Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 36

XA83/15

 

Lady Paton

Lord Drummond Young

Lord McGhie

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Appeal

by

KR

Appellant;

against

STIRLING COUNCIL

Respondent:

in an application by the respondent for a permanence order in respect of the child CNRRR

 

Appellant:  Aitken;  Balfour + Manson LLP

Respondent:  Sharpe;  CMS Cameron McKenna

24 May 2016

[1]        The appellant is the mother of a child, CNRRR (referred to as “the child”), who was born on 26 April 2010. The respondent, Stirling Council, applied to the sheriff for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of the child. The action proceeded to a proof before the sheriff, following which the sheriff made a permanence order. That order vested a range of parental responsibilities and rights in the respondent.  The sheriff also granted authority for adoption.  In pronouncing the permanence order and granting authority for adoption, the sheriff dispensed with the parental consent of the appellant, and also that of JS, the father of the child, on the ground that they were unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and were likely to continue to be unable to do so in terms of section 83 of the 2007 Act. The sheriff further ordered that there should be only indirect “letterbox” contact, without the exchange of photographs, between the child and the appellant, and granted authority for the child to be adopted in terms of section 83 of the 2007 Act.

[2]        The appellant has appealed against the sheriff’s decision. She contends that in making a permanence order the sheriff failed to apply the critical test for the making of such an order, that in section 84(5)(c)(ii) of the Adoption and Children (Scotland) Act 2007. Furthermore, she submits that the facts as found by the sheriff are insufficient to satisfy that test, if properly interpreted, and that on the facts found the grounds for dispensing with parental consent under section 83(2) and (3) of the 2007 Act are not satisfied. We propose to summarize the facts found by the sheriff; then to consider the requirements of the 2007 Act, in particular sections 83 and 84; and finally to consider the application of those requirements to the facts as found; for this purpose we have regard not merely to the sheriff’s formal findings in fact but to the other facts that appear from his judgment.

 

Facts

[3]        The child’s father has had no involvement in the child’s life, as his relationship with the mother had ended before the child was born. The relationship involved physical abuse by the father towards the mother. The mother has contact with her own mother, but the two have a volatile relationship. On 5 August 2010 social workers raised concerns with the mother about contact that she had had with RK, a convicted sex offender; the mother maintained that she had been unaware that RK was a sex offender. On 21 February 2011 the child was placed on the child protection register as a result of concerns over non-engagement, sexual abuse, emotional abuse and neglect. At a meeting of professionals on 22 March, however, it was decided that there were insufficient grounds for a child protection case conference or for compulsory measures of care. The child began to attend a nursery in January 2011, but his attendance was sporadic and the nursery raised concerned about his cleanliness. Early in 2012 the child was enrolled at another nursery, which he attended on a regular basis.

[4]        Throughout 2011 the child’s health visitor made 24 visits to address issues of safety in the house, safe storage of medicines, play, diet, nutrition, and issues of health and parenting. The health visitor had concerns about the child’s diet but described his care overall as being adequate.  On 27 October 2011 the health visitor witnessed the mother handling the child roughly.  On 16 February 2012 the health visitor prepared a report recommending that the child be placed on the child protection register.  On 21 February the mother and grandmother attended an initial child protection case conference, but were asked to leave the meeting as a result of their behaviour.  In May or June 2012 the mother formed a relationship with another man, DD, who had been released from prison on licence for violent offences.  On 4 June the child’s grandmother alleged to social workers that the mother and DD had been drinking together and implied that this presented a potential risk to the child’s safety.

[5]        On 20 June 2012 the grandmother reported to social workers that she had noted bruises on the child’s face and head.  The health visitor arranged an appointment with the mother for later that day, but the mother failed to keep the appointment and claimed to have been visiting her father who had suffered a fit. The sheriff found as a fact that the mother deliberately avoided the health visitor to avoid the child’s injuries’ being reported to social workers.  On the same day a child protection investigation was undertaken, in the course of which the mother gave a statement to a social worker and a police officer. The explanation that she gave for the child’s injuries was different from the one that she had given to the grandmother earlier in the day. The sheriff found as a fact that the mother gave inconsistent and contradictory explanations for the injuries on those occasions and that she gave yet another different explanation at the proof. The mother did not seek medical attention for the child following the discovery of those injuries.  Nevertheless the child was examined by a consultant paediatrician on the same date.  It was found that he had sustained numerous bruises to his forehead, cheeks, back, side, chest, thigh and knee.  The consultant was of opinion that the bruising on the child’s face and head was likely to be the result of blunt force trauma.  The sheriff found as a fact that some of the injuries were non-accidental and were caused by DD.

[6]        On 21 June 2012 a child protection order was granted at Stirling Sheriff Court, and the child was accommodated with foster carers when he was discharged from hospital that day.  He has remained with foster carers since then. The sheriff found that the mother has exercised contact on a regular basis, and her record of attendance at contact has been good. Contact has been of reasonable quality, although there have been difficulties as a result of the mother’s behaviour, which could be unpredictable and at times unsettling for the child. The child knew that the appellant was his mother. On 21 December 2012 grounds of referral were established at Stirling Sheriff Court on the basis of lack of parental care (Children (Scotland) Act 1995, section 52(2)(c)) and the mother’s relationship with a Schedule 1 offender (1995 Act, section 52(2)(d)).  A children’s hearing was held on 7 January 2013, when it was decided that matter should be reviewed after three months to assess whether rehabilitation to the mother’s care was in the child’s interests. A child protection case conference was held on 29 January, at which the mother indicated that she wished to resume the child’s full-time care.  It was agreed that the potential for rehabilitation should be assessed over a three-month period, and it was anticipated that extensive work would be done with the mother by the social worker allocated to the child, to focus on perceived deficiencies in the mother’s ability to care for him.  The social worker offered to refer the mother to a parenting group, and she indicated a willingness to co-operate.  When a specific opportunity was offered, however, in February 2013, the offer was declined, apparently on the basis that the mother required to help her own mother to move house.

[7]        During February 2013 concerns were raised, initially by the police, that the mother had resumed a relationship with RK.  During March the child’s case was transferred to another social worker, who recommended that moves should be made towards a permanence order, with the child outwith the care of the mother.  In April a decision was made at a review meeting to pursue permanence, although the newly allocated social worker was unaware of the child protection case conference that had taken place on 29 January and the failure of her predecessor to conduct the work identified at that case conference.  On 12 April 2013 the children’s hearing took place, as a result of which contact between the mother and the child was reduced from twice per week to once per week.  In July 2013 a police report indicated that the mother was in a relationship with yet another registered sex offender, DL. The mother and DL have subsequently had a child born on 12 June 2014.  That child was accommodated through a child protection order on his discharge from hospital following his birth.  DL had been convicted of public indecency, lewd and libidinous practices and breach of the peace with a sexual element.  At the date of the proof he and the mother were still in a relationship.

[8]        Thereafter contact between the child and the mother was reduced, and since February 2014 has taken place once every six weeks.  On 12 March 2014 the child moved to reside with prospective adopters, and he has remained in their care since that date. The sheriff found as a fact that the child is happy and settled with the prospective adoptive parents.  He attends nursery. There are concerns about his behaviour before and after contact with the mother, and the prospective adopters do not believe that such contact is good for the child, although they would support indirect letterbox contact without photographs.

[9]        The sheriff found that the mother has consistently failed to engage with social workers, health professionals and other agencies who had tried to offer assistance with parenting the child.  She has failed to follow advice about not associating with registered sex offenders, and remains in a relationship with a registered sex offender who has been physically abusive towards her.  The mother’s domestic circumstances since March 2013 are such, the sheriff found, that rehabilitation of the child to her care would not be conducive to the child’s welfare.  There are no members of the child’s extended family appropriate to care for the child on a permanent basis. The child is presently safe, settled and making progress in his placement with his current carers.  On that basis the sheriff found that it would be seriously detrimental to the welfare of the child to return him to the care of his mother or father.

[10]      On the basis of the foregoing findings in fact, the sheriff made a number of findings in fact and law.  So far as material, these are as follows:

“[38] It would be better for the child that a permanence order is made than that it should not be made.

[39] The child’s residence with the [mother] is likely to be detrimental to the welfare of the child.

[40] The child has been placed for adoption.

[41] The welfare of the child requires that the consent of the parents to the making of the order be dispensed with.

[42] The [mother] is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights in relation to the child and is likely to continue to be unable to do so”.

 

On that basis the sheriff made a permanence order and granted authority for the child to be adopted.  In the order he dispensed with the consent of the mother and the natural father of the child, on the ground that they were unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and were likely to continue to be unable to do so.

 

Legal requirements of the Adoption and Children (Scotland) Act 2007

[11]      Permanence orders and the granting of authority to adopt as an aspect of such an order are dealt with in sections 80-84 of the Adoption and Children (Scotland) Act 2007.  The effect of a permanence order, described in section 81 of the Act, is to vest in the local authority the responsibility of providing guidance to the child and the right to regulate the child’s residence: in essence, the basic responsibilities of a parent.  In addition, section 80(2)(c) provides that, if the conditions set out in section 83 are met, such an order may grant authority for the child to be adopted.  That has happened in the present case.  Section 83 sets out the conditions applicable to the making of an order granting authority for adoption, but such an order is also subject to the important provisions of section 31 of the 2007 Act, which deal with dispensing with parental consent to such an order.  Section 84 sets out the conditions applicable to the making of the permanence order itself.  Both section 83, taken together with section 31, and section 84 are in issue in the present case.  The fundamental issue, however, is whether the sheriff was entitled to make a permanence order, and it is accordingly convenient to begin by considering the provisions of section 84.

 

Permanence orders: section 84

[12]      Section 84 sets out conditions and considerations applicable to the making of a permanence order. Its material provisions are as follows:

“(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 –

…

(c) be satisfied that –

(i) there is no person who has the right … 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”.

 

[13]      Thus section 84 imposes two critical conditions if a permanence order is to be made in a case where the natural parent does not consent. First, in terms of subsection (3), the court must consider that it would be better for the child that the order should be made than that it should not be made; that decision must be made in the light of the requirement of subsection (4) that the welfare of the child throughout childhood is to be the paramount consideration.  Secondly, in terms of subsection (5)(c)(ii), the court must be satisfied that the child’s residence with the parent is, or is likely to be, seriously detrimental to his or her welfare.  Of the two conditions, that in subsection (5)(c)(ii) is the more fundamental: it imposes a threshold test, in the sense that, if it is not satisfied, the court is not permitted to dispense with the parent’s consent.  It is only if the test is satisfied that the court requires to go on to consider the welfare of the child.  This is apparent from the discussion of section 84 by Lord Bonomy in TW v Aberdeenshire Council, [2012] CSIH 37; 2013 SC 108, at paragraphs [12]-[13].  In that case the court rejected an argument that the provisions of subsections (3) and (4), which deal with the welfare of the child, have a particular core status.  Subsections (3), (4) and (5) imposed separate requirements, all of which had a bearing on whether a permanence order should be made. Nevertheless,

“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 [subsection] (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”.

 

That passage does not appear to have been cited to the sheriff in the present case, but it is clearly of fundamental importance to any application for a permanence order. The critical point is that the requirements of subsection (5) set a threshold test, and unless that test is satisfied no permanence order can be made and any further consideration of the other provisions of section 84 is irrelevant.

[14]      The importance attached to the threshold test in subsection (5) in TW v Aberdeenshire Council is reflected in other decisions, notably the decision of the UK Supreme Court in the English case of Re B (a Child), [2013] UK SC 33; [2013] 1 WLR 1911, at paragraph [29] per Lord Wilson and paragraphs [177] et seq per Lady Hale.  The fundamental point is that depriving the parents of a child of their parental authority at common law is a most serious matter, and it should only be done if strict criteria are satisfied.  This is made clear in the speech of Lord Templeman in Re KD (A Minor) (Ward: Termination of Access), [1988] AC 806, at 812 (a passage cited by Lady Hale in Re B at paragraph [179]):

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered”.

 

That is based on general common law principles, and provided that these are satisfied it is generally unnecessary to consider article 8 of the European Convention on Human Rights: see in particular Lord Neuberger at paragraph [62] of Re B.

[15]      The threshold test is in our opinion a matter of fundamental importance, and we must express regret at the manner in which section 84 of the Adoption and Children (Scotland) Act 2007 is structured.  In that section the fundamental threshold provision comes at the end, after the subsections dealing with the welfare of the child.  It would clearly be more sensible to state the threshold test at an earlier point, before the welfare provisions, because the threshold test must be satisfied before any of the other provisions becomes relevant.  As matters stand there is an obvious risk that the sheriff will fail to appreciate the fundamental importance of the criterion in subsection (5).  That is what appears to have happened in the present case.  We were informed that subsection (5) was added to section 84 at a very late stage in the Parliamentary procedure, when it became apparent that no criterion for dispensing with parental consent had been specified.  If that is so, it clearly represents a serious error on the part of those responsible for determining the policy of the section and instructing Parliamentary counsel.  The result is a very poor piece of draughtsmanship.  For the future, any court in considering whether or not to impose a permanence order must have regard to the fact that the test in subsection (5) is a threshold test, and that it must be satisfied before the other provisions of section 84 become relevant.

 

Authority for adoption: section 83

[16]      Orders granting authority for adoption are dealt with in section 83 of the 2007 Act. Paragraphs (a) and (b) of section 83(1) require that the local authority should have requested that a permanence order include the grant of authority for adoption and that the court must be satisfied that the child has been or is likely to be placed for adoption. Section 83(1)(c) then deals with the question of parental consent to adoption.  If such consent is not granted, the condition in section 83(1)(c)(ii) must be satisfied before the authority to adopt can be granted.  The latter provision authorizes the court to dispense with the parent’s consent to the making of such an order on the grounds specified in subsection (2).  Subsection (2) sets out a number of grounds, as follows:

“(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 (3) or (4) applies,

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

 

In the present case the provisions that are potentially relevant are paragraph (c) of subsection (2), taken together with subsection (3), or paragraph (d).  Subsection (3) applies “if the parent or guardian… is, in the opinion of the court, unable satisfactorily to discharge” parental responsibilities and rights and is likely to continue to be unable to do so.  Finally, section 83(1)(d) requires that the court should consider that it would be better for the child if it were to grant authority for adoption than if it were not to grant such authority.

[17]      These provisions contain certain crucial tests.  First of all, if the parents do not consent to adoption, such consent can only be dispensed with on the grounds set out in subsection (2) together with subsections (3) or (4).  So far as relevant to the circumstances of the present case, these require one of two conclusions: either that the court should form the opinion that the parent is unable satisfactorily to discharge the responsibilities and exercise the rights of a parent, and is likely to continue to be unable to do so, thus satisfying the test in subsection (3); or that the welfare of the child “requires” consent to be dispensed with, in accordance with subsection (2)(d).  Secondly, the court must be satisfied, in terms of subsection (1)(d), that it would be better for the child that authority to adopt be granted then if such authority were not granted.  The tests in subsection (2) are critical: unless one of them is satisfied the court cannot dispense with parental consent, and the question of the child’s welfare does not arise.  It is only if the threshold test is satisfied that the welfare test embodied in subsection (1)(d) becomes material.  The threshold test in subsection (3) is based on the capacity of the natural parent to discharge parental responsibilities and exercise parental rights.

[18]      The corresponding tests in relation to section 31 are discussed at length by Lord Reed in S v L, 2013 SC (UKSC) 20, at paragraphs [24]-[37], and the compatibility of the provision with rights under the European Convention on Human Rights is discussed at paragraphs [38]-[49].  For present purposes, it is worth emphasizing that the threshold tests are to be construed strictly.  Three passages in S v L are relevant.  First (at paragraph [33]),

“[T]he making of an adoption order against the wishes of a parent is a very serious intervention by the state in family relationships. It follows that the court will not lightly authorize such intervention. It did not require the Convention to teach us that”.

 

Secondly (at paragraph [34]),

“It follows that legislation authorizing the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity.… There must… 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”.

 

Thirdly (at paragraph [40]), quoting from the Strasbourg decision in YC v United Kingdom (Application No 4547/10), 13 March 2012; [2012] 2 FLR 332; [2012] Fam Law 932,

“[F]amily ties may only be severed in very exceptional circumstances and… everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family…. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing…. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained…”.

 

 

Application of the legal requirements to the facts

Permanence order

[19]      The Sheriff’s findings in fact and law are set out at paragraph [10] above.  So far as a permanence order is concerned, the critical findings are that

“[38] It would be better for the child that a permanence order is made than that it should not be made”.

[39] The child’s residence with the respondent is likely to be detrimental to the welfare of the child”.

 

It is the second of these findings that appears to be intended to address the threshold test found in section 84(5)(c)(ii).  It does not, however, address the strict criterion that that paragraph adopts, namely that the child’s residence with the natural parent “is, or is likely to be, seriously detrimental to the welfare of the child” (emphasis added). We have already emphasized the importance of this criterion.  Mere detriment to the welfare of the child is not enough to satisfy the threshold test; serious detriment is required. While the question of serious detriment involves an evaluative exercise, largely dependent on the facts of the particular case, it is essential that the legal component in that exercise should be properly addressed. For that reason the court must consider whether there is serious detriment, and the sheriff does not appear to have addressed the issue in those terms.  Furthermore, the threshold test appears to have been considered after the sheriff decided that the welfare test was satisfied (finding [38]).  In so doing, it seems likely that he was misled by the unfortunate structure of section 84.  Nevertheless, if the welfare test is addressed before the threshold test, there is an obvious risk that the threshold test will be considered from the perspective of best interests rather than as a critical test in its own right.  For these reasons we are of opinion that the sheriff was in error in the reasoning whereby he concluded that a permanence order should be granted.

[20]      The result is that this court must itself give consideration to whether the threshold test in section 84(5)(c)(ii) is satisfied on the basis of the facts found by the sheriff and the other material accepted by him in his judgment. We have come to the conclusion that the threshold test is satisfied on that basis.  In the first place, the sheriff expressly found (finding of fact at paragraph [36]) that

“[The mother’s] domestic circumstances since March 2013 are such that rehabilitation of the child to her care would not be [conducive] to the child’s welfare.… The child is presently safe, settled and making progress in his placement with his current carers. It would be seriously detrimental to the welfare of the child to return him to the care of his mother or father”.

 

We note that the expression “seriously detrimental” is made in that finding in fact, albeit that it is not repeated in the corresponding finding in fact and law. There is a difference between the finding in fact and the statutory test, in that the finding in fact records that it would be seriously detrimental to the child’s welfare to return him to the care of his mother or father, whereas the statutory test is that the child’s residence with the relevant parent would be seriously detrimental to his welfare. Nevertheless, we consider that the substance of these two expressions is similar, and we accordingly consider that the finding in fact goes a considerable distance to acceptance that the statutory threshold test is met.

[21]      Secondly, the sheriff (at paragraph [117] of his judgment) expressly accepted the reasons put forward in argument by counsel for the local authority. These included the following (narrated by the sheriff at paragraph [78]):

“It was submitted that the seriously detrimental test (section 84(5)(c)(ii) of the 2007 Act) was met. It was submitted that the evidence demonstrated that the child’s mother had issues of general hygiene, a lack of basic parenting skills and a volatile relationship with her own mother, had failed to engage with support agencies, had relationships with Schedule 1 offenders [a reference to the sex offenders’ register] and was unable to protect the child from being assaulted whilst in her care. On 21 December 2012 grounds of referral were established in respect of the child on the basis that there was a lack of parental care in terms of section 52(2)(c) of the Children (Scotland) Act 1995 and the mother’s relationship with a Schedule 1 offender in terms of section 52(2)(d) of the 1995 Act. It was also submitted there was evidence that the mother would not accept criticism or support from social workers, health professionals or other voluntary agencies such as Women’s Aid.… It was submitted that she had no insight into her own issues as a parent and she had no understanding of the risks posed by her association and relationships with registered sex offenders…”.

 

On the basis of the formal findings in fact made by the sheriff, which we have summarized at paragraphs [3]-[9] above, we are satisfied that those conclusions were entirely justified. They involve very serious allegations, and if they are accepted it is inevitable in our view that the sheriff would have required to hold that residence with the mother would be, or would be likely to be, seriously detrimental to the child’s welfare

[22]      The finding in fact at paragraph [36] must obviously be taken with the sheriff’s acceptance of the argument for the local authority.  When that is done, we are of opinion that the test in section 84(5)(c)(ii) is satisfied.  For the mother it was contended that the sheriff had not addressed the threshold test, as explained in particular in TW v Aberdeenshire Council, supra, as the test had not been addressed in the submissions for the local authority that the sheriff had adopted.  Nevertheless, it appears to us that when the test is properly addressed it was inevitable that it was satisfied.  On that basis the welfare test, as set out in subsections (3) and (4) of section 84, falls to be considered.  On this matter the sheriff concluded, at finding in fact and law [39], that the child’s residence with the mother was likely to be detrimental to his welfare.  We consider that that conclusion is clearly warranted by the evidence.

[23]      For the foregoing reasons we are of opinion that the challenge to the sheriff’s making of a permanence order must fail, notwithstanding the error in his method of reaching that conclusion, and in particular his failure to address the threshold test.

 

Adoption

[24]      The mother further contended that the sheriff erred in law in dispensing with her consent to placement for adoption in terms of section 83 of the 2007 Act. The sheriff held that the welfare of the child required that the consent of the parents to the making of an adoption order be dispensed with, and that the mother was unable satisfactorily to discharge her parental responsibilities or to exercise her parental rights, and was likely to continue to be unable to do so: findings in fact and law [41] and [42], set out at paragraph [10] above.

[25]      For the mother it was contended that the sheriff had failed to consider the question of welfare in respect of the adoption in accordance with the principles set out in S v L, supra, and in the subsequent English decisions in Re B (A Child), supra, and Re B-S (Children) (Adoption Order: Leave to Oppose), [2014] 1 WLR 563;  the latter case involves a detailed and helpful analysis by Munby P of the law relating to non-consensual adoption.  The latter approach had been approved in Scotland in Fife Council, [2015] CSIH 74, decided after the sheriff’s decision.  In particular, it was said that the sheriff had not approached an adoption order as an order of last resort, as suggested in those cases.  Furthermore, it was submitted that the sheriff had not properly taken into account the impact of article 8 of the European Convention on Human Rights and the concept of necessity: an adoption order should only be made without the parent’s consent if it is necessary rather than merely reasonable or desirable.

[26]      In our opinion the sheriff was justified in dispensing with the mother’s consent to the placing of the child for adoption. The relevant test is that set out in section 83(3) of the 2007 Act, discussed above at paragraphs [16]-[18].  The critical finding that is required in every case is that the court should conclude that the parent is “unable satisfactorily to discharge” his or her parental responsibilities and rights and is likely to continue to be unable to do so. The sheriff addressed that question expressly in his findings in fact and law at paragraph [42].  On the basis of the evidence narrated in the findings in fact proper, supplemented by the arguments for the local authority which the sheriff expressly adopted, we are of opinion that that is a conclusion that he was fully entitled to reach. On this matter, the sheriff was entitled to rely on the same evidence as was relevant to the making of a permanence order under section 84: see S v City of Edinburgh Council, [2012] CSIH 95; 2013 Fam 6R2, at paragraph 29 per Lady Paton. The result is that he was entitled to have regard to the totality of the evidence summarized at paragraphs [3]-[9] above.

[27]      For the appellant it was submitted that the sheriff had failed to carry out a global evaluation of the options available for the child’s future upbringing in deciding which of those best met the duty to afford paramount consideration to the child’s welfare: Fife Council, supra, at paragraphs [63]-[64]. In our opinion this criticism is misplaced. The sheriff expressly found that the mother was unable satisfactorily to discharge her parental responsibilities or exercise her parental rights, on the basis of the history of her involvement with the child. Moreover, in the part of his judgment dealing with his decision, the sheriff stated (at paragraph [120]) that

“[M]y conclusion is that [the child’s] welfare would be best served by making a permanence order with authority to adopt.  Accordingly, I am satisfied that the welfare of the child requires that the consent of the respondent should be dispensed with. In addition, I am satisfied that the respondent is unable satisfactorily to discharge her parental responsibilities or parental rights and is likely to continue to be unable to do so”.

 

Strictly speaking, as counsel for the mother pointed out, those issues are addressed in the wrong order; ability to discharge parental responsibilities and rights should be considered before the decision to make a permanence order with authority to adopt.  Nevertheless, the substance of what the sheriff said is clear: the mother was unable satisfactorily to discharge her parental responsibilities and rights, and therefore the welfare of the child required that consent should be dispensed with.  As we have indicated, on the facts found we consider that that is a conclusion that the sheriff was fully entitled to reach.

[28]      The sheriff found at paragraph [41] that the welfare of the child required that the consent of the parents to the making of the order should be dispensed with.  That addresses the test in section 83(2)(d), but that section only becomes operative where neither subsection (3) nor subsection (4) applied.  In the present case the sheriff concluded that subsection (3) was applicable, and consequently it was not necessary for him to go on to consider the application of the test in section 83(2)(d).  It was, however, accepted by both parties that, when a court makes a permanence order with authority to adopt in terms of section 84(3) of the Act, the court must reach the conclusion that such an order is necessary. That is apparent from the decision in S v L, supra, at paragraph [34] (quoted at paragraph [18] above), where it is stated that any legislation that authorizes the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity.  Furthermore, in the 2007 Act, support for such a view can be found in section 14, where it is provided that, if an adoption order is to be made, the court must regard the need to safeguard and promote the welfare of the child throughout his or her life as the paramount consideration (subsection (3)), and any adoption agency must consider whether there is a better practical alternative to adoption (subsections (6) and (7)).

[29]      We are nevertheless of opinion that the sheriff addressed the test of necessity.  At paragraph [41] of the findings in fact and law he held that the welfare of the child “required” that the consent of the parents be dispensed with, and at paragraph [42] he held that the respondent was unable satisfactorily to discharge her parental responsibilities.  Both of these findings in our view involve a test of necessity.  Furthermore, we consider that a finding that adoption was necessary, and that no alternative was available, follows clearly from the findings in fact made by the sheriff.  In this connection, we attach particular importance to the fact that the mother had had a series of relationships with registered sex offenders and men disposed to violence.  We also consider it important that the appellant was unable to protect the child from injuries as a result of an assault by one of her partners. In respect of those injuries, she gave inconsistent explanations for the injuries to a social worker and the police and to the child’s grandmother, and during the proof the sheriff notes that she gave a further explanation that had not previously been given. The sheriff further found that, following the injuries suffered by the child, the mother deliberately avoided the health visitor to avoid a report to social workers, and following the discovery of the injuries she did not seek medical attention for the child.  Finally, the child has been with the prospective adopters for a significant period and the sheriff finds that he is well settled with them.  All of these factors point in our view very clearly to the conclusion that the test of necessity was satisfied.  Furthermore, no issue of proportionality arises on the basis of the facts found.

[30]      It was further contended on behalf of the mother that the sheriff’s determination was incompatible with article 8 of the European Convention on Human Rights.  In our opinion this argument must be rejected. It is clear from the discussion of the law in S v L, supra, at paragraph [35], that, provided that the test of necessity is met, there should be no contravention of Convention rights. While proportionality is also potentially relevant (ibid at paragraph [37]), if necessity can be demonstrated it is difficult to understand how proportionality can be an additional factor, except perhaps in an exceptional case.  In the present case we consider that necessity is demonstrated on the basis of the sheriff’s findings in fact, and it has been held to exist by the sheriff, in his finding that the child’s welfare “requires” that consent should be dispensed with.

 

Contact

[31]      The final issue raised by the mother is contact.  In his findings in fact and law the sheriff held (paragraph [44]) that direct contact between the child and the mother would not safeguard or promote the child’s welfare.  On that basis he restricted contact to indirect letterbox contact, without the exchange of photographs. In his findings in fact the sheriff notes that there had been concerns about the child’s behaviour before and after contact with his mother; he wets the bed and has nightmares. The prospective adopters did not believe that contact was good for the child. In his decision on this matter (paragraph [121]) the sheriff stated that he was satisfied that the evidence did not support the proposition that contact to date had been beneficial to the child.  He further noted that, on the contrary, he accepted evidence that the child had been distressed before and after contact, and stated that he was satisfied that there was no benefit to the child in contact.  On the basis of the findings in fact, we consider that the sheriff was fully entitled to make the foregoing findings. We accordingly conclude that there is no basis for interfering with the sheriff’s decision on the question of contact.

[32]      For the mother it was argued that the denial of direct contact was incompatible with article 8 of the European Convention on Human Rights.  It was submitted that the sheriff’s judgment did not disclose that he carried out any balancing exercise identifying the factors which clearly made the termination of contact necessary and justified in the paramount interests of the child.  Furthermore he gave no proper explanation of why it was necessary that contact should cease. In our opinion the explanation given by the sheriff for the cessation of direct contact is adequate in the light of his findings in fact.  In particular, the findings disclosed problems attendant upon direct contact, and also indicated the mother’s continuing association with registered sex offenders with a propensity to violence.  In particular, the sheriff expressly stated that he accepted evidence that the child had been distressed before and after contact.  He further referred to the prospective adopters’ opposition to contact, and held that he was satisfied that there was no benefit to the child in contact. Those findings are in our opinion sufficient to ensure compatibility with article 8.

 

Conclusion

[33]      For the foregoing reasons we will refuse the appeal, notwithstanding the incorrect approach adopted by the sheriff to the threshold test under section 84 of the 2007 Act.