it was crucial that she live under secure and emotionally stable conditions. The Court sees no reason to doubt that the care in the foster home had better prospects of success if the placement was made with a view to adoption."

The guidance we have derived from that statement is that a vague hope of the possibility of maintaining some unspecified kind of relationship between a child and her natural parents from whom she has had to be taken into care shortly after birth is not an appropriate basis on which to disrupt the emotionally stable conditions in which a child is and has been residing with foster parents with a view to adoption. The same point is made at the end of paragraph 89 of R v Finland.

[27] Having regard to the conclusion reached by the sheriff about the non-accidental injury to Z, and the absence of any sound basis for the sheriff's conclusion that kinship care was a viable option worth exploring, we have come to the view that the sheriff principal was correct in concluding that the sheriff's decision not to make a permanence order was plainly wrong. It was in the circumstances of this case clearly not in the best interests of C and did not reflect the need to safeguard and promote C's welfare throughout childhood as the paramount consideration.

Did the Sheriff Principal Err in Making the Order

[28] Mr Inglis, counsel for the respondents, under reference to Osborne v Matthan (No 2) 1998 SC 682 at 688I to 689A, founded strongly on four incontrovertible facts which he said pointed irresistibly to the conclusion that, applying the principle that safeguarding and promoting the welfare of C is the paramount consideration, the application should have been granted by the sheriff in its entirety and was rightly granted by the sheriff principal. These facts were as follows. Firstly, C was 2 years of age when the sheriff gave his judgment and is now 3 years and 2 months old, and has never resided with the appellants except during the first twelve days of her life spent in hospital with the first appellant. Secondly, C was placed for adoption with the prospective adoptive parents on 12 April 2009. Thirdly, she has thrived in their care as is clearly shown by the sheriff's findings at paragraphs 2.37 and 2.38 of his note. And fourthly, the last contact between C and her natural parents was on 16 June 2011. The respondents' case was that it was only in granting the petition that the necessary stability and permanence could be secured for C to enable her to continue to thrive. The change in the arrangements for her care envisaged by the sheriff would inevitably prove detrimental to C's welfare. Even ongoing contact, in a situation where the natural parents had opposed the application for a permanence order, was likely to be harmful.

[29] In our opinion the facts of this case plainly justify the decision made by the sheriff principal not only to make a permanence order but also to grant authority to adopt C. In deciding to make the permanence order he rightly made the finding under section 84(5)(c)(ii) that we have discussed above. He has fully explained the attention he gave to the remaining parts of subsection (5) and how he then addressed the issues arising in subsections (4) and (3) respectively, followed by the question of authority to adopt arising under section 83. For reasons already discussed we agree that he rightly held that the sheriff ought to have found that the appellants' inability satisfactorily to discharge their responsibilities and exercise their rights was likely to continue. The sheriff principal thereafter addressed the questions whether the appellants' consent to adoption should be dispensed with and whether it would be better for the child if authority to adopt were granted than if it were not which arise under subsections (c) and (d), and in doing so had regard to the considerations arising under section 14(2) to (4).

[30] At the heart of the sheriff principal's reasoning were a number of findings made by the sheriff showing clearly the excellent progress that C had made in the care of her prospective adoptive parents, which contrasted starkly with the absence of any substantive basis for concluding that there was any realistic prospect of C's welfare being promoted by maintaining her kinship ties and her relationship with the appellants. The sheriff found that C was thriving, slept and fed well, and appeared to be meeting her developmental milestones. She had developed a variety of communication skills in the form of squeaks, grunts and facial expressions used to express her needs and feelings. At the age of two she was saying a few words and was very interactive in both initiating communication and responding to others. She was able to walk around furniture. Her inoculations were up to date (finding in fact 2.37). Her development was described as at the date of proof as "meeting and exceeding her developmental milestones" (2.38). There were no health concerns and she was above average weight and height for her stage of development (2.42). She was attending a baby group and mother and baby sessions at the public swimming-pool. She also had a range of age-appropriate toys and stimulation. She had been baptised at the instance of the appellants who would like her to have an upbringing in the Church of Scotland. Her prospective adopters have undertaken to promote Christian values for her and to encourage her to follow the Christian faith should she wish to do so as she grows older. Since they also live within the north east of Scotland, her cultural and linguistic background will be upheld (2.59 and 2.60). In light of his review of all the material before him, the sheriff principal concluded as follows:

"In short, C has now been living happily and securely in the care of the prospective adoptive parents for more than 13 months, there is no realistic prospect of her being returned to the care of T or J immediately, if at all, and, even if Mr and Mrs R were to be identified as suitable carers for C, the possible advantage to her of being brought up by members of her birth family is clearly outweighed by the potential benefit to her of being brought up by the prospective adoptive parents and the risk of significant damage to her if she were to be removed now (or more likely, if it were to happen at all, at a later date) from their care. In my opinion it is time that a decision should be made which will put an end to the ongoing uncertainty of her current situation and clear the way for her to be adopted by the prospective adoptive parents so that she may be granted the stability and security of a permanent home with committed and capable parents which, as I have said, ought to be the birthright of every child. Of all the options available, only the order now sought offers the assured prospect of this here and now and accordingly it is in my view indeed necessary in light of the overriding requirements of C's best interests."

Her social skills were described as "particularly noticeable as she interacts very well with anyone who pays her attention and clearly signal her care needs by tone and action."

Decision
[31] We agree with Mr Inglis that these are highly significant factors to which the sheriff paid little regard. In our opinion the sheriff principal correctly decided, in the circumstances which we have reviewed above, to recall the sheriff's interlocutor and grant the application. We therefore, propose to refuse the appeal.

[32] Mrs Scott raised a discrete technical point about the requirements of section 82 of the 2007 Act. That section sets out the "ancillary provisions" of a permanence order referred to at section 80(2)(b). These ancillary provisions relate to the vesting and extinction of parental responsibilities and rights. Section 82(1)(c) and (d) provide for the extinguishing of any parental responsibilities and rights which immediately before the making of the permanence order were vested in a parent of the child and in terms of the permanence order are vested in a person other than the local authority, in this instance the proposed adopters. Subsections 1(c) and (d) are so worded that any responsibility or right can only be extinguished if it is vested in another person. The sheriff principal's order vested the responsibility and right of contact in the adoptive parents. In Mrs Scott's submission, since C would be residing with them, that was not appropriate. She suggested that the provision was so framed as to reflect the notion that children in care should always have contact with a natural person or persons. Mrs Scott further submitted that the answer did not lie in the distinction that in terms of section 82(1)(a) the parental responsibility to look after the child and the right to determine the child's residence should be vested in the local authority, giving rise to the possibility that the relationship between the adoptive parent and the child might be seen as a form of contact. That was because section 2(1)(c) of the 1995 Act provides for a parental right of contact only "if the child is not living with" the parent.

[33] The answer to this apparent conundrum lies in the nature of the responsibility and right to maintain personal relations and direct contact with the child on a regular basis. Of all the responsibilities and rights, it is the only one qualified by the provision that it applies "if the child is not living with" the person. However it is a responsibility and right which in terms of sections 1 and 2 of the 1995 Act every parent has as at the birth of the child. Simultaneously every parent has the right "to have the child living with him or otherwise regulate the child's residence". That can be exercised in conjunction with the right to maintain personal relations and direct contact, e.g. where the parents live apart but the parent not living with the child agrees to an arrangement for the child to reside with the other parent. As Mrs Scott pointed out in her submission, but in a different connection, a person may have the right to regulate a child's residence but the child may meanwhile be in the care of another on account of the illness of parent or child, or of the absence of the parent on a work commitment or for some other reason. That parent may actively exercise both the right "to have the child living with him or otherwise to regulate the child's residence" and the right "if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis". Since the contingencies of life are unpredictable, it is in our opinion entirely consistent with the terms of section 82(1)(c) and (d) of the 2007 Act, where a child is to live with foster parents as prospective adoptive parents and the natural parents were exercising only the latter of these two rights, for both rights to be vested in the prospective adopters to place them in the same position, so far as possible at that stage, as the natural parents. We therefore detect no error on the part of the sheriff principal in vesting the responsibility and right of maintaining personal relations and direct contact in the prospective adopters and extinguishing that right as vested in the appellants. We are reinforced in that view when we note that section 82(1) also provides at (e) that an ancillary provision which may be made is one "specifying such arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child." There is, therefore, adequate provision to arrange for contact between the child and other natural persons, so far as necessary. We shall therefore refuse the appeal.