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Cite as: [2000] ScotSC 27

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THE CITY OF EDINBURGH COUNCIL v. D. AND F. [2000] ScotSC 27 (22nd September, 2000)

 

 

 

 

 

E/6/99

JUDGMENT BY SHERIFF NIGEL MORRISON, QC

in the cause

THE CITY OF EDINBURGH COUNCIL

against

D and F

 

 

 

Edinburgh, 22 September 2000

The sheriff, having resumed consideration of the cause, finds in fact that:-

1. The first respondent, who was born in 1957, is the mother, and the second respondent, aged 25 years, is the father, of M, a daughter who was born on 13 January 1998.

2. The first respondent has had four children. The first child, LG, is no longer alive. The second, LW, is subject to a supervision requirement to live with her maternal grandmother. The second respondent is the father of the third (M) and fourth child (B), both of whom live with foster parents. B was born on 8 July 1999.

3. M did not put on weight appropriately, there being variable weight gain between 24 February and 31 March 1998. While in hospital between 31 March and 4 April, M gained weight. But, after being returned to her parents, M gained no weight between 4 and 14 April and grew only three centimetres.

4. M was not thriving in the care of the respondents.

5. The second respondent was violent towards the first respondent on 27 January 1998.

6. The second respondent agreed to register with a doctor so that he could be referred to a psychiatrist to tackle the question of his violence. He did not do so.

7. The second respondent did not co-operate at all, and the first respondent was less unco-operative, with the social work department. The second respondent did not take steps to deal with domestic violence. The respondents did not co-operate with respect to the support and monitoring of M's development in regard to her weight.

8. During attempts by the social work department to rehabilitate M with her parents, the first respondent did not settle in her mother's care and the first respondent always required supervision during contact visits at the children's centre. The second respondent, though interacting appropriately with M, exercised contact only once between 24 April and November 1998.

9. That the second respondent exercised contact only once was substantially due to his lack of co-operation with the social work department. He attended only one contact visit out of four that were arranged in that period without explanation for his failure to attend the other three.

10. Rehabilitation of M with her parents was not successful.

11. The second respondent was and is violent towards the first respondent. He has done nothing to curb it.

12. Violence has to be addressed. A child should not be returned to a violent environment, because he or she may be affected by violence whether or not a victim.

13. Neither respondent is capable of meeting M's needs.

14. There is a weak relationship between the first respondent and M. The second respondent has not maintained contact. He has sacrificed M's interests for his own.

15. M is now two years old. She has a good relationship with her foster parents and has formed a bond with them.

16. The foster parents intend, if M is freed for adoption, to petition the court to adopt M. They would provide M with a loving home.

17. Contact for the respondents with M should be supervised contact twice a year. M's foster parents are agreeable to such contact. If the second respondent does not re-establish contact, then he should have only indirect contact.

18. A reasonable parent would not withhold agreement in this case on the issue of contact having regard to the appropriate level of contact to which the foster parents are willing to see take place.

19. If B were adopted he could not be adopted by M's foster parents. It is unlikely that B and M would be adopted by one family. It would not be in M's best interests to be moved from her foster parents to other foster parents who would be in a position to adopt both M and B were they free for adoption. It is not essential for M's well-being that she be adopted with B. A reasonable parent would not withhold consent to adoption on the ground that M was not likely to be adopted by a family who would adopt B.

20. Contact between M, B and LW will be maintained when LW wishes to have contact.

21. Adoption would promote and secure M's welfare throughout her life.

22. There are no alternatives to adoption.

23. No reasonable parent would withhold consent to the making of an adoption order for M.

Finds in fact and in law that:-

1. The respondents have unreasonably withheld their agreement to the making of an adoption order in respect of their child M.

2. The agreement of the respondents to the making of an adoption order in respect of M should be dispensed with.

Therefore, grants the petition; dispenses with the agreement of the respondents to the making of an adoption order in respect of their child M; declares M free for adoption under section 18(1) of the Adoption (Scotland) Act 1978; and sanctions the cause as suitable for the employment of junior counsel.

 

 

NOTE

Introduction

[1] The petitioner seeks to have one of the respondents' children, M, freed for adoption. The respondents wish to have M returned home so that they can bring her up themselves. The principal issue was whether the respondents were withholding their agreement unreasonably in the circumstances that had arisen.

[2] It is important in petitions for freeing for adoption that the cases are dealt with expeditiously and on consecutive court days. This has not happened in this case, and that requires some explanation. Parties sought five days for a proof which was finally set down to begin on 7 February 2000. The case lasted for 17 days, the last day of submissions being 5 May. It was not possible to hear the case on consecutive court days or within a reasonable time, in spite of best endeavours, partly because these days had not been sought in the first place and because of the non-availability of counsel, but particularly because of the current crisis in the sheriff courts resulting in a shortage of shrieval availability. In the last week of June, when my decision was shortly to be issued, I was informed about a letter dated 21 June, addressed to the sheriff clerk from the first respondent's solicitors, stating that the first respondent was no longer resisting the petitioner's application. The solicitors wondered what should be done next. This new circumstance, I considered, would affect the second respondent's case on which his counsel might wish to address me and would require some revision of my judgment. I instructed that the case be put out by order. For reasons that I have not been able to ascertain, that hearing did not take place until 3 August. On that date I was informed that the first respondent, who had left the second respondent and was living with her mother, had changed her mind again and was opposing the petition. The respondents had, however, separated permanently. In this event the nature of the respondents' case was affected by the separation. It was agreed that I would have to hear further submissions on the consequences of the separation on the case and possibly, at the suggestion of the agents for the parties, some more evidence on the matter. For the same reasons as before, the date for that further hearing could not be until 7 September. For a case of this kind to take over seven months to complete is wholly unacceptable.

[3] D, the first respondent, one of five children, was born in 1957. She has suffered from cerebral ataxia since birth. The significance of the ailment for this case is that it causes the first respondent problems of balance. The first respondent was married first in the mid 1970's. There was one daughter, LG. The first respondent then married again. LG died and that marriage came to an end. The first respondent entered her third marriage and there was a daughter LW. The first respondent was divorced from her third husband in 1996 and LW, now eight years old, is subject to a supervision order to live with her maternal grandmother. LW has done so since the 24 March 1998. That arose in this way. The third husband was a sex offender and there was a supervision requirement that LW had no contact with him. The first respondent allowed this to be breached. After the divorce, supervised access was allowed. Subsequently a safeguarder recommended that access cease because it did not serve any useful purpose for LW and that LW live with her maternal grandmother as LW did not want to live at home.

[4] The first respondent formed a relationship with the second respondent, F. He moved into the first respondent's home in May 1997. They are not married. They have two children: M, a daughter who was born on 13 January 1998, and B, a son who was born on 8 July 1999. The second respondent, eldest of five children, is about 25 years old. The second respondent entered into a parental responsibility agreement on 23 March 1999 with respect to M and on 11 November 1999 with respect to B: see the parental rights and responsibilities agreements in no. 33 of process. Both children have their father's name.

Circumstances bringing M into care

[5] There are three matters which concerned the social work department about M after her birth. One was about M's weight, another was violence in the home and there was a question of lack of co-operation of the respondents.

[6] When M was born she weighed 5 lb 131/2 oz. To begin with, for about six weeks, she was breast-fed by her mother and M gained weight. When the first respondent changed to bottle feeding, M's weight became a concern to the health visitor, Christina Mountain, and to the social work department. In a report for the children's hearing of 23 April 1998 (see no. 29/1 of process at p. 107 et seq), the social worker, Rita Grant, referred to M's poor weight gain during March 1998 and a loss of six ounces since 27 March 1998. It was noted that, on 23 March, M had gained only three to four ounces in a month. The health visitor's report for the reporter of 31 March 1998 (p. 115 of no. 29/1 of process) referred to variable weight gain and several occasions of weight loss. She said the first respondent had told her she was giving two bottle feeds a day. The health visitor thought it should be five or six bottles. In examination-in-chief the health visitor said her concern was the variable gain which was apparent instead of a steady gain, as a bottle-fed baby has a more steady weight gain then a breast-fed baby. She said in cross-examination that M was not presenting as failing to thrive.

[7] The move from breast to bottle feeding appeared to be because the second respondent wanted to take M out. It also appears that D was having some difficulty expressing milk in February. M did not accept a bottle to begin with.

[8] M was put in hospital on the 31 March 1998 to see if there was a medical cause for the weight problem. There was no medical organic reason for any weight problems. In hospital, between 31 March and 2 April, M gained 11 oz, having been 8 lb 12 oz on 31 March and 9 lb 7 oz on the 2 April. M was returned home.

[9] M was weighed at the health centre on 14 April 1998, but had not gained any more weight since leaving hospital. Within two weeks of being placed with foster carers on 24 April, M gained one pound in weight and grew three centimetres. Dr Ruth Little, the first respondent's general medical practitioner at the time, with respect to M's weight, referred to M as "failing to thrive" in her mother's care.

[10] Much was made by counsel for the first respondent that, between 2 March 1998 and 27 March, M had put on 22 oz and that there were in fact only two periods of weight loss between birth and admission to hospital: the record of M's weight on various dates appear on p. 105 of no. 29/1 of process. There were, between 24 February and 2 March and between 27 March and 31 March, two occasions when M lost 12 oz and 6 oz respectively. It was suggested that the true picture about M's weight was not as was thought to be painted by the social work department.

[11] Two points are overlooked in this approach. The two periods of weight loss and the period of static weight after the stay in hospital, constitute, as Dr Little stated in evidence, a "failure to thrive". That phrase meant any weight loss or failure to gain weight; it meant not putting on weight appropriately. The health visitor, when asked about this, said she was not medically qualified but would not use the phrase. I do not think, because the health visitor would not have used that phrase, that that detracts from its use by Dr Little. Secondly this approach overlooks the fact that M should have been gaining more weight than she was doing in her mother's care. Dr Little said that a baby under three months rarely loses weight and should be putting on six ounces a week.

[12] There is no doubt that M was not putting on weight appropriately in the respondents' care and that there was a legitimate concern about it. Weight can be made up later, according to Dr Little; but, if not, lack of weight gain can lead to brain damage. In the short term nutrition is needed to grow and for the brain to grow. In the long term weight gain means healthy growth. Bottle feeding is a more reliably way of gaining weight than breast feeding, although the transfer from breast to bottle can be a problem. The transfer of M from breast to bottle feeding after about six weeks would coincide with the loss of weight recorded on 2 March 1998, although the first respondent was breast feeding as well as bottle feeding during the transitional period. There did follow the period of gain of 22 oz during bottle feeding, but it was of concern that M's length remained static during that period. The period of good weight gain while in hospital and in foster care have to be contrasted with the intervening period of static weight while in the respondent's care.

[13] Although the second respondent said he was aware that M was not putting on weight, he did nothing about it because he thought the first respondent would do that.

[14] On 27 January 1998 the first respondent contacted Miss Grant to say that the second respondent had assaulted her. She said she had been hit on the head with a pine towel rail. The second respondent admitted it, pled guilty to assault and was fined £100: see extract conviction in no. 15/4a of process. The health visitor saw the first respondent with bruising around her left eye on the 28 January. The health visitor noticed bruising around the left eye on 10 February. The first respondent claimed she had fallen over and denied that the second respondent was being violent towards her.

[15] Miss Grant and a senior social worker, Mr Woolrich, visited the respondents on 27 January 1998. The second respondent was belligerent and aggressive. On 5 February Miss Grant and Mr Woolrich discussed with the second respondent what to do to prevent further instances of violence. The second respondent indicated he would register with a general medical practitioner so that he could be referred to a psychiatrist. It was suggested he go to a domestic violence support group. By 11 February the second respondent had not registered with a doctor. In fact he did not see a psychiatrist until February 2000 at his lawyer's request. He claimed he had asked his GP in March 1999 to refer him to a psychiatrist but nothing was done.

[16] The first respondent was to have taken M to see the doctor at the health centre on 26 March 1998 but she did not go. Miss Grant went to pick them up the next day. Dr Little suggested that M be admitted to hospital to see if there was a medical cause for M's weight problems. The first respondent did not want to do this and insisted that M was thriving. When the loss of six ounces between 27 and 31 March 1998 was discovered, Miss Grant made an appointment for M to be seen by Dr Little and went to tell respondents. The first respondent reluctantly agreed to go. The second respondent was abusive and would not go. Eventually the first respondent agreed to M being admitted to hospital.

[17] Miss Grant obtained a place at a children's centre for M. This was to offer support and monitoring of M's development. The first respondent did not want it. The second respondent was angry and threatened Miss Grant on the phone. That day, 7 April 1998, M was not taken to the children's centre to be weighed as had been arranged. Another appointment was not kept. When M was weighed on 14 April she weighed the same as she had done on discharge from hospital.

[18] The social work department was faced with concerns about lack of or variable weight gain, a violent incident and the suspicion of another, and a lack of co-operation from the respondents to take up support and monitoring for M and to tackle any problems of domestic violence as agreed. The social work department felt it necessary to seek to go to a children's hearing with a recommendation for a home supervision requirement. The report by Miss Grant to this effect to the children's hearing is in no. 29/1 of process at page 107. The children's hearing on 23 April 1998 decided by a majority, however, to have M taken into care under a place of safety warrant. An appeal against the warrant by the first respondent was refused by the sheriff. The grounds of referral were later held established by the sheriff after evidence on 22 May 1998 (see no. 15/1 of process). It would appear, in the referral to the sheriff, that only M's personal hygiene and that whether the facts justified the statutory ground under section 52(2)(c) of the Children (Scotland) Act 1995, were in dispute.

[19] There was a challenge by the first respondent, to which I shall refer in detail later, to the effect that the decision of the children's hearing on 23 April 1998 was fundamentally flawed and that that flaw affected all that followed. Having regard to the fact that the respondents would not co-operate with respect to the support and monitoring of M's development and they were not co-operating with the social work department, I do not think the decision of the children's hearing can be criticised. It has to be noted that the grounds of referral, which included elements of lack of co-operation (see facts 10-12) were found established by the sheriff on 22 May. The only challenge by the respondents at the hearing was about M's personal hygiene and the conclusion that all the other facts indicated that M was likely to suffer unnecessarily or be impaired seriously in her health or development due to lack of parental care.

[20] In my opinion, by the time M was taken into care, M was not gaining weight appropriately and was failing to thrive in the respondents' care. The respondents were not co-operating with the social work department with regard to support for M, and nothing had been done by the second respondent to tackle the issue of violence.

[21] There was criticism by counsel for the first respondent that there had been no written risk assessment by the social work department. Professor Triseliotis, Emeritus Professor at the University of Edinburgh and an expert in child care, said there should be a risk assessment before a care plan was drawn up. The criticism may be justified, but it is and was clear what the problems were, all knew what they were and what was to be done. The absence of a written risk assessment was not critical.

Attempts at rehabilitation

[22] The social work department then embarked on a programme for rehabilitation of M with the respondents. The plan was for the respondents and M to meet at the children's centre. The intention was actively to encourage the relationship between parent and child and to teach parenting skills during supervised contact. The ultimate aim was to return M to her parents.

[23] A meeting was arranged on 24 April 1998 to discuss the plan. Contact was initially agreed for the first respondent twice a week and the first contact visit took place on 11 May 1998. In June 1998 four contact visits were agreed for the second respondent for one hour over two weeks. The second respondent attended one; there was no explanation for his non-appearance on the other occasions.

[24] Mrs Reilly, then Miss Gourley, was the unit manager of the children's centre. She recognised that a children's centre is an unreal environment for contact and that observation can make parents feel nervous. Professor Triseliotis confirmed this. There is no doubt that difficulties of bonding between parent and child have to be considered against the background that there are seeing each other for only a few hours a week and that somebody else is substantially filling the rôle of parent.

[25] It was noted that M did not feed well from her mother, a difficulty which was not resolved. M would take a bottle more readily from staff. M was unsettled when cared for by her mother. Mrs Reilly did not think that M was comfortable with her mother. She was not confident that the first respondent could handle contact without supervision. On a regular basis feeding and winding had to be supervised. M frequently had to be settled by staff. Mrs Shaw, one of the nursery officers, said M did not enjoy being handled by her mother. The first respondent needed a great deal of help in all aspects of M's care.

[26] The contact was not all negative. For example, on 29 May 1998 and 30 June 1998 it is noted in the children's centre contact notes for the first respondent (see pp. 4 and 9 of no. 16/1 of process) that the first respondent interacted well with M.

[27] The contact that the second respondent had on the 15 June 1998 appeared to go well (p. 8 of no. 16/1 of process) and his interaction was appropriate (see no. 30/1 of process). It is clear that when the second respondent did have contact with M, he acted appropriately and that contact was better between him and M than between the first respondent and M. Regrettably, the second respondent exercised contact only infrequently. His next contact was not until 10 November 1998.

[28] It was suggested that the emphasis on the negative aspects of contact overlooked the positive aspects. The social work department was criticised by counsel for the first respondent for producing a summary of contact visits that emphasised only the negative aspects: see p. 285 of no. 29/2 of process. This document appears to have been intended to support the application to the court for freeing for adoption which began in February 1999.

[29] This document is not a true reflection of the contact between the first respondent and M. For example, for the contact on 30 June 1998 the entry is "nothing of note". If one looks at the entry in the children's centre contact notes for the first respondent (pp. 9 and 10 of no. 16/1 of process), the record includes the fact that the first respondent "interacted well" and that it was "a good visit". It is inaccurate, if not disingenuous, to describe that episode of contact as not being of note. It is regrettable still to see that inaccurate recording, which does not reflect the true facts, has not been completely eradicated from social work practice.

[30] Nonetheless it is clear that M did not settle in her mother's care and that the first respondent always required supervision. The second respondent exercised contact only infrequently. That his contact was infrequent was entirely his own fault. He did not co-operate.

[31] An important aspect at this stage was co-operation from the respondents. While the first respondent appeared to be co-operative in relation to rehabilitation, the second respondent did not co-operate. He walked out of the meeting with social workers on 27 April 1998, leaving in anger. Another meeting was arranged for 29 April: the second respondent did not attend. On 30 April the first respondent went to the children's centre to discuss M's placement there; the second respondent did not attend. On 11 May, at a children's hearing, the second respondent was abusive. The social work department decided that contact for the second respondent would end and would not be re-arranged until the second respondent spoke to the social work department. In June, the second respondent attended a meeting and four contact visits with M were arranged. The second respondent attended only one of those. No explanation for non-attendance at the others was given. The second respondent was warned before the fourth contact that, if he did not attend, contact would be terminated. When he did not attend, contact was, indeed, terminated and the second respondent was advised to speak to Miss Grant in order to re-establish contact. The second respondent did not do so until October 1998. The second respondent was not co-operative.

[32] It was unfortunate, to say the least for M, that the second respondent, who was better at interacting with M then the first respondent, did not co-operate whereas the first respondent, who was co-operative, was not interacting well with M.

[33] It was suggested that the difficulties which the first respondent had interacting with M were due to her disability. There is the question of her falling over and the question of eye contact.

[34] There is no doubt that some of the first respondent's difficulties were associated with her disability and the problem with balance. There were occasions when the first respondent was unsteady on her feet. Mrs Shaw, one of the nursery officers, did not think that all of the first respondent's problems were due solely to her physical disability. She was able to manage LW when she was a baby with support in spite of the disability. Apparently though, the first respondent's mother had said that there had been a similar pattern of difficulty with LW. But, according to Dr Little, the first respondent had been a good mother to LW.

[35] The health visitor had noticed, before M was taken into care, that there was a problem of interaction between M and the first respondent. There was lack of eye contact and M was not looking around for her parents. The health visitor mentioned this problem of interaction in her report of 31 March 1998 (see p. 116 of no. 29/1 of process). She was aware of a lack of interaction 12 days after M was released from hospital on 4 April. This she understood could cause a lack of weight gain. M did interact with the health visitor. There was no medical assessment of a problem with eye contact. Dr Little thought that if, as was the case, M was interacting with others, there was no medical advantage in making such an assessment of interaction with the mother.

[36] On the fifteenth day of the case (and last intended day of evidence) counsel for the first respondent sought leave to lodge a medical report which would indicate that the first respondent had a problem with her eyes. Apparently, it was claimed by counsel, ataxia was often accompanied by a condition of the eyes. This came to light only as a result of the need, since the previous day of evidence on 16 March 2000, to seek medical advice as to the fitness of the first respondent to give evidence. Counsel for the first respondent did not seek to re-open the first respondent's case which had closed on 16 March. He invited me to allow the report to be lodged and for me to give such weight to it as I considered appropriate. After hearing all parties I did not allow the document to be lodged. I did not see how I could give any weight to it as it was not tested in evidence and could open up a whole chapter of evidence for re-consideration. There was no hint of the issue in the evidence to that date. Doubt could be cast upon it because there was no evidence of lack of interaction between the first respondent and LW.

[37] When the first respondent gave evidence she indicated that, when tired, she got a squint in her eyes. Professor Triseliotis said that not too much emphasis should be placed on lack of eye contact. In his opinion babies looked about indiscriminately.

[38] It seems to me that lack of eye contact, for whatever reason, was a symptom rather than a cause of the problem of interaction between mother and daughter. The real problem was lack of interaction.

[39] By the end of July 1998 the social work department was coming, or had come, to the view that rehabilitation was not working and that adoption would have to be considered.

[40] For the respondents' it was argued that the social work department had not given rehabilitation long enough to work. It was suggested that a period of about 14 weeks was too short. But rehabilitation does not have to be pursued until it does work, if it is not working and it is apparent that it is not going to work. By mid July 1998 there was no co-operation from the second respondent, he was offered four periods of contact and exercised one, rehabilitation was not going well and the first respondent had indicated, when eviction was imminent in July 1998, that she would choose her partner over rehabilitation with M. It was not until 12 August that it was indicated to the children's hearing that rehabilitation was not thought to be working. I think that the social work department was justified in seeking appointment of a safeguarder by the children's hearing on that date (see no 15/2 of process). Unusually, in this case contact was not brought to an end. The first respondent continued to have contact with M; and the second respondent took up contact in November 1998. So far as the social work department was concerned, the nature and purpose of contact had changed. It was no longer for the purpose of rehabilitation.

[41] The question was also raised about residential rehabilitation which the social work department had not attempted. It was not suggested that there was a residential rehabilitation facility available in the area. Professor Triseliotis was aware that in Northern Ireland much weight was attached to residential rehabilitation. I do not think the social work department can be criticised for not using a facility that it did not have.

[42] The second respondent's lack of co-operation did not assist the first respondent. But the first respondent was not helping herself. In July 1998 there was a possibility of the respondents being evicted from their home. The first respondent said she would become homeless first before giving up the second respondent. There was some evidence and some suspicion of violence in the home. I will return to this topic later. The social workers had seen at first hand the second respondent's volatile and aggressive manner. It seems to me that, in view of the second respondent's lack of co-operation in relation to contact, concerns about the volatile home environment and the first respondent's indication that she was going to stay with the second respondent and that he came first, it was inevitable that the social work department would return to a children's hearing to seek the appointment of a safeguarder to consider what was in M's best interests.

[43] It was in July and August 1998 that the first respondent's interaction with M improved although still requiring assistance from the care assistants in the children's centre.

[44] The safeguarder reported to the children's hearing in October 1998. She came to the conclusion that M should be freed for adoption. The children's centre staff, Mrs Reilly and Miss Shaw, apparently confirmed to her a difficult relationship between the first respondent and M in which M appeared to "tolerate" her mother rather than anything else.

[45] As the weeks stretched into months, M formed a closer bond with her foster parents and the first respondent became less important to her. The second respondent did not feature in M's life at all.

[46] I think that, in spite of the first respondent's disability, she was not forming a relationship with M, was not interacting with M and required continual supervision. Putting together the first respondent's difficulties and the second respondent's lack of co-operation and lack of involvement, at his own instance, in contact and rehabilitation, I think that rehabilitation was not successful.

Violence

[47] For the second respondent it was claimed that the social work department could point only to one, or two, isolated incidents, from which it could not be concluded that there was a pattern of violence in the home. These incidents did not constitute a violent environment for M to be returned to.

[48] There was one incident on 27 January 1998 to which the second respondent pled guilty. I referred to this in paragraph [14]. The health visitor saw recent bruising around the first respondent's left eye on a visit to the home on 10 February 1998. In October 1998 the second respondent was fined £650 for two breaches of the peace following an altercation with his mother. Miss Shaw had seen the first respondent with cuts on her face on occasions. On one occasion, on 18 May 1999 (see p. 58 of no. 16/1 of process), the first respondent arrived at the children's centre without her glasses saying that they were broken. Mrs Shaw recorded that the first respondent had red marks on her neck and marks on her cheek, mouth and hand. She thought that bruising had become more frequent recently, that is March 2000, with the first respondent having black eyes, cuts and facial bruising.

[49] In December 1998, when six months pregnant with B, the first respondent had two black eyes and bruising to her face. Rita Grant, who did not see the injuries, said it was reported to her by the doctors at the hospital that the injuries were consistent with assault.

[50] On 16 December 1999 the first respondent was admitted to hospital. Dr Cook, who was in the accident and emergency department that day, gave evidence and spoke to her notes in the hospital records (no. 32/1 of process). The first respondent had said to her that she been assaulted by the second respondent. The first respondent had gross swelling around both eyes, bruising to the left cheek, lacerations to the cheek and nose, bruising to the face, arms and hands, grip marks on her forearms, bruising between the knees and thighs and lower legs, and she appeared to have a fractured nose. Dr Cook considered that the injuries were consistent with being punched and kicked more than once. Constable Ramsay had gone with the first respondent's brother-in-law to her flat on 15 December and found her in a distressed state. He thought she had been assaulted. He confirmed that although, after some time, she was persuaded to go to the police station, she refused all help, refused to go to the hospital and claimed she had fallen. Although she went to the hospital on 16 December, she did not want the police involved and was adamant she was going to return home.

[51] On 29 February 2000 Mrs Shaw saw the first respondent with a very sore right ear and a cut to the left side of her forehead. This may have been the same evidence the health visitor saw when she described the first respondent as having a cauliflower ear in February 2000. The health visitor described an occasion at the doctor's surgery in about February 2000 when the first respondent arrived at the surgery with bruising to her eyes, nose and right ear.

[52] The safeguarder thought, when she met the first respondent and the second respondent was present, that the first respondent appeared to be intimated by the second respondent. Professor Triseliotis, who did not meet the second respondent, thought that the first respondent was under the second respondent's influence and depended on him.

[53] The second respondent admitted in evidence that, during the course of the proof, he had threatened the first respondent's brother-in-law with violence when he spoke to the wife of his brother-in-law on the telephone.

[54] Aggression towards Mr Woolrich and Miss Grant was witnessed by Mrs Reilly on three occasions. Although the second respondent had not been aggressive to the children's centre staff and had not been angry with M, Mrs Reilly said he had difficulty controlling his temper. The first respondent agreed that the second respondent lost his temper with social workers. He did not like them. The second respondent admitted in evidence that he was aggressive and abusive to social workers.

[55] The second respondent, who gave evidence before the first respondent, admitted punching her and hitting her with a towel rail on the 27 January 1998. He denied hitting her in December 1999 and did not know how she was injured in December 1998. He said he slapped her once in February 2000 because she had stolen things from her brother-in-law and had taken tablets. He thought that slapping her "would have taken her out of how she was". He accepted that LW did not want to live in the house because of his violence: as he put it, "because I've got a problem". He was too lazy to get help about violence, it was "a lot of hassle". He said his violence was one of the main reasons M was taken away, and yet he was not willing to get help about violence at the time. He did not know whether he was "coming or going" and did not want to get help at that time. He did not think he had a problem. He did not go to see a psychiatrist until February 2000, far too late in the day. When asked if he knew what he was doing or could not help it, he replied " I know what I am doing". His behaviour was affected, he claimed, because he found the risk of losing his children, M and B, hard to bear. But his violent disposition, of course, exhibited itself before M was taken into care.

[56] apart from the first incident on 27 January 1998, the first respondent's explanation has always been that she has fallen. She falls a great deal because of the ataxia. But Dr Little had recorded only one occasion, in 1995, when the first respondent had attended the surgery for a fall. She had not attended for other injuries. When the first respondent gave evidence she said that the injuries she sustained in December 1998 and 1999 were done to her by the second respondent. She said that LW had seen quite a bit of violence. The first respondent explained that she had said a few things to anger the second respondent. She would have liked the second respondent to get help for violence but he did not think there was a problem. She said that when the health visitor saw her injuries at the health centre in February 2000 those injuries could have been caused by the second respondent. In a telling exchange in evidence, the first respondent said "I know I bang myself a lot. It's not always Colin...I'm not saying a lot of it isn't Colin". She claimed that she and the second respondent talk things through nowadays: "It's getting better. He's not hitting me. We're talking more". I think in these remarks the first respondent came closest to stating that the second respondent was regularly violent.

[57] The evidence did not, however, suggest that the violence was getting less. Some explanation for it came from the first respondent when she said that she thought the main reason was that the second respondent blamed her for a lot of what had happened. By this she meant M being taken into care and its consequences. If that was the reason for the violence it would not bode well for the future.

[58] In my opinion, the evidence is clear that the second respondent was and is violent towards the first respondent. There was a suggestion by Mr Halley for the first respondent that the petitioner had failed in its duty under section 12A of the Social Work (Scotland) Act 1968 to provide her with assistance because of domestic violence. It has to be pointed out, however, that the first respondent consistently denied that there was violence and claimed she just fell over a lot.

[59] Professor Triseliotis was clear that violence had to be addressed and that no child should be returned home when domestic violence was still prevalent. If not addressed it would continue. In his opinion, which I accept, a child can be badly affected by violence even if not a victim of it.

Assessment of the current position

[60] Even after the view was taken that freeing for adoption was the appropriate course to follow, the first respondent continued to have contact with M. When the second respondent agreed to co-operate with the social work department, contact was arranged twice a week from 10 November 1998. It would appear that the second respondent had contact with M on about twelve occasions between 10 November 1998 and 26 January 1999 and then roughly on twenty-five occasions between 2 March and 30 November 1999. The second respondent's interaction was always appropriate. M was comfortable in his company.

[61] In December 1999 contact was suspended for both the respondents after they had missed three visits in a row without explanation. When contacted they said they had flu. In January 2000 contact began again for the first respondent. The second respondent saw M once in February 2000.

[62] The first respondent's recent contact with M, according to Mrs Reilly, indicates that M is not comfortable with the first respondent. M almost always refuses to give the first respondent a kiss or a cuddle whereas she is affectionate to the foster mother. As M spends her life with her foster parents it is inevitable that a bond is formed with them. The first respondent is simply someone she sees regularly. M gets distressed when the first respondent insists that she is M's mother.

[63] Contact was arranged for Professor Triseliotis to observe. He observed the first respondent with M on two occasions in January 2000. The observation of contact by the second respondent never took place. Professor Triseliotis noticed that M would not accept kisses and cuddles easily from her mother. M was comfortable with her foster parent and less comfortable with her mother.

[64] Professor Triseliotis based his views on his observations and reading of the contact notes about contact at the children's centre between May 1998 and the end of 1999. He considered there was a weak relationship between the first respondent and M. In the twelve months up to November 1999 the second respondent had a good relationship with M, stronger than that which the first respondent had. It is interesting to note that Professor Triseliotis' observations coincide with the picture painted of the different relationship between the first respondent and M that was noticed from the outset.

[65] There is then a weak relationship between the first respondent and M that has not improved over time. It is a pity that the second respondent, who had a good relationship with M when he saw her, has not maintained that contact. He has been prepared to sacrifice M's interests for his own personal interests or his dislike of the social workers. The relationship between M and her natural parents has thus deteriorated.

[66] The first respondent has co-operated about contact; the second respondent less so. Initially he was not allowed contact with M because he would not co-operate. Both lost contact at the end of 1999 following their failure to exercise contact without explanation. The second respondent, when he gave evidence, blamed pressure, stress and not feeling himself. The first respondent was not assisting herself by denying violence in the home. The first respondent said she does not like hospitals, the police or social workers. The second respondent said he did not like social workers. He admitted being aggressive and abusive to them. He had a problem with Miss Grant and Mr Woolrich. The respondents thought that things would be better if they had different social workers.

[67] I think it is unlikely that things would improve. The second respondent admitted losing his temper at a children's hearing this year. He could not be bothered to seek help for his admitted violence. It seems that he did nothing until his lawyer asked him to see a psychiatrist in February of this year. We do not know what the psychiatrist had to say.

[68] There was some concern expressed by the children's centre staff and the health visitor as to the first respondent's current mental state. The second respondent even expressed concern in his evidence. It was agreed (see minute of agreement no. 38 of process, paras. 6-9) that the first respondent had sought help from her doctor on 29 June 2000, complaining of a history of ongoing depression. She sought help again on 6 and 24 July. Her doctor concluded that she suffered from low moods in response to her condition but did not appear to have a major depressive illness. She had limited coping mechanisms when stressed and was of low intelligence.

[69] On the evidence of the past it is difficult to believe that co-operation would improve were M not freed for adoption and was returned home.

Applicability of the Human Rights Convention to withholding consent

[70] It was argued for the first respondent that the European Convention on Human Rights was applicable. At first counsel for the first respondent appeared to argue, under reference to T, Petitioner, 1997 SLT 724, that the convention applied because of an ambiguity in the Children (Scotland) Act 1995. There was none referred to. It became clear that the argument ultimately was that a reasonable parent would take the convention into account in considering whether to consent having regard to the right to respect for family life enshrined in article 8(1) of the convention. I was referred to a number of cases where the Court of Session had entertained an argument about the applicability of the Human Rights Convention to the question of reasonableness. These were Abdadou -v- Secretary of State for the Home Department, 1998 SC 504; LJ -v- Aberdeen City Council, 11 February 1999; MP -v- CP, 29 February 2000; and Ahmed -v- Secretary of State for the Home Department, 28 March 2000. It is to be noted that all these cases were decided without it being necessary to decide on the convention argument. I do not doubt that, as we approach 2 October 2000, the date on which parts of the Human Rights Convention become directly enforceable in this country, a parent may well have the convention in mind. What counsel for the first respondent then did was to examine each stage of the process, from M being taken into care to the point of the application for freeing, analysing the respects in which article 8(1) was allegedly breached in relation to the first respondent's rights. There was no regard to the first respondent's obligations or the best interests of M.

[71] Paraphrasing what Lord Eassie said in the case of Abdadou at page 518G, I would say that, while the fact that any decision taken by the social work department with respect to a child is in breach of the convention may assist in a contention that the natural parent has not acted unreasonably in withholding consent, the ultimate test is whether a reasonable parent would or would not withhold agreement. It does not follow, therefore, that because a particular decision in the process may be criticised as in breach of the convention, that all that follows that decision is invalidated. An initial decision to take a child into care may, or may not, affect subsequent events. The court must consider what a reasonable parent would conclude on the basis of all the evidence before it. That is the decision I have to make. I did not conclude that any decision taken was in breach of the convention in this case. Out of respect for the time spent on the submissions considering the convention aspect (one out of three days of submissions), and for the impending direct application of the convention, I shall deal with the points raised.

[72] I was referred to two cases in the European Court of Human Rights. The first was Johansen -v- Norway (1996) 23 EHRR 33. That was a case in which it was held that the natural parent's rights under article 8(1) were violated in so far as she was deprived of access to her daughter who had been taken into care. The child was placed with foster parents with a view to adoption. The court held - at paragraph 78:-

"that the taking of a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child".

I think our current law and policies with respect to taking children into care are in accord with that principle. The court went on to say:-

"In this regard, a fair balance has to be struck between the interests of the child remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents."

The court did not adopt the test for which the government of Norway argued, namely, that of attaching paramount importance to the best interests of the child. It is not clear, therefore, that the test of "paramount consideration" in section 6(1) of the Adoption (Scotland) Act 1978 would meet the test expostulated by the European Court in the case of Johansen and confirmed by that court in K & T -v- Finland, 27 April 2000, unreported. The court in Johansen said that the measures taken to place the applicant's child with foster parents with a view to adoption deprived the applicant of family life with the child and were inconsistent with the aim of reuniting them. Any measures taken must be justified on the ground of "necessity in a democratic society":-

"Such measures should only be applied in exceptional circumstances and can only be justified if they were motivated by an overriding requirement pertaining to the child's best interests."

Rather more emphasis appears to be placed in the European Human Rights Convention on the rights of the parent than are the rights of the child under the UN Convention on the Rights of the Child.

[73] The court in Johansen went on to say that whether deprivation of rights was justified must be assessed in light of the circumstances at the time the decisions were made (paragraph 79 of the judgment). In the case of K & T it was said, at paragraph 144 of the judgment, that a fact after the event cannot be used to justify a decision already made.

[74] With these thought in mind counsel for the first respondent criticised decisions taken with respect to the respondents and M. Firstly, the decision of the children's hearing on 23 April 1998 to take M into care was fatally flawed because there was no necessity for it. The only basis for it could have been M's lack of development. The basis for that was the alleged failure to thrive through lack of weight gain. Counsel purported to demonstrate that this allegation was erroneous, a proposition which I have rejected. The importance of this point was that it was argued that a reasonable parent would withhold agreement when this initial decision created or started the alienation of the parent from the child by a decision to take the child into care which was not justified. I have already concluded that the decision was justified. Even if it were not, that would not necessarily mean that all that followed would be invalid. One would, of course, have to bear in mind, when considering what followed, the effect the original decision might have.

[75] Counsel for the first respondent then examined a number of decisions taken by the children's hearing and the social work department in order to ascertain whether the first respondent's rights were considered and a "fair balance" exercise carried out. The court was to look at each decision but not with the benefit of hindsight. I think, with the respect, that this approach is not the correct one. It is not the task of this court to examine each decision taken in relation to M and decide if it was reasonable or achieved a fair balance. The court is not reviewing those decisions. My function is to decide whether, on the evidence as at the date of the proof, a reasonable parent would withhold consent to the making of an adoption order. I must consider all the evidence, as would the reasonable parent, in light of the principles or tests to be applied. That decision is not made with the benefit of hindsight. Naturally, the court, as would a reasonable parent, will be awake to the possibility, for example, that if contact were denied without justification that would be a denial of rights which could make withholding consent reasonable. Similarly, if rehabilitation of parent and child were never seriously attempted, that could explain the absence of the relationship between parent and child and could make withholding consent reasonable. Because violence, for example, was not a factor in making a particular decision does not mean it cannot be considered as a factor in determining the question of unreasonably withholding consent at the time that that decision has to be made.

Independence of the adoption panel

[76] There is one other aspect of the progress towards consideration of adoption by the social work department that I should mention specifically. Counsel for the first respondents submitted that the approval and matching panel, commonly called the adoption panel, which considered M's case on 23 November 1998 (see pp. 369 and 370 in no. 29/2 of process) and on 21 September 1999 (no. 32/3 of process), was not independent. The first of these panels recommended the freeing of M for adoption as a course of action. The second recommended the matching of M with her current foster parents for adoption. Accordingly, it was argued, a reasonable parent would conclude that its decisions were not made by an independent body and not made in accordance with the law. This was a reference to article 6(1) of the Human Rights Convention. The panel was criticised for not producing the reports required of it and for not having certain religious and cultural information before it. The social work department was criticised for not obtaining that and other information for the panel.

[77] While there is some merit in these criticisms I do not consider them to be of significance in this case. I do not think that a reasonable parent would regard them as justifying withholding consent. For instance, that the first respondent was Roman Catholic and her mother Belgian was not discussed in relation to the religious and cultural background for M. At no time, however, has the first respondent given any indication that religious or cultural background was of any significance to her or for M. It is not enough for counsel for the first respondent simply to say that there is no onus on her to mention it.

[78] The question of the independence of the adoption panel does require further comment. Witnesses accepted that the panel should be independent of those directly involved in making decisions about adoption. The panel is there to make recommendations to the adoption agency. Counsel for the petitioner submitted that there was nothing in the legislation that required the adoption panel to be independent. But it seems to me that there is little point in the adoption agency referring questions about adoption to another body if that other body were not independent in some way. Regulation 7 of the Adoption Agencies (Scotland) Regulations 1996 does not require independence. The English Adoption Agencies Regulations 1983 do require three independent persons, of whom one is to be an adoptive parent, not being members or employees of the Adoption Agency (regulation 5(2)(d)), to be members of the panel of not more than ten persons. It would appear that the quorum of six on an English panel would necessitate at least one such wholly independent member being present at a panel meeting.

[79] In this case the panel on 23 November 1998 included Rita Grant's practice team manager, a woman who was subsequently a signatory of Rita Grant's report to the court in support of the freeing application for M. Another member of the panel, on 23 November 1998 and 21 September 1999, was a member of the Resource Social Work Team that worked in the same building as Rita Grant. One member chaired the social work department case conference on 17 February 1998 about LW.

[80] I do not consider that the adoption panel must be independent from the adoption agency in the sense that no member of the agency should be a member of it. Indeed the regulations require two members to be members of the adoption agency, namely, the medical officer and legal adviser. It is not satisfactory, however, that a member of the same team as the social worker involved in the case should be one of those on the panel. It is not satisfactory if it appears that the same people are on both bodies but simply swap rôles depending on whose case it is. It seems to me that the adoption panel should not include members of the same team as those seeking its advice. I note that there is nothing in the Scottish regulations to exclude wholly independent members. It seems to me that such persons should be included. This is a matter that might be looked at by the Executive or Parliament.

[81] Although it was unsatisfactory that the adoption panels had members on it related to the case, the decisions reached by the panels to recommend adoption and to match M with her current foster parents for adoption are decisions which I also have reached. Furthermore, the fact that the panel did not produce a written report as required by regulation 11(2)(a) of the 1996 Regulations may be criticised. But its absence is not fatal in this case.

Contact in open adoptions

[82] An important issue in this case was the question of contact after freeing for adoption and adoption. The original position of the social work department had been that parental contact was not part of the plan for adoption. This is the standard position taken by adoption agencies. In this case, however, the petitioner, unusually, had not taken the step of prohibiting contact in anticipation of adoption once the decision had been taken to pursue that course. By the time of the proof the petitioner had had the benefit of seeing two reports by Professor Triseliotis, an expert in this field. He recommended, in August 1999, that direct supervised contact between M and her natural parents about twice a year should, if possible, take place after freeing and adoption. This was because, with the contact that had taken place, a link had been developed between the respondents and M. The petitioner then offered contact on that basis to the respondents on M being freed for adoption.

[83] At the start of the proof it was argued for the respondents that if the petitioner were offering contact it could be only be on the hypothesis that it was beneficial to M. That being so, following comments I made in City of Edinburgh Council -v- S, 16 August 1999, unreported, the petition should simply be refused without the need to hear any evidence. I did not consider that I could refuse to allow the petitioner the opportunity to lead evidence in order to persuade me to take a different course. The circumstances of this case were unusually different from those in the case of S. In this case the foster parents are the approved perspective adopters who are waiting to present their petition to adopt M and who are willing to agree to contact on the basis of Professor Triseliotis' recommendation. I did wonder why it was, if the foster parents wished to adopt M and were approved in March 1999, that the petitioner was pursuing a freeing order begun in February 1999. That seemed to me to be an unnecessary step. The response appeared to be that so much expense had been incurred in pursuing the application to this point. It was not clear to me that it had had to be pursued to this point.

[84] It is apparent that freeing for adoption applications are being made now in circumstances for which they were never intended when proposed by the Houghton Committee in 1972. I alluded to this in the case of S. As Professor Triseliotis explained in this case, the concept of the freeing application was introduced to enable mothers giving up their babies to make a once and for all decision to give them up for adoption at an early stage rather than to be faced with having to make a second decision at the point of adoption which created difficulties for that process. It was not envisaged that perspective adopters would be identified at the early stage. In those days it was still common practice to separate a child from the natural mother at birth with a view to adoption. A bond was never formed between mother and child. Policy has changed since then. Nowadays it is sought to ensure that parents bring up their own children. Only if this does not succeed are children put up for adoption. Of course by that time some sort of bond, relationship or link has been formed between parent and child. Inevitably, when the freeing for adoption application is made, it is opposed on the basis that a relationship has been formed. Invariably, freeing for adoption applications in this court are fought, at length, on the issue of contact. This issue is contested at a stage when, in the current state of our law, the court usually is least able to deal with it because it is an issue that can properly be considered only when the prospective adopters are identified. Contact must usually be matter for agreement between adopter and parent. But once a child has been freed for adoption, the natural parent has no rights to assert or rely on.

[85] It was at first argued by counsel for the petitioners that the adoption agency was a obliged by law to seek a freeing for adoption order where there were no prospective adopters. This was not, I think, insisted in when it became clear that the legislation places no such obligation on adoption agencies. There are circumstances where a local authority, having taken a decision to propose a child for adoption, may become impelled along that route. It would be unfortunate were a local authority obliged to take this course, having regard to the possible consequences for contact between natural parent and child.

[86] I appreciate that lengthy proofs and arguments about contact at the stage of adoption increase the anxiety of prospective adopters and that adopters could be faced with a substantial financial burden currently born by the adoption agency at the freeing stage.

[87] It seems to me that the difficulties created by freeing for adoption applications, because of the current thinking about families and contact after adoption, could be ameliorated by a change in the law. If the court had power, as in England, to consider and regulate contact at or after freeing for adoption this might be so. This is a matter that Parliament should consider. There was a suggestion in this case that, following, for example, the case of Johansen, the current state of our law might not survive a challenge under the Human Rights Convention. I say no more about that.

[88] This case is distinguishable from the case of S because there are perspective adopters. They have given evidence and have expressed willingness to agree to contact, although not the sort of contact the respondents would wish. I recognise, however, that once the freeing order is granted there is nothing that the court or the natural parents can do about contact as a matter of law.

[89] It is important to appreciate that contact on adoption is not the same contact as arises on the break up of a family. It is not contact for the purpose of developing a relationship or shared parenting. It is contact to preserve a link that has been formed for the benefit of the child in order to boost the child's self-image and identity. To cut a child off from an emotional link may affect the stability of the placement and the child's psychological well-being. I explained at some length in the case of S the current thinking on contact and Professor Triseliotis' opinions about it. I do not repeat his evidence in this case on the theory and research in this area because the principle of contact after adoption was accepted by the parties in this case. The question in this case was, assuming freeing for adoption was appropriate, the amount of that contact.

Contact after freeing in this case

[90] The petitioner had "offered" the respondents supervised contact twice a year. This was on the basis of the reports by Professor Triseliotis. Having read various documents in the case including the contact records and observed contact between M and the first respondent, Professor Triseliotis considered there was a weak relationship between M and her mother. It was weak because there were still occasions when M was not spontaneous in her relationship with her mother. It was worth preserving for M's benefit. He recommended supervised contact twice a year. Based on the contact between the second respondent and M in 1998 to 1999 the link was perhaps stronger between the second respondent and M. But a gap between November 1999 and February 2000 was not good. With a child of M's age, if there is no continuous contact the memory and image of the adult disappears; although if re-established, the memory will come back. On the evidence of the 1998 to 1999 contact, Professor Triseliotis would have considered that the second respondent should have supervised contact twice a year. But if contact were not re-established he thought that the second respondent should have only indirect contact.

[91] Natural parents have to accept the finality of adoption. Contact is to satisfy the child's needs in relation to the genealogical continuity, who he or she is, roots and origins and, more importantly, emotional continuity. Most arrangements and the best arrangements are based on agreement. In this case the foster parents have indicated they would agree to supervised contact twice a year for the respondents with M. Professor Triseliotis said existing contact had to be reduced gradually to that level.

[92] The difficulty about contact is that the respondents, if there were to be adoption, want more contact. I think this is because they want to further the relationship between them and M. This is not the purpose of contact in adoptions. There is no evidence that the second respondent has tried to undermine the relationship between M and the foster parents. The first respondent did not cause problems to the foster parents when contact was exercised in the foster parent's home. There is some evidence that the first respondent insists on telling M that she is her mother and talks about M coming home. This could undermine the relationship between M and her adopters. If there were social work involvement, the resentment of the respondents to the social workers could be a problem. Having regard to the foster parents willingness, direct contact in the adoption of M could be successful. The real test will come with respect to the respondents' commitment to it.

[93] It seems to me that contact should be as recommended by Professor Triseliotis if M is freed for adoption. That is, supervised contact for the respondents with M twice a year. If the second respondent does not re-establish contact with M, then contact for him should be only indirect or letterbox contact..

[94] I do not consider that the respondents could be said to be withholding consent reasonably because they would not be allowed the contact to M they seek. I think that, in the circumstances of this case, a reasonable parent would not withhold consent on the issue of contact.

Sibling contact

[95] The foster parents are agreeable to contact between M and her full-blood brother, B, and her half-sister LW. Unfortunately, at the moment, LW does not want contact with M. She says she cannot handle it just now. LW does not see B. M sees B on Tuesdays at the children's centre. Were B to be adopted by other adopters, steps would have to be taken to ensure that M and B continued to see each other. M knows that B is her brother. M's prospective adopters are willing to allow contact between M and B. There does not appear to me to be a problem about sibling contact.

[96] It was suggested that there might be a problem for M if she did not have contact with her parents but had contact with LW or B who did see the first respondent. It was suggested that M, who has less than a 10 per cent chance of developing ataxia, would feel she was being treated differently from B if she did not have contact with the respondents but B, for whom it is too early to say whether he will have ataxia, may require contact with the respondents because of it. But, of course, the respondents are being offered twice yearly contact for M's benefit. If they do not want to exercise it because they want more, which is not in M's interests, that is a problem that the respondents have created.

Adoption of B

[97] It was suggested that, since B could not be with M, it would be inappropriate for M to be freed for adoption by her foster parents and B, if he were to be adopted, to be adopted by others. A reasonable parent would not, therefore, consent to M's adoption. Normally siblings should be kept together.

[98] M's foster parents are not able to adopt B. They have three children, two boys aged 17 and 14 respectively and a daughter aged 12. The boys share one bedroom, the daughter has another which she currently shares with another foster child. M does and would sleep in the foster parents' bedroom. It is not clear that adoption of B was fully discussed by the social work department with M's foster parents. But they would never have agreed to adopt B, and the social work department would have known that, because they had no room.

[99] There was criticism that M and B had not been accommodated together from the outset and that the children were faced with being separately adopted. B was taken into care at birth in August 1998. The petitioner intends to pursue adoption for B. It is not clear when the decision was taken to place B for adoption. He is not with prospective adopters at present. There is a reference to it in the adoption panel minute of 21 September 1999 (see no. 32/3 of process). M was placed with her current foster parents in May 1998 and the petitioner had reached the view in August 1998 that she should be considered for adoption. M's foster parents indicated their desire to adopt M in November 1998. Professor Triseliotis did not think that M should be moved from her current foster parents and prospective adopters.

[100] I am sure that the social work department would have been criticised if it had been seen to have acted, before B's birth or after and before giving rehabilitation of B a chance, to place M with foster parents who could have taken B. I do not think the social work department has acted deliberately to keep M and B apart. Indeed there is contact between M and B. Professor Triseliotis said that adoption of M and B together is not the only way of keeping siblings in touch. Regular contact is an obvious means of maintaining the link between M and B.

[101] M was two weeks with her first foster parents before being moved to her current foster parents with whom she has been since 15 May 1998.

[102] I do not think that a reasonable parent would refuse to consent on the ground that M and B will not be adopted by the same family or should be. The link between M and B can be maintained by contact.

The foster parents

[103] The foster parents are a couple who have been married for 15 years. Mrs N is aged 38 and Mr N is aged 55 years of age. Mr N has been married before and has four children by that marriage, aged 32, 31, 29 and 27 respectively. He maintains contact with those children but not regularly. They are fostering three children at present, as already noted. It is the first time they have had three foster children at one time. Both foster parents are healthy, though Mr N takes medication for his blood pressure. He is a retired prison officer (since 1994). He is involved in a youth club and runs a youth football team. He and his wife were approved for fostering in October 1994 and have fostered 30 children varying from birth to seven years' old. If they adopt M they will have to take a rest from foster caring.

[104] The foster parents were assessed in November 1998 as prospective adopters. They have expressed a wish to adopt M. They were first approved in March 1999 and finally approved by the adoption panel in December 1999 to adopt M.

[105] The foster parents were an impressive couple committed to children. I have no doubt that they do and would provide M with a loving home. The evidence is that M has a good relationship with her foster parents and has formed a bond with them.

Alternatives to adoption

[106] There are no realistic alternatives to adoption. I do not think that M can be returned home as the respondents wish. It is clear that there is an undercurrent of violence in the home which has not been tackled. M cannot be returned to that environment even if she is not a direct victim. The second respondent does not put M's interests above those of his antagonism to social workers, and his commitment to contact has not been maintained. The first respondent has indicated that she puts her relationship with the second respondent above that of her relationship with M. Rehabilitation did not work.

[107] Although it was suggested that other family members should have been approached, none has come forward to offer help. The first respondent's mother is in her 70's. She could not take a two year old child. The question had been discussed with her. The first respondent's two sisters were not approached directly; but apparently the first respondent's mother indicated that no other family member could take M on. Miss Grant was under the impression that the first respondent's brother-in-law did not wish to take M on because he did not have positive feelings about the second respondent. The second respondent's mother was considered but she had struggled with bringing up all her children on supervision orders, according to Miss Grant.

[108] The social work department was criticised for not approaching relatives, but it is clear that no-one has come forward from either side. The evidence before me does not indicate that there is a suitable family member able to take M into their care.

[109] Long term fostering, according to Professor Triseliotis is not appropriate. Most studies highlight the benefits of adoption over long-term fostering. Adoption provides continuity of care, certainty of the sense of belonging and its legality cannot be stopped. With long term fostering any of those involved can try to change the position. Apparently 60-70% of parents lose contact with their children in long-term fostering. A child of two had a very good chance of settling if adopted.

[110] I have no doubt that adoption would promote and secure M's welfare throughout her life.

[111] A reasonable parent would have regard to the fact that there is no alternative to adoption in this case.

 

Circumstances arising after the proof

[112] I alluded to the fact, in paragraph [2], that it was indicated to the court at the end of June 2000, that the first respondent no longer wished to oppose the petition. But at the by order hearing on 3 August, her solicitor informed me that on 2 August the first respondent had changed her mind again and was now maintaining her opposition to the petition, even though she and the second respondent were permanently separated.

[113] At the hearing on 7 September 2000, when counsel for the respondents appeared, they informed me that they did not wish to lead evidence about the first respondent's changes of mind, the state of separation or the consequences, and were content to make submissions. If either of the respondents had wished to lead evidence, the petitioner wished to lead evidence on these matters and also on other events that had occurred during the summer. The latter was opposed by the respondents, and I was quite clear that the petitioner could not, in any event, be allowed to open up the proof again in that way. I was content to hear submissions from parties. Before I did, parties were able to agree certain facts which were embodied in a minute of agreement (no. 38 of process). These facts formed the basis of the submissions.

[114] The first respondent had signed agreements for the freeing of M and B on 17 June 2000. She then changed her mind again and maintained and was maintaining her opposition to the freeing of M. The second respondent has maintained his opposition to the petition throughout the proceedings.

[115] The first and second respondent separated in mid June 2000. The second respondent moved to his own local authority housing, to which he had obtained a tenancy in late July 2000. The first respondent retained and lives in her own home. The first and second respondents are reconciled to the extent that they are together at the first respondent's home for about half of each week.

[116] For the petitioner it was argued by Mr Ross, solicitor, that, though the court in this process cannot return M to her parents, the court could look at the fact of the partial together-ness of the respondents as a factor in considering the reasonableness of their withholding their consent. It was relevant in relation to whether any plans of the respondents for M were realistic. There must be a doubt, he said, as to whether the rehabilitation of the respondents was viable. It was not realistic that either respondent could look after M on his or her own. For the respondents it was accepted by Mr Halley and Mr Jack that the separation and the status of their relationship were relevant factors. Mr Halley accepted that the fact that the first respondent had changed her mind twice was relevant. It was argued, however, that the questions for me, about the withholding of consent and whether it should be dispensed with, were affected by more fundamental issues arising out of the taking into care of M in the first place, the failure to consider B's position and a sibling placement.

[117] I consider that the vacillation of the first respondent, the separation of the respondents and the hybrid status of their current relationship to be factors relevant to the issues I have to decide. I agree with counsel for the respondents that they are not conclusive factors.

[118] It is difficult to know whether the first respondent withdrew her opposition in June because she was depressed or whether she did so because she considered that it was the right thing to do. I think her depression must have had something to do with it. The fact, however, that the first respondent changed her mind twice, the separation of the respondents and the unusual nature of their current relationship do not inspire confidence in the case for the respondents that a reasonable parent in their position would be withholding consent reasonably.

[119] Even without taking account of the events that occurred since the proof I consider that the respondents were withholding their agreement unreasonably and that M should be freed for adoption. Nothing I heard of the facts or in the submissions by counsel for the respondents on 7 September caused me to consider reaching a different conclusion. Indeed, I consider, if anything, that the current circumstances confirm me in the conclusion I had reached. I do think that a reasonable parent would have regard to the fact, among others, that the relationship between the respondents is not a stable one and that they are in no position to offer M a secure and stable home. There is no basis for concluding that either of the respondents is capable of meeting M's needs.

Consent unreasonably withheld

[120] I considered the case in accordance with the well-known authorities. I followed the two-stage approach described by Lord President Hope in Lothian Regional Council -v- A 1992 SLT 858 at 862 D-H. I bore in mind the comments in AB and CB -v- X's Curator 1963 SC 124, 135, in A -v- B and C 1971 SC (HL) 129, 141 by Lord Reid and by Lord Hailsham, LC in In re W (an infant) [1971] AC 682 at 700 about the objective test in relation to the first stage to be considered.

[121] I think that the respondents have unreasonably withheld their agreement to freeing M for adoption. M cannot be returned home because of the violence, because rehabilitation has not worked, because the respondents have not and are unlikely to co-operate with the social work department and because contact has not worked satisfactorily. Furthermore, neither respondent is capable of meeting M's needs.

Dispensing with consent

[122] The second stage to consider is whether to exercise my discretion to dispense with the agreement of either of the respondents to the adoption of M. For the reasons I have given above, I consider that the agreement of both respondents should be dispensed with.

Note:

(City of Edinburgh Council -v- S now reported in 2000 SCLR 606)

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