EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 42
Lady Smith Lady Dorrian Lord Kinclaven	XA105/13 OPINION OF THE COURT delivered by LADY SMITH in the Petition of S For Authority to Adopt the child FY _______________

Petitioners: Dowdalls QC, MacLeod; Digby Brown

Appellant: Scott QC, Clark; Aitken Nairn

9 May 2014

Introduction

[1] This case concerns a petition for the adoption of F, who was born on 28 July 2006, and has lived virtually all her life in family with Mr and Mrs S. They are, currently, her foster parents but they wish to adopt her. F was placed with them when she was one month old. The appellant is F's natural mother. F has never lived with her. She does not consent to F's adoption.

[2] By interlocutor dated 23 August 2013, the sheriff at Glasgow dispensed with the consent of the appellant and granted the adoption order. That part of the interlocutor which dispensed with the appellant's consent is in the following terms:

"Dispenses with the consent of the first respondent, B Y, the mother of the said child, to the making of said adoption order on the ground set out in section 31(3)(c) and section 31(4) of the said Act as well as on the ground set out in section 31(3)(d) of the said Act;".

As is set out more fully below, the provisions of section 31(3)(c) and 31(4) of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") concern the issue of whether a parent is able satisfactorily to discharge parental responsibilities and/or exercise parental rights, and section 31(3)(d) concerns the issue of whether the welfare of the child requires that consent be dispensed with.

Background

[3] The origins of this case are the death of the appellant's nine month old baby daughter. The appellant is from Pakistan. She and her husband, FY, entered the UK in late 2001/ early 2002, at which time they had one child, a son, W, who was born on 23 December 2000. They both claimed asylum on grounds of religious persecution. The basis for that claim was false. The true reason for their coming to the UK was that the appellant wanted her son to be educated here. The appellant has lived in Scotland since arriving in the UK and was granted leave to remain here on 21 February 2014. FY was deported in or about March 2012 and his whereabouts are said to be unknown; his consent was, accordingly, dispensed with by interlocutor dated 6 July 2012.

[4] The appellant gave birth to a daughter, A, on 25 December 2004, when she and FY were living together in Glasgow. Thereafter, the appellant was in full time employment and FY cared for the children when she was working. On 16 September 2005, W told a member of staff at the nursery he attended that FY had struck A. Later, W told hospital staff that FY had hit A and had also punched him on the stomach.

[5] On 17 September 2005, W, who was then four years old, was removed from the care of his parents and placed with foster carers; he has remained with them since then. The sheriff observes: "His life changed almost beyond recognition overnight." (Note: paragraph 167). Glasgow City Council is seeking a permanence order in respect of W, in proceedings which remain pending.

[6] W has repeated his report of FY having assaulted A and him to various professionals since 2005. Contact between the appellant and W ceased in July 2008; W has refused to have contact with her since then and their relationship has broken down.

[7] On 16 September 2005, A became ill, was admitted to hospital and died there, on 18 September 2005, having suffered significant injuries which included head trauma. FY was charged with having murdered A and assaulted W. The appellant was charged with a contravention of section 12 of the Children and Young Persons (Scotland) Act 1937 and granted bail subject to a special condition that she was not to discuss the allegations in the charges with W. That was an important bail condition, given the nature of the charges against FY and against her and W's status as a witness. The charge against the appellant was, ultimately, withdrawn (on 18 January 2008) but FY was convicted on 24 January 2008, after trial at Glasgow High Court, of the culpable homicide of A. He was sentenced, on 27 March 2008, to six years imprisonment. W had, at the age of seven years, been a witness in the trial of his father, FY.

[8] FY appealed against his conviction. His appeal was refused on 12 May 2011. The Scottish Criminal Cases Review Commission have, since then, referred his conviction to the High Court of Justiciary and it is understood that the final hearing in relation to that referral is due to take place shortly.

[9] The appellant knew, by late 2005, what W had reported about FY having assaulted both A and him immediately prior to A's death. She did not, however, between then and the trial, believe it. Nor did she accept that FY had been responsible for A's death, after he had been convicted.

[10] The appellant had contact with W after he was placed in foster care. She had to be persuaded to tell him that A had died having, in the meantime, left W under the misapprehension that his sister was still alive and being treated in hospital.

[11] Despite the bail condition to which we have referred, the appellant made it clear to W, on a number of occasions, that she did not believe what he had said about FY's behaviour to A and to him. On 9 December 2005, when W spoke of what FY had done, at a medical appointment, she told him that he should not say such things and said that he was lying; she accused a social worker of having caused W to make the allegations which, on the sheriff's findings, were ill founded. She went as far as to, during a contact visit on 6 June 2007, try physically to prevent W articulating what he had to say about FY's actions by wrapping her arms tightly around his head.

[12] On 4 February 2008, during a supervised contact session, W, under reference to his report of FY's behaviour, referred to the appellant not having believed him and said that if she did not believe him in the first place, she still would not do so. The appellant responded by saying that she did believe him. In June 2009, at the suggestion of the social work department, the appellant wrote a letter to W in which she apologised for not having believed what W had said about FY's behaviour.

[13] On 27 March 2008, the date when FY was sentenced, the appellant gave an interview to a journalist in which she said that it was W who was responsible for A's death, not FY.

[14] The appellant has, since March 2008, continued to make statements which indicate that she does not accept that FY caused the death of A. She has, notwithstanding her representations to W in February 2008 and June 2009, remained and remains, at best, ambivalent regarding the matter of FY's guilt. The sheriff considered that she is:

"...at best ambivalent about the second respondent's responsibility for the death of A. At worst she continues to hold the child's brother W responsible for the death of A" (Note: paragraph 157)

and concluded:

"Her inability to accept the guilt of the second respondent has not changed over the past, almost, eight years." (Note: paragraph 159).

[15] Social workers responsible for F have been and remain concerned about the appellant's handling of W at the time of and following A's death and her attitude to the matter of FY's guilt. They consider that they demonstrate an inability to meet F's emotional needs.

[16] By July 2011, the social workers responsible for supervising F's placement considered that the time had come to tell F about A's death. The appellant was reluctant to agree to that. She did not appear to understand why it was important to do so in a planned and supportive way prior to F starting school, where there were children who knew about the circumstances of A's death. F was told about it in the course of a visit by a social worker on 5 July 2011. She was shocked and needed the support of W, who was present in S's house at the time.

[17] Also in 2011, between July and December, a foster child who had been living with Mr and Mrs S for three years and who had been like an older sister to F, was moved to another placement and, in December 2011, F was present at a children's hearing when there was some discussion about the appellant's wish to have F live with her.

[18] From early 2012, F exhibited increased levels of anxiety if separated from Mrs S. The sheriff concluded it was likely that

"the coincidence of the said events during 2011 has operated to make the child anxious about separating from the female petitioner in particular." (Note: paragraph 207).

F has told social workers:

"I want to stay with ......,my mum and .....my dad. I mean it! Maybe once a month maybe, I would see (the appellant). I would like .....to come with me or someone." (Note: paragraph 55)

and the sheriff was told by a clinical nurse specialist who had worked with F in relation to her increased levels of anxiety and who gave evidence, that F was aware of the current adoption process and "very,very,very worried that she would leave the petitioners' care" and be placed with the appellant (Note: paragraph 57).

[19] Mr and Mrs S have provided a stable family home for F since she was first placed with them which has been of great value in supporting her overall development to date. They consider that they have always been F's parents; they love her. Mr S, who was born in Pakistan, is of the same religious persuasion, racial origin and cultural background as F and speaks Urdu, which is also the appellant's first language. Mrs S is of white Scottish descent. Mr and Mrs S are both Muslims. F views them as her parents. She views their extended family as her extended family. She wishes to live with Mr and Mrs S forever; they are her primary attachment figures. F wishes them to be her parents. She is also close to W; Mr and Mrs S facilitate frequent and regular contact between F and W and will continue to do so.

[20] F had contact with the appellant five times per week during the first two years of her life. Contact was reduced, by decision of the Children's Hearing, to twice weekly, in November 2009. Between 2 October 2012 and 17 January 2013, no contact took place; from around Spring 2011, F had become reluctant to attend contact and had, despite the encouragement and support of Mr and Mrs S, refused to do so. There have been few occasions of contact since January 2012. Contact was varied, by decision of the Children's Hearing, to once per month, unsupervised, on 29 April 2013, with provision for F to have another person in attendance if she so wished. Prior thereto, contact had been supervised.

[21] At the last supervised contact visit, on 17 January 2013, F had appeared scared when the appellant told her that on the next occasion, contact would be unsupervised and she would take F to what she refers to as "our" home. Finding in fact 82 is relevant here:

"The child is very frightened that she will be required to leave the care of the petitioners. The child likes going to see the first respondent but has become anxious that attending contact may be an obstacle to the fulfilment of her wish to stay with the petitioners."

When contact takes place, it is generally of good quality. The appellant has met F's physical needs during the visits and F has demonstrated love and affection for the appellant. Mr and Mrs S will facilitate contact between F and the appellant post adoption and will take advice from appropriate professionals regarding what should be its frequency and duration.

Children's Hearing advice

[22] The adoption petition having been served on 28 May 2012, on 8 January 2013, the children's hearing provided advice under and in terms of the then relevant statutory provision, namely section 73(13) of the Children (Scotland) Act 1995 ("the 1995 Act"). It provided that where a local authority were aware that an application for an adoption order had been made in relation to a child subject to a supervision requirement, the children's hearing required to draw up a report to provide advice in respect of the proposed adoption. Findings in fact 52 and 53 refer to the advice, to the decision and reasons given by the children's hearing on 8 January 2013 and to the outcome of an appeal to the sheriff in relation to the children's hearing decision of 8 January 2013.

[23] The advice was in the following terms:

"The panel would like to respectfully advise the Sheriff that they are supportive of a long term decision. This decision includes careful consideration of F's views and recognises that she considers her current placement to be 'home' and that her relationships with her current fosterers are very important to her mental wellbeing. There was a minority decision from the Panel to support 'adoption'. The reasons for this were that that (sic) F requires long term stability, and that by providing legal status to her current carers this would allow them to continue to provide the necessary care, protection and guidance which F requires. F has been with her placement for a long time and her bonds are very well established. The panel felt that by granting adoption this would be most beneficial to F's long term needs, however, stated that an open adoption should be sought to allow her well established relationships with her birth mother and brother to continue. A majority decision was recorded supporting 'permanence', and the reasons for this related to the far reaching potential consequences of removing all legal status in relation to F's brother and her mother. The Panel felt that this would require further consideration within the Courts."

Section 73(14) of the 1995 Act provided:

" A court which is considering whether, in relation to a child, to grant an application under section 29, 30 or 80 of the 2007 Act and which by virtue of subsection (13) above, receives a report as respects that child, shall consider the report before coming to a decision in the matter."

Although section 73 of the 1995 Act was repealed in terms of Schedule 6 to the Children's Hearings (Scotland) Act 2011, which came into force on 24 June 2013, its effect was preserved in relation to ongoing legal proceedings, by the Interpretation Act 1978 sections 16 and 23A. The sheriff was, accordingly, obliged to consider the above advice from the children's hearing.

Discussion of Relevant Law
Adoption

[24] Section 14 of the 2007 Act sets out considerations which apply when a court is determining an adoption petition. In particular, it provides:

"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,

b. The child's ascertainable views regarding the decision ( taking account of the child's age and maturity),

c. The child's religious persuasion, racial origin and cultural and linguistic background, and

d. The likely effect of the child, throughout the child's life, of the making of the adoption order."

[25] Section 28 contains provisions about adoption orders. They include:

"28 Adoption orders

..................

(2) The court must not make an adoption order unless it considers that it would be better for the child that the order be made than not.

..........................

..........................

(5)An adoption order may be made in respect of a child who is subject to a permanence order."

[26] Section 31 makes provision for parental consent and dispensing with parental consent. Regarding the latter, it provides that the court must be satisfied that consent should be dispensed with on one of the grounds mentioned in subsection (3):

"31 Parental etc. consent

..............

(3) Those grounds are-

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

( c) that subsection (4) or (5) applies,

(d) that, where neither or those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

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

(a) has parental responsibilities or 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."

[27] Section 31(5) is not relevant for the purposes of the present case. We will refer to the ground in section 31(4) as 'the incapacity ground'. As can be seen from its terms, the legislation specifies particular criteria that must apply before the ground is established. The court has to address a number of questions. Has it formed an "opinion" that the parent "is unable satisfactorily" to discharge the particular statutory duties referred to? Has it formed the opinion that the parent "is unable satisfactorily" to exercise the particular statutory rights referred to? Has it formed the opinion that the parent is "likely to continue to be unable to do so"?

[28] We will refer to the ground in section 31(3)(d) as "the welfare ground". The welfare ground can only apply if neither the incapacity ground nor the ground set out in section 31(5) apply. Accordingly, it may be seen as a residual ground or, as it has been referred to, a safety net.

[29] We consider that, when considering whether or not the incapacity ground applies, the court is engaged, essentially, in a fact finding exercise; what facts are established by the evidence and, on those facts, does the court conclude that the relevant parent or guardian is unable satisfactorily to discharge the rights and/or responsibilities referred to and are they likely to continue to do so? Whilst deciding whether or not that is the correct conclusion is, we accept, a matter of judgment, it will be driven very much by the facts of the individual case. That being so, where the findings in fact are not challenged and the conclusion is a reasoned one which, on those facts, was open to the judge, it will usually be very difficult indeed to interfere with that part of the overall decision making process. As for convention considerations, for the same reasons as are given by Lord Neuberger at paragraph 62 of In re B (A Child) (Care Proceedings) [2013] 1 WLR 1911 ( see below), we do not consider that, at the stage of deciding whether or not the incapacity ground applies, article 8 has any part to play.

[30] When considering whether or not the welfare ground applies, the court requires first to determine what, as a matter of fact, safeguarding and promoting the welfare of the particular child involves and, looking to the future, will involve, having regard to all the circumstances including those factors specified in section 14(4) of the 2007 Act. To that extent, it too involves an initial fact finding exercise. However, the terms of section 31(2)(b) read together with 31(3)(d) show that, if the court is satisfied that the welfare of the child requires it, parental consent must be dispensed with; the court then has no choice in the matter (unlike the situation when the incapacity ground applies). Accordingly, article 8 considerations do, we consider, come into play when deciding whether or not the welfare ground is established. To put it another way, the legislative structure in the case of the welfare ground is such that there is no initial threshold to be crossed albeit that there is an initial need to ask what, as a matter of fact, is involved in the welfare needs of the individual child.

S v L 2013 SC (UKSC) 20

[31] Of the authorities relied on by counsel, this is the only one in which the terms of section 31 of the 2007 Act are considered.

[32] Lord Reed discussed, at some length, the interpretation and application of section 31 of the 2007 Act, the compatibility of section 31(3)(d) being subject to challenge in the appeal. For present purposes, it is sufficient to note the following.

[33] Lord Reed observed that the welfare ground is of limited scope but of practical importance. At paragraph 29, he gives examples of cases where it might be difficult to meet all the specifics of the incapacity ground yet the welfare ground nevertheless requires that an adoption order should be made. The welfare ground complies with the parents' article 8 rights to respect for family life as is demonstrated in various ways: "welfare" in the welfare ground has to be read in the context of section 14(3) which articulates the paramountcy principle, the matters to which regard must be had under section 14(4) are specific and appropriate, and the welfare ground empowers the court to dispense with consent only if the welfare of the child "requires" it, which is a high test meaning that it is not merely desirable or reasonable but that it is necessary. At paragraph 34, Lord Reed said;

"There must, in other words, be an overriding requirement that the adoption proceed for the sake of the child's welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice."

That accords with the general principle that has long been recognised in adoption law in this jurisdiction to the effect that to make an adoption order against the wishes of a natural parent amounts to a very serious intervention by the state in family relationships and is a step which will not lightly be sanctioned by the court. As Lord Reed commented at paragraph 33, it "did not require the Convention to teach us that." However, the welfare ground is not prescriptive and still leaves much to the judgment of the sheriff according to the facts and circumstances of the individual case, as Lord Reed observed at paragraph 47:

"All that said, sec 31(3)(d) leaves much to the judgment of the sheriff hearing the individual case. He is not as tightly constrained, in his appreciation of the circumstances of the case, as a court may be in some other contexts where legislation has been drafted with greater specificity. That however reflects the nature of the subject-matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary."

Permanence orders

[34] Permanence orders were introduced by the 2007 Act. Such an order enables the exercise of parental rights and responsibilities to be regulated in respect of children who cannot live with their natural parents. The order allows for sharing of the relevant rights and responsibilities. The right to provide the child with appropriate guidance (section 1(1)(b)(ii) of the 1995 Act) and the right to regulate the child's residence (section 2(1)(a) of the 1995 Act) must be vested in the local authority and the right to maintain contact with the child (section 1(1)( c) of the 1995 Act) cannot be vested in the local authority but, otherwise, there is room for flexibility as to the person in whom the various rights and responsibilities in sections 1(1) and 2(1) of the 1995 Act are to be vested and the ability to provide, in terms of the order, for any other matter relating to parental rights and responsibilities or the welfare of the child as is appropriate in the individual case (see: section 82(1) of the 2007 Act).

[35] A permanence order may also, if the local authority so requests, grant authority for the child to be adopted if the parents consent or their consent is dispensed with by the court on one of several grounds which are identical to those which apply when consent is being dispensed with under section 31 of the 2007 Act (see: section 80(2)(c ) and 83). Once authority to adopt is included as a provision of a permanence order, the child may be adopted in later proceedings without there being any further reference to the matter of parental consent (section 31(7)).

[36] The paramountcy principle lies at the heart of the provisions for permanence orders; section 84(4) of the 2007 Act provides:

"84.-(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."

Accordingly, the precise terms of a permanence order will vary according to the particular needs and circumstances of the individual child and there will require to be careful and detailed consideration before they can be determined. That being so, it is reasonable to expect that any serious proposal that a permanence order should be made in a given case will include an indication of the person(s) in whom it is thought that the relevant parental rights and responsibilities should be vested, whether it is considered that any additional conditions would be appropriate and, if so, what those conditions might be.

Appellate review of dispensation with parental consent

[37] The nature of the task for the appellate court when being asked to review first instance decisions relating to parental rights will be affected by the nature of the first instance decision that is under scrutiny, a matter which has been discussed in a number of cases. In Lothian Region Council v A 1992 SLT 858, which concerned dispensation with parental consent to an order freeing two children for adoption, at p.862, when analysing the first instance decision, the Lord President (Hope) said:

"...it is necessary to approach the question whether the parents' agreement to an adoption order should be dispensed with in two stages. The first stage is to decide whether one or other of the grounds mentioned in s.16(2) has been established by the evidence. This requires a decision to be taken on a question which is essentially one of fact, as can be seen clearly from an examination of the various grounds which are set out in s.16(2). ............the question which must be addressed is not whether the court thinks that agreement to an adoption order should be dispensed with but whether the parent is unreasonably withholding his consent. The second stage is to decide whether, if one or other of the grounds in s.16(2) has been established, an order dispensing with the parent's agreement to an adoption order ought to be made. At this stage a discretion must be exercised by the court, and it is plain that the court must do what s.6 of the Act requires, which is to have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood."

It is, however, of some note that when considering whether or not to uphold the appeal against the sheriff's decision to dispense with consent, the court did not take the narrow view of its available powers which, in other types of case where a discretionary decision has been made at first instance, might be considered to be appropriate. The sheriff's decision making was subjected to considerable scrutiny before being found to be wanting in a number of different respects.

[38] In the later case of Osborne v Matthan 1998 SC 682 , which concerned the parental right which used to be referred to as the "custody" of a child, what might perhaps be described as a more nuanced approach to the court's task was adopted by the Lord President (Rodger), where the language of judgment is used rather than that of discretion:

"In some of the passages in the authorities dealing with decisions on parental rights it is said that the first instance judge exercises a discretion when deciding whether to make an order and, if so, in what terms. See, for instance, Re K D (A Minor) per Lord Oliver at p 819G. It appears to me, however, that the decision which a trial judge reaches on custody may perhaps be better described not as a matter of discretion but as a matter of judgment exercised on consideration of the relevant factors. The court must consider all the relevant circumstances and decide what the welfare of the child requires. Once the court has identified that, it has no discretion: the court must do what the welfare of the child requires." (page 688H - 689B)

[39] More recently, the UK Supreme Court considered the matter in the case of In re B where one of the issues was whether or not section 6(1) of the Human Rights Act 1998 required the court to depart from its normal appellate function of secondary review and to make a fresh determination of whether or not a care order was proportionate. That was not necessary; it would only be where the appellate court was satisfied that the first instance decision was "wrong" that it should interfere (Lord Neuberger at paragraphs 90 - 91). The use of the term "wrong" appears to emanate from the wording of CPR r 52.11(3) which provides for an appeal court to allow an appeal where the decision of the lower court was "wrong". That being so, it was not appropriate to consider whether it was "plainly" wrong; the rule did not allow for the reading in of any adverb and to do so would not accord with convention requirements. However, in addressing that question, an appellate court required to think very carefully about the benefit that the first instance judge had, when carrying out what was an "evaluative" rather than a discretionary assessment of whether a care order should be pronounced, in seeing the witnesses and hearing the evidence (Lord Neuberger at paragraph 94). We think that that characterisation of the task of the first instance judge accords with what was said by Lord President (Rodger) in the above passage. Moreover, we consider that if the task is approached as being an exercise of judgment or evaluation, that fits better with the court's obligation to treat the welfare of the child as being of paramount importance and to comply with convention requirements than if the exercise is characterised as being a discretionary one.

[40] It is also of some note, given an aspect of the submissions advanced on behalf of the appellant, that the court in Re B did not regard article 8 proportionality considerations as having any part to play when considering the threshold issue of whether facts could be found and assessments made, on the evidence, which might support a decision to make a care order. At paragraph 62, Lord Neuberger said:

"..I consider that article 8 of the Convention ... has no part to play in deciding whether the threshold is crossed, although it obviously comes very much into play when considering the issue of whether to make a care order. The threshold merely represents a hurdle which has to be crossed before the court can go on to consider whether to make a substantive order - i e an order which actually has an effect on a child and her parents (and sometimes on others). It is of course common ground that the court must consider any Convention rights before deciding whether to make a substantive order."

[41] Applying that reasoning to a case where the issue is whether or not to dispense with parental consent to an adoption order, it would follow that article 8 has no part to play when considering whether or not the incapacity ground applies or when deciding, for the purposes of the welfare ground, what are the welfare requirements of an individual child.

The sheriff's decision

[42] The sheriff heard evidence from eight witnesses for the petitioners and three witnesses for the appellant, including the appellant herself. The witnesses for the petitioners included Mrs S. He made clear, relevant, findings in fact from which the summary in the background above is drawn, none of which were challenged by the appellant apart from the last one (finding in fact 94) which is, in any event, a conclusion or inference drawn from primary fact. It states:

"(94) The first respondent is unable to meet the emotional needs of the child. The first respondent is unable to emotionally support the child to understand her family history and the fact of and consequences arising from the second respondent's responsibility for A's death."

The sheriff has helpfully set out his assessment of each individual witness, providing clear reasons for accepting or, in the case of the appellant, rejecting, their evidence. His assessments of the witnesses were not challenged. In particular, it was not submitted that he was not entitled to reject those parts of the appellant's evidence which he did not accept or to assess her evidence as, in various respects, not assisting her case.

[43] Turning to the sheriff's assessment of the appellant's evidence, the following are of particular note:

• The appellant's approach, throughout her evidence, was that what she sought was to have F live with her - she did not propose that a permanence order be considered;
• Although at times, she spoke in an open, straightforward and frank manner, there were other times when she was "clearly dissembling" (Note: paragraph 96);
• The appellant said that she had never met the journalist to whom we have already referred ( and whose evidence about interviewing the appellant on 27 March 2008, the sheriff accepted) and that she had never given an interview (Note: paragraph 99);
• The appellant was found by the sheriff to be "clearly dissembling" in her evidence about the occasion we refer to above when she was with W at a medical appointment on 9 December 2005 (Note: paragraph 100 - 101);
• The appellant said that it was not possible for her to have behaved in the way another social worker had described her as behaving at the contact visit on 6 June 2007 but the sheriff, again, found that she was "clearly dissembling" in circumstances where, again, he had found the evidence of the social worker - which was supported by the relevant written records - to be credible and reliable (Note: paragraph 102 - 104);
• In giving evidence about her objective of achieving an ultimate outcome whereby F moved to live with her, the appellant "demonstrated a lack of insight into the needs and welfare of the child" (Note: paragraph 105) and showed that "she lacked insight into the welfare and interests of the child in view of her failure to acknowledge that it would be likely not only to be unsettling for the child but potentially traumatic for her to be removed from her current carers." (Note: paragraph 106);
• The sheriff's impression was that the appellant had "an unrealistic and simplistic view of what would be in the best interests of the child" (Note: paragraph 107);
• The appellant also demonstrated an "unrealistic and simplistic view of the circumstances of ...W" as exemplified by her saying, in evidence: "I think this would be very positive for W...they have very strong bonds with each other...if F comes home W will want to come home as well...if F comes home he'll be reassured I can look after F.." and doing so in circumstances where, by the time of the proof, W had been in foster care for almost 8 years and had last attended contact with her five years earlier (Note: paragraph 107);
• The appellant considered that there should be a shared care arrangement between Mr and Mrs S and her with a view to F passing into her sole care but she was unclear about how that would operate in practice and could not suggest any detailed day to day arrangement. Further, the shared care idea was, she said, not her idea - it had come from one of her witnesses, Dr Robinson. Dr Robinson's evidence did not, however, support that assertion. The sheriff was satisfied that it was the appellant's idea but that it demonstrated, once more, her lack of understanding of F's needs and, in particular, of the fact that Mr and Mrs S were established as her primary attachment figures (Note: paragraph 173);
• The appellant was reluctant to acknowledge that F had expressed a desire to be adopted by Mr and Mrs S, relying on F having indicated that she would like to see the appellant's home and, to satisfy her own needs, interpreting that wish as being a rather different matter of wanting to be in the appellant's full time care (Note: paragraph 109 - 110);
• The appellant appeared , without justification, to believe that F viewed Mr and Mrs S as only her carers whereas F views them as her parents. She did not acknowledge that the attachment the child had formed with them was parental in nature (Note: paragraphs 111 and 114);
• The appellant impressed the sheriff as not having the insight to view the relationship between her and F from the child's perspective, in marked contrast to Mrs S whom he found to have a demonstrable ability to view several situations from the point of view of others, not just from her own point of view (Note: paragraphs 88 and 113-114);
• Separately, the appellant had demonstrated a lack of insight and understanding of W's emotional needs by telling him he was lying about FY assaulting A, by demonstrating to W that she believed FY rather than him such as by attending contact visits to him in the company of FY, by failing to support W and failing to show respect for his position and by delaying in telling W that A was dead (Note: paragraph 115), all in circumstances where W was going through a "dreadful period in his life" (Note: paragraph 168 - 9);
• The appellant showed a significant degree of mistrust of Mr and Mrs S which had no basis in the evidence and, likewise, she held a belief that they would not promote continuing post adoption relationships between W and F and between her and F in circumstances where, again, there was no justification in the extensive body of evidence (including evidence from professionals) which was to contrary effect (Note: paragraph 116);
• Although the appellant said in evidence that she now accepted that FY was responsible for A's death, the sheriff did not believe her for reasons which included the extent to which her other evidence was not credible and reliable, and that she found it difficult to be candid about certain issues including that one. He also relied on her reluctance to accept that she had lied about the basis for her asylum claim and only eventually conceding that what she had said in her asylum application was not true - another example, as the sheriff saw it, of the appellant not being prepared to take personal responsibility for her actions and choices (Note: paragraphs 160 - 163);

[44] Regarding other evidence before the sheriff, we would also note that he accepted the evidence of the first expert witness for the appellant, Professor Thomas A W N MacKay, in its entirety. At paragraph 212, he sets out a particularly important passage of Professor MacKay's report of 20 September 2012:

"This is quite an unusual case. F went to the Petitioners as foster carers when she was only a month old and has been with them now for over six years. At the present time there are other children under temporary fostering arrangements. Also, she has maintained a high level of contact with her birth mother - indeed, at levels more commonly associated with plans for rehabilitation than with permanence. From a psychological perspective I think the key point is that F has been in the care of the Petitioners all her life. She knows (sic), and has no wish to know, any other care arrangement. To her the Petitioners are her parents, and she addresses them as such. She requires in my view the security of her carers being parents to her like other children. As stated by the review group, 'Children benefit from being brought up in families by a parent or parents committed to them in parent/child relationships'. This, then, in my view is what she needs - to know she is 100% part of the family, that she is there forever and that her carers can act towards her just like other parents without the need to seek permissions from social work or from her birth family."

In all these circumstances, the sheriff concluded that the appellant was unable satisfactorily to safeguard and promote F's health, development and welfare (the parental responsibility set out in section 1(1)(a) of the 1995 Act)(Note: paragraph 153). In particular, she was unable to meet F's emotional needs for support to understand her family history and the reasons for her having been accommodated by the local authority and unable properly to protect F from danger by explaining clearly the threat posed by FY. His conclusion is shortly stated at paragraph 153 but in earlier and subsequent paragraphs of his note, he explains his reasoning with commendable clarity. The sheriff also concluded that the appellant was, in all the circumstances, unable satisfactorily to control, direct or guide F's upbringing in a manner appropriate to the stage of development of the child (the parental responsibility set out in section 2(1)(b) of the 1995 Act)(Note: paragraph 175).

[45] The sheriff addressed the question of whether the appellant's incapacity was likely to continue and concluded that it was, given the lengthy period of time since the death of A during which that incapacity, not only in relation to F but also in relation to W, had persisted (Note: paragraph 176).

[46] Having concluded that the incapacity ground applied, the sheriff, appropriately, considered separately whether the appellant's consent should be dispensed with. He did so under reference to the need to safeguard and promote the welfare of the child throughout her life as the paramount consideration and in the light of her established place in the S family where she has the benefit of close and loving relationships and in the light of her particular need for long term stability and security where, as Professor MacKay had put it, she presently lacks "security of tenure" and where he had heard clear evidence of F's current state of uncertainty about her future leaving her very anxious and frightened. The sheriff's detailed and clear reasoning shows that he had no doubt at all that it was better for F that an adoption order be made than that no order be made; she needed the security of adoption and needed to know that her status had changed.

[47] The sheriff was also addressed on the welfare ground and, between paragraphs 243 and 250 of his note, he sets out what would have been his conclusion on that ground if he had not been satisfied that the incapacity ground applied. In short, he would have been satisfied that F's welfare required that the appellant's consent be dispensed with and an adoption order be granted, stressing F's particular needs in circumstances where her primary and long established attachment was with Mr and Mrs S and referring back to the appellant's inability to meet her emotional needs. At paragraph 251, in a discussion which applies to both grounds, the sheriff addresses article 8 of the convention, explaining that he considered both F's and the appellant's article 8 rights to be relevant and had concluded that, when carrying out the proportionality exercise, those of F - which lay firmly on the side of dispensation with consent and adoption - outweighed those of the appellant.

[48] Throughout his reasoning in relation to his decision to dispense with consent on the incapacity ground and in relation to what would have been his decision on the welfare ground, it is apparent that the sheriff has consistently and correctly, given his duty under section 14 of the 2007 Act, had F's welfare at the forefront of his mind.

[49] Before leaving the sheriff's note, we would observe that, at paragraph 217, he explains:

"It was put to the first respondent that one possible outcome of these proceedings would be the granting of an adoption order and she was asked if she would recognise that as "the final say" to which she replied 'Yes'."

That is, however, evidently not her position now, given the present appeal and her primary submission that there should not be an adoption order. The reason for the appellant departing from her position as stated on oath, in evidence, was not explained to the court.

The appeal
Submissions for the appellant

[50] Senior counsel for the appellant advised that her position now was that she accepted that F should carry on living with Mr and Mrs S. Contrary to what had been her position before the sheriff, she was no longer suggesting either a shared care arrangement or that, ultimately, the outcome should be that F live with her. She was, however, opposed to adoption. It was now her position that the appropriate outcome would be the granting of a permanence order; she would consent to such an order provided it did not include authority to adopt. It was accepted that, before the sheriff, it had not been submitted on her behalf that there should be a permanence order.

[51] We observe that not only were no submissions made to the sheriff to the effect that a permanence order would be appropriate but, in the appellant's answers to the petition for adoption, at answer 96, the following averment is made on her behalf:

"Admitted that a permanence order would not be in the child's best interests."

The appellant's current position about a permanence order is, accordingly, new. No explanation for this change in her approach was offered. It can be summarised as being that such an order would accord with the appellant's article 8 rights, it would recognise that she was not a wholly unfit mother, it would be flexible, it would give F permanence, she would be free of the current pattern of children's hearing reviews, and it could not be appealed against by the appellant or challenged in any way without leave.

[52] In addressing the sheriff's determination, senior counsel for the appellant had two principal submissions.

[53] First, when determining whether or not the incapacity ground applies, the court requires to have regard to the proportionality requirements of article 8 but the sheriff had failed to do so; his decision on the incapacity ground should, accordingly, be set aside. Secondly, this court would require to consider, of new, whether section 31(3)(d) applied so as to require the appellant's consent to be dispensed with and an adoption order granted.

[54] In expanding on her first submission, counsel criticised the sheriff as having determined incapacity on the basis of a flimsy and inappropriate criticism of the appellant's parenting abilities. Adoption was an extreme measure, based on a stringent and demanding test; a high degree of justification was required before it could be ordered. In support of those submissions, she referred to In re B and a decision of the Court of Appeal, Re B-S (Children) [2013] EWCA Civ 1146, a case which, we would observe, was concerned with addressing deficiencies which the court identified as occurring regularly at the stage of first instance decision making in that jurisdiction. We do not consider that it adds anything of relevance in the present case to In re B.

[55] Senior counsel submitted that the threshold test in section 31(4) was not passed and even if it was, the sheriff should not have been satisfied that the circumstances justified dispensing with consent. The sheriff failed to take account of there being, it was said, grounds for the appellant's ambivalence about what had happened to A - she was not present, the matter of what W had to say about it was not straightforward, there was complex medical evidence at the trial and there was an outstanding SCCRC referral. Also, soon after FY's conviction, there was a turning point in the appellant's approach. The sheriff had not explained the practical effect of the appellant's ambivalence. In supporting continued contact, the sheriff's decision was inconsistent. The sheriff had not taken account of the possibility of providing support to the appellant and F to assist to make up for what he determined was parental incapacity. He was also wrong to have considered the depth and nature of F's attachment to Mr and Mrs S when forming his opinion on the incapacity ground; it could only be relevant to welfare. The legitimate aim he had to consider was, it was submitted, that of addressing parental incapacity; adoption was not the only way to do that.

[56] The question was whether, taking the appellant's deficits at their worst, they justified dispensing with her consent and dispensation on the incapacity ground was not a proportionate response. The sheriff's decision was wrong.

[57] In expanding on her second principal submission, senior counsel pointed to the structure of section 31 being such as to preclude dispensation with consent on the welfare ground if the incapacity ground applied: S v L. The sheriff had, however, in her submission, purported to dispense with consent on both grounds. Reference was made, in support of that submission, to the terms of the interlocutor. She accepted, however, that the sheriff's note addressed the welfare ground only on an esto basis and she could not have submitted that the sheriff had erroneously made the order on both grounds if the interlocutor had been in different terms.

[58] If the sheriff's decision on the incapacity ground was wrong then it was, she submitted, for this court to decide, of new, whether the welfare ground applied, a submission for which she prayed in aid the approach of the court in the case of West Lothian Council v McG 2002 SC 411 at paragraph 72 and 74. This court would not, she said, be bound by the sheriff's decision on that ground albeit, she accepted, regard could be had to it. In addressing the welfare ground, senior counsel submitted that the appellant had not shown herself to be particularly unfit, she was a mother who had a positive ongoing relationship with her child and counsel referred again to the high threshold for the granting of an adoption order and the option of a permanence order.

[59] Also, in addressing welfare, the sheriff had failed to comply with his duty under section 73(14) of the 1995 Act. That was material because, she submitted, the statutory advice showed that the children's hearing favoured a permanence order rather than adoption. The sheriff ought to have considered the option of a permanence order notwithstanding that it was not an issue in the case because adoption should only be resorted to if nothing else would do. Whilst acknowledging that the sheriff had weighed up the pros and cons of adoption her submission was, essentially, that he had reached the wrong result.

Submissions for the respondents

[60] Senior counsel for the respondents invited us to refuse the appeal whilst accepting that the sheriff's interlocutor required correction since, contrary to what was clear from his note, he had not decided to dispense with parental consent on both the incapacity and welfare grounds. His discussion of the latter was only on an esto basis, lest he was considered to be wrong on the former.

[61] Responding to the appellant's first principal submission, senior counsel submitted that article 8 was not engaged at the stage of considering whether or not the incapacity ground was established. It was only engaged at the stage of considering whether or not to dispense with parental consent. Then, the decision required to be proportionate in the light of the relevant legitimate aim which was the welfare of the child, in accordance with section 14 of the 2007 Act. Also at that stage, the court required to be satisfied that making an adoption order was better for the child than making no order at all. Regarding the welfare ground, whilst she accepted that it only came into play if the grounds set out in section 31(4) and/or (5) were not established, it was not wrong for the sheriff to have stated what his decision would have been had he not been satisfied on the incapacity ground. She did not suggest that he required to do so but it was not wrong and it was not difficult to see that it might, at appeal stage, be of assistance.

[62] Turning to the sheriff's analysis, it was, she submitted, clear that the appellant's ambivalence regarding FY's responsibility for the death of A which led him to conclude that the incapacity ground was established. He relied also on the appellant's attitude persisting up to and at the time of the proof, that she had known of W's account from an early stage, that she had made it clear to the journalist that she did not accept that FY was responsible and that she blamed W, that social workers had been concerned about her lack of candour as exemplified by her having lied about the basis for her asylum claim, that she had failed to meet W's needs, that she lacked insight as explained by Professor McKay, that she had been quite unrealistic in her proposal that F should be in a shared care arrangement and should ultimately live with her, that she failed to accept that F's primary attachment was to Mr and Mrs S and she viewed them as her parents, that the appellant had been reluctant to take personal responsibility such as in relation to the falsity of her asylum claim and her refusal to believe W, that she was unable to foster the relationship between W and F (given the rift between her and W), and that she was likely to continue in a state of parental incapacity given the persistence of all these features since A's death. These were not, counsel submitted, flimsy or trivial grounds; they were, rather, serious deficits.

[63] Turning to the decision to dispense with consent, senior counsel for the respondent submitted that the sheriff was, in the circumstances, entitled to decide as he did and the decision was proportionate. There was no clearer statement as to F's needs than in the passage in Professor McKay's report which we have quoted above. The sheriff had heard from three expert witnesses and had taken their evidence into account. He had appropriately applied the proportionality test that article 8 required.

[64] Separately, when it came to considering the welfare ground, the sheriff had not erred. He was clearly entitled to reach the conclusion he reached.

[65] Regarding the submission that the sheriff had failed to consider the children's hearing advice, it was, she submitted, ill founded. The sheriff referred to it in terms and to a sheriff's subsequent decision on appeal. The sheriff was not bound to follow the advice. It was, in any event, questionable whether it amounted to clear advice let alone advice that the best outcome for F would be a permanence order and that one should be sought. She accepted that Dr Robinson, one of the witnesses for the appellant, referred to permanence orders. However, that was in response to it being put to her that to enter into a process of working out a shared care arrangement would take time and involve undesirable delay. Dr Robinson was not saying that a permanence order was the right way forward in F's case and she accepted that if that route were to be embarked upon, there would need to be new separate proceedings. Her evidence covered various options but did not recommend any one of them; it was for the court to decide. A permanence order had never been suggested on behalf of the appellant, to any witness, as a reasonable alternative to adoption.

[66] Further, if a permanence order were to be granted, that would not relieve F of uncertainty and could not vest all parental responsibilities in Mr and Mrs S. Annual reviews would still require to take place and the local authority would have to retain responsibility to provide guidance and to decide where she lived. It would not, in short, meet F's needs.

Decision

[67] We are satisfied that there is an error in the interlocutor which is set out at p.70 of the appeal print (p.28 of the sheriff's judgment). The phrase: "........ and section 31(4) of the said Act as well as on the ground set out in section 31(3)(d) of the said Act" should be deleted.

[68] Otherwise, we are not persuaded that we should uphold this appeal.

[69] First, for the reasons we have explained above, at the point of deciding the threshold issue of whether or not the incapacity ground applied, article 8 considerations did not arise so the sheriff cannot be criticised for not having had regard to them at that stage. Secondly, insofar as the appellant may have been trying to argue a wider point - it sounded at times as though she was mounting a general attack on the sheriff's conclusion that the incapacity ground was established - we reject the criticisms that were made. As the facts found and reasoning referred to above show, there was considerably more to the sheriff's conclusion than the appellant's ambivalence about the part played by FY in the death of A. Far from being flimsy and inappropriate, the sheriff's findings and conclusion regarding the appellant's parental capacity related to matters of importance and substance and, for the reasons he explains, went to the heart of the totality of F's needs. That was the correct approach at that threshold stage.

[70] Regarding the criticism that the sheriff did not explain what would be the effect of the appellant's ambivalence, it has first to be remembered that the sheriff's primary position, on his assessment of the evidence, was not a firm conclusion that she was simply ambivalent; at paragraph 157 of his note, he observed that she was "at best" ambivalent but "At worst" she continued to hold W responsible for A's death. Otherwise, he clearly explains that the problem is that, because of the appellant's attitude, she cannot meet the emotional needs of her children and cannot do so in circumstances where F has and will continue to have very real needs in that respect, given what has happened in her family in relation to the death of A. Mr and Mrs S, particularly the latter who has, on the sheriff's assessment, a striking ability to empathise are able, conversely, to meet F's emotional needs. There was no need for the sheriff to spell out that, on his assessment, F would be deprived of important emotional support which will be afforded to her if the orders sought are granted.

[71] As for the criticism that the sheriff was not entitled to take account of F's attachment to Mr and Mrs S when considering whether or not the incapacity ground applied, on the facts of this case, we consider that it would have been inappropriate not to do so. It was relevant because, as the sheriff explains, the appellant failed to understand the nature and depth of that attachment - an attachment which was very important indeed to F, looking at matters from her perspective. Further, she failed to understand how traumatic it would be for F if she were to be removed from the care of Mr and Mrs S. Those failures were demonstrative of parental incapacity.

[72] Thereafter, we are readily satisfied that the sheriff's approach to dispensation with consent on the incapacity ground including his approach to the requisite article 8 considerations, cannot be faulted. It was challenged on the basis that the relevant legitimate aim was to address the parental deficit and the sheriff had failed to take into account that the appellant could have been supported to address it. We do not accept that, for article 8 purposes, the legitimate aim was limited in that way. The legitimate aim which the sheriff required to and did bear in mind was the protection of F's welfare. In any event, we do not accept that there was evidence before the sheriff which should or could have satisfied him that a support scheme was available which would have had the result of correcting the identified parental incapacity.

[73] Regarding the submission that the sheriff's support of continuing contact was demonstrative of inconsistency in his reasoning, we reject it. First, contact with birth parents after adoption can and does happen. Such contact is not, nowadays, inconsistent with adoption. Secondly, whilst it is clear that the sheriff considered that contact with the appellant would be of value to F, he did not make it a condition of his orders precisely because of his concerns about the appellant's failures, particularly her refusal to accept that Mr and Mrs S were acting in F's best interests and would adhere to their stated position, namely that they encouraged F to maintain contact with the appellant. A formal condition of contact was, thus, likely to render the matter litigious in the future. The sheriff's support for contact cannot be interpreted as an endorsement of the appellant's parental capacity for the purposes of the section 31 assessment.

[74] Nor are we persuaded that the sheriff erred in relation to his duty under section 73(14) of the 1995 Act. It is not at all clear that the advice of the children's hearing was that a permanence order within the meaning of section 80 of the 2007 Act would be appropriate; at one point it seems that "permanence" is being used as a synonym for "open adoption" and there is no reference at all to where the relevant rights and responsibilities would be vested and/or whether any additional conditions or authority to adopt, ought to be considered. Even if the advice of the children's hearing falls to be read as indicating that a majority were recommending that a permanence order within the meaning of section 80 of the 2007 Act, be granted, (a) the source of the use of the word "permanence" appears, from the terms of the reasons for the hearing's decision of the same date, to have been Dr Robinson, who gave evidence before the sheriff and did not make any recommendation that there be a permanence order nor, it seems, demonstrate any clear understanding of what such an order involved, and (b) its terms are so inspecific as not to have required the sheriff to seek to explore it as a serious option, particularly where, as we have observed, not only was it not being proposed by the appellant but, according to her averments, she did not consider that such an order would be in F's best interests.

[75] Turning to the sheriff's discussion of what would have been his conclusion on the welfare ground if he had had to consider it, he did not require to explain what his conclusion would have been but he was not wrong to have done so. If we had been persuaded to uphold the appellant's primary submission, it would have been of assistance to this court. Further, importantly, we cannot fault his reasoning or conclusions (Note: paragraphs 243 - 254). His assessment of F's welfare needs was amply supported by the findings in fact. His conclusion that those needs showed that her welfare required that the appellant's consent be dispensed with was proportionate; indeed, his approach to article 8 in the context of the welfare ground was not seriously challenged. It would, in the circumstances of the case, have been surprising if the sheriff had reached any other conclusion. Had we required to consider this ground, we would have placed considerable weight on the sheriff's reasoning; we cannot see that there would have been any reason for departing from it.

[76] We would add that, when account is taken of the appellant's new position that there should be a permanence order rather than adoption, the conclusion that the welfare ground applies would only be reinforced. Were such a course to be followed now, there would be further delay and uncertainty and the issue determined by the sheriff would inevitably be litigated again because the appellant would not, according to her counsel, agree to authority to adopt being included in any permanence order. Since the local authority support Mr and Mrs S's application for adoption, they would be bound to seek authority to adopt. F knows about the outstanding adoption application; she would know about any new proceedings because, quite apart from anything else, her views would be relevant. Yet, as the sheriff's findings have clearly demonstrated, the most pressing of F's needs is to know that she has "security of tenure" with Mr and Mrs S, the persons with whom she has her primary attachment. We cannot help but conclude that the appellant's proposal that the permanence order route now be explored is, unfortunately, demonstrative of her continuing to fail to understand F's emotional needs and to be able to see matters from F's perspective.