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Aberdeen City Council v. DR [2003] ScotSC 23 (24 April 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B2/19/01

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		ABERDEEN CITY COUNCIL
		Petitioners
		against
		DR
		Respondent

Act: Miss Dowdalls, advocate, instructed by Aberdeen City Council

Alt: Mr Bell, advocate, instructed by George Mathers & Co, Aberdeen

Aberdeen: 24^th April 2003

The Sheriff Principal, having resumed consideration of the cause, amends the sheriff's findings in fact in his interlocutor dated 5^th July 2002 as follows:

In finding in fact 17 add at the end: "Between about January and May 2001 the respondent attended a drug rehabilitation programme in Holland. In June and July 2001 she returned to using heroin. She has been free from drugs since August or September 2001. She has stated that she has no intention of using drugs again. In about May 2001 she became pregnant. She was unwell during said pregnancy and was regularly admitted to hospital. Her pregnancy interfered with her ability to exercise contact".

Insert at the beginning of finding in fact 23: "Prior to presenting the present application the petitioners considered alternatives to adoption, including rehabilitation with the respondent, short-term care and long-term foster care. None of the alternatives was considered by the petitioners to be apt to meet the needs of the child".

In finding in fact 32 before "2001" insert "the first half of".

In finding in fact 38 add at the end: "She has the support of her family".

Add a new finding in fact 39 as follows: "39. The respondent wishes a rehabilitation of the child to her care. She does not wish to surrender her parental rights and responsibilities".

Add a new finding in fact 40 as follows: "40. In the event of the adoption of D by Mr and Mrs K, the child will continue to have contact with B, at least in the short term".

quoad ultra refuses the appeal and adheres to the interlocutor dated 5^th July 2002; finds no expenses due to or by either party in respect of the appeal.

Note

Introduction

In this case the petitioners (and respondents in the appeal) are Aberdeen City Council. They applied to the court to make an order declaring a child D free for adoption and to dispense with the agreement of the child's natural mother who was the respondent in the original application and is the appellant in the appeal. In this note I shall refer to her as DR and Aberdeen City Council as ACC. The grounds upon which the court was asked to dispense with the agreement of DR were those specified in section 16(2)(b) and (c)(ii) of the Adoption (Scotland) Act 1978 ("the 1978 Act"), namely that DR was withholding her agreement unreasonably and that she had persistently failed, without reasonable cause, to fulfil her parental responsibility in relation to D, while she was not living with her, to maintain personal relations and direct contact with D on a regular basis. Section 18(1) of the 1978 Act provides that where, on an application by an adoption agency which is a local authority, an authorised court is satisfied in the case of each parent or guardian of the child that ...... (b) his agreement to the making of an adoption order should be dispensed with on a ground specified in section 16(2), the court shall ...... make an order declaring the child free for adoption.

After a proof which extended over six days between 15^th and 24^th May 2002 the sheriff by interlocutor dated 5^th July 2002 dispensed with the agreement of DR on both these grounds and declared D free for adoption. Against this interlocutor DR has appealed. In short she maintains that the sheriff erred in finding that she was withholding her agreement unreasonably and in declaring D free for adoption. But the sheriff's finding that the ground specified in section 16(2)(c)(ii) of the 1978 Act had been established has not been challenged.

The sheriff's findings

The sheriff made a total of thirty eight findings in fact. In these, and in the remainder of his interlocutor and note, he referred to the various participants in this sad tale by their full names. Since proceedings of this kind are meant to be strictly confidential, I think, with respect, that he should have referred to them by their initials (or some other convenient abbreviation) only and, in setting out his findings in fact, this is what I have done (and I have also removed references to various addresses). These findings in fact were as follows:-

The petitioners are Aberdeen City Council, an adoption agency.

D (hereinafter referred to as "the child") was born at ...... on 24 December 1998. She resides at ......... Aberdeen.

Her mother is DR (hereinafter referred to as 'the respondent'), born 4 October 1981. She resides at ....... Aberdeen.

Parental responsibilities and rights in respect of the child are vested only in the respondent. The child's father's name does not appear on the child's birth certificate.

Prior to the child's birth, a pre-birth case conference was held by the petitioners' Social Work Department in respect of the child on 17 December 1998. The reason for the holding of that case conference was concern regarding the respondent's and her then boyfriend's vulnerability, immaturity, volatility and drug misuse and how that might impact on their ability to cope with caring for a young baby.

Following the child's birth, the respondent initially coped with looking after the child.

In January and February 1999 the respondent failed to care properly or adequately for the child. During that period the respondent was abusing controlled substances. During that period the respondent's behaviour, including her behaviour towards and in respect of the child was bizarre and unpredictable.

During that time the respondent's mother, due to work commitments, was unable to permanently look after the child.

On 12 February 1999 the Sheriff at Aberdeen granted a Child Protection Order in respect of the child. On that date the child was accommodated in foster care with Mr. and Mrs. K.

Since 12 February 1999 the child has resided with Mr. and Mrs. K at ....... Aberdeen. The child is happy and well cared for by Mr. and Mrs. K.

The child has formed an attachment to Mr. and Mrs. K. The child considers them to be her parents. She has also formed an attachment with other members of Mr. and Mrs. K's family.

The child has no sense of attachment to the respondent.

Throughout 1999 the respondent failed to regularly attend contact visits with the child arranged for her by the petitioners. In addition the respondent was unwilling or unable to accept support offered by the petitioners with a view to rehabilitating the child with her.

There was no justifiable reason for the respondent to fail to regularly attend contact visits with the child.

Throughout 1999 and 2000 the respondent led an irresponsible life. She abused and became addicted to controlled drugs, including heroin.

During 2000 the respondent failed to regularly attend contact visits with the child which the petitioners had made available for her. There was no justifiable reason for that failure.

In 2001 the respondent took steps to address her drug problem. She was still uncertain as to her future.

The respondent receives methadone, a prescription drug to wean persons off an addiction to heroin.

In April or May 2002 the respondent was placed on a drug treatment and testing order at Aberdeen Sheriff Court on a charge connected with a robbery.

On 7 February 2001 the Adoption and Fostering panel of the petitioners recommended that application be made to free the child for adoption.

The case was the referred to the Children's Hearing which, by a majority, decided that its advice to the court would be that a freeing order not be pursued.

Nevertheless, on 27 April 2001 the petitioners' Adoption and Fostering Panel resolved to continue with an application for a freeing order. That decision was ratified by their Assistant Director of Social Work, in line with the policy and procedures of the petitioners, on 2 May 2001.

On 15 May 2001 the present application was lodged with the Sheriff Clerk at Aberdeen.

In 2000 the child's maternal great aunt, MG, indicated an interest in caring for the child. In December 2000 an assessment of MG's suitability to be considered as an adoptive parent was instructed by the petitioners. That assessment was completed by Donna Johnston, an independent social worker in London, in February 2002.

Meantime the child had continued to live and be happy and well cared for by Mr. and Mrs. K.

In 2000 Mr. and Mrs. K indicated that they would be willing to adopt the child. Mr. and Mrs. K had previously successfully adopted a child originally placed with them for fostering.

It is likely that upon this application being granted, there will be an application for the child to be adopted by Mr. and Mrs. K.

The child has been or is likely to be formally placed for adoption.

Mr. and Mrs. K have demonstrated a willingness and an ability to be understanding of the child's mixed race background. To that end, Mrs. K suggested that if the child were to be adopted by her and her husband, they would afford contact with the child to the respondent's mother six times per year.

The child's maternal grandmother, CG is of mixed race. Throughout the child's life she has maintained good, regular contact with the child. CG is able to familiarise the child with her racial and birth family cultural background as the child grows up.

The child is of mixed race. Her father, according to the respondent, was white Scottish. The respondent's mother is of mixed race. The respondent's father was white Scottish. The respondent's maternal grandfather was of Indian descent and lived originally in the West Indies. The respondent's maternal grandmother was Afro Caribbean, with African and Scottish ancestors.

During 2001 the respondent failed to attend a number of contact visits with the child which the respondents had made available for her. A number of those failures were without justification.

From 1999 to May 2002, despite having legal representation, the respondent did not take steps to seek any increase in contact with the child.

The petitioners did not deliberately thwart or prevent contact visits between the child and the respondent or members of her family.

MG has had opportunities and time to travel to Aberdeen to meet the child. She has failed to do so except for two visits.

MG has met the child on three occasions, once three times over a week in October 200 (sic), once in January 2001 and once in February 2002.

MG is a stranger to the child. She does not send her presents, cards or letters directly.

On 5 February 2002 the respondent gave birth to a male child, B. She is coping with caring for that child.

The sheriff made nine findings in fact and in law as follows:-

The petitioners are an adoption agency for the purposes of the Adoption (Scotland) Act 1978

Parental rights and responsibilities in respect of the child are vested only in the respondent.

The child is subject to a supervision requirement of the Children's Hearing and resides with foster parents.

The child has been or is likely to be placed for adoption.

No reasonable parent would withhold agreement to the freeing of the child for adoption.

The respondent is withholding her consent to the order sought, namely the freeing of the child for adoption, unreasonably.

The respondent has persistently failed, without reasonable cause, to fulfil the parental responsibility in relation to the child, while the child was not living with her, to maintain personal relations and direct contact with the child on a regular basis.

Having regard to the child's racial origin and cultural background, it is in the child's best interests that she be freed for adoption.

Adoption is likely best to meet the needs of the child.

Finally the sheriff made four findings in law as follows:-

That having regard to all the circumstances, including the need to safeguard and promote the welfare of the child throughout her life as the paramount consideration, it would be best for the child to be freed for adoption.

That the child is too young to express her views.

That it is better that an order is made than not.

That the respondent's agreement to the making of an adoption order in respect of the child should be dispensed with on the grounds that

the respondent is withholding her agreement unreasonably and

the respondent has persistently failed, without reasonable cause, to fulfil the parental responsibility in relation to the child, while the child was not living with her, to maintain personal relations and direct contact with the child on a regular basis.

The principles upon which an appeal court may intervene

Before turning to the submissions which were advanced on appeal by counsel for DR, I think it may be helpful to be reminded of the principles upon which an appeal court should approach an appeal of this kind. These were considered in the well known case of A v B and C 1971 SC (HL) 129. At page 141 Lord Reid stated: "First, how should an appeal court approach a case of this kind? Adoption cases depend so much on general impression rather than the ascertainment of particular facts that, when the judge at first instance has seen the parties, an appeal court must be slow to reverse his decision unless he has misdirected himself as to the law or has otherwise clearly gone wrong". And at page 147 Lord Simon of Glaisdale quoted with approval some comments of Lord Hailsham of St Marylebone LC in In re W 1971 AC 682 at page 700: "..... in an adoption case, a county court judge applying the test of reasonableness must be entitled to come to his own conclusions, on the totality of the facts, and a revising court should only dispute his decision where it feels reasonably confident that he has erred in law or acted without adequate evidence or where it feels that his judgement of the witnesses and their demeanour has played so little part in his reasoning that the revising court is in a position as good as that of the trial judge to form an opinion". Lord Simon went on to quote what Lord Guest said at page 724 in the same case, namely: "Parliament has entrusted the decision of this matter in the first instance to the county court and, for my part, I should be reluctant to disturb a decision reached without error of law upon a matter which must depend to a large extent upon the impression formed by the trial judge as to the character of the mother and other witnesses" (and see also West Lothian Council v McG 2002 SC 411 at page 423B/C).

It was common ground that in deciding whether or not to grant the application in this case the sheriff was required to approach the matter in two stages. Firstly he had to decide whether one or other or both of the grounds relied upon in terms of section 16(2) of the 1978 Act had been established. If so, he had secondly to decide whether or not to dispense with DR's agreement upon whichever of these grounds had been established and, in so doing, he had to exercise a discretion in light of all the circumstances in accordance with section 6 of the 1978 Act - see Lothian Regional Council v A 1992 SLT 858. There was no dispute that the sheriff had correctly followed this approach, and it was submitted in short by counsel for ACC that, the sheriff having had the benefit of hearing the evidence in the case and not having misdirected himself in law or otherwise gone clearly wrong, I ought not to interfere with his decision. And even if the sheriff had been wrong to find that the ground referred to in section 16(2)(b) had been established, he would still have been entitled to proceed to the second stage since his finding that the ground under section 16(2)(c)(ii) had been established had not been challenged. At this second stage the sheriff had taken into account all the relevant circumstances in terms of section 6 of the 1978 Act and his findings in fact were just sufficient to support the conclusion which he had reached.

The sheriff's approach to DR's withholding of agreement

The sheriff considered whether or not DR was withholding her agreement unreasonably at paragraphs [11] to [17] of his note. Essentially what he did there was to compare the prospects for D in the event, on the one hand, that she were to remain in the care of Mr and Mrs K and be adopted by them and, on the other hand, that she were to be transferred to the care of either DR herself or her aunt (and D's great aunt) MG. At paragraph [17] the sheriff wrote:

In summary therefore, on the one side was the need for permanence, which could be achieved by freeing for adoption, the past and near certainty of a continuing stable, loving supportive home with the (Ks); on the other was at best uncertainty of two untried options, one with the respondent, with a difficult past and uncertain future, and the other with a virtual stranger to the child. If faced with those as the options for a child, it seemed to me that no reasonable parent would withhold her consent from a freeing order. Accordingly I decided that in terms of section 16(2)(b) the respondent was withholding her agreement unreasonably.

Counsel for DR advanced two principal criticisms of the sheriff's approach to the question whether or not DR was withholding her agreement unreasonably. He submitted in the first place that the sheriff had failed to address himself to all the relevant facts and circumstances in order to arrive at an objective answer to this question from the standpoint of the reasonable parent. Instead the sheriff had approached the matter as a straightforward choice between competing proposals for D's future care. It was, said counsel, as if the present case had been a dispute about residence and the sheriff had been asked to determine which of the opposing parties would be a more suitable custodian for D. Reference was made to Lothian Regional Council v A at pages 864L/865E and it was submitted that the sheriff had dealt with this chapter of the case by taking a view of what he thought was in the best interests of D and then simply concluding that DR must be unreasonable because she did not agree with his own conclusion. There was much more to the present case than the simple issue with whom D should live in the future. The sheriff ought to have asked himself what considerations a reasonable parent would have had in mind in deciding whether or not to withhold agreement and whether in light of those considerations it was objectively unreasonable for DR to have withheld her agreement in the present case. Counsel submitted that a reasonable parent in the position of DR would have had four considerations in mind in particular. These were, firstly, that the effect of an order declaring D free for adoption would be to put an end entirely to the legal relationship between DR and D and to deprive DR of all her parental rights and responsibilities in relation to D including the right to apply to the court for an order for contact with D (see section 11(3)(a)(iii) and 11(4)(b) of the Children (Scotland) Act 1995); secondly, that on 5^th April 2001 the children's hearing had in terms of section 73(13) of the 1995 Act given advice "not to pursue the freeing for adoption order", and in the reasons for their decision had stated: "The panel agreed by a majority decision for the advice to court to be not to pursue a freeing for adoption order. The panel felt that (DR) was making significant progress in her battle to overcome her drugs problem and hoped that this would continue to a satisfactory conclusion"; thirdly, that she (DR) had subsequently proved herself as a carer since she now had the care of her younger child B and was coping with him - see finding in fact 38; and fourthly, that the granting of an order to free D for adoption would be apt to create the wholly unreal situation in which her grandmother CG and half-brother B would have contact with her six times a year - see finding in fact 29 - but not DR herself despite the fact that she was B's carer. Counsel drew attention to the fact that the sheriff in his note had not discussed these four considerations or explained why it was unreasonable for DR in light of them to withhold her agreement. The sheriff had thus erred in his approach to this part of the case and in reaching the conclusion that DR was withholding her agreement unreasonably.

In response, counsel for ACC accepted that Mr and Mrs K had agreed that there should be contact between D and CG six times a year. There was evidence that CG had taken B with her during some periods of contact but it could not be assumed that this would continue in the future. Counsel submitted that it could not be right that a reasonable parent would be justified in refusing agreement on the ground only that a freeing order would preclude any further application to the court for contact between that parent and the child in question. A reasonable parent would look at all of the circumstances of the case. In any event, DR could not rely on this particular consideration since it had not been present in her mind when she had decided to withhold her agreement. There had been evidence before the sheriff of a failure by DR in the past to exercise contact with D when this had been made available to her, and also of the close attachment of D to Mr and Mrs K. By contrast, there had been a complete absence of any evidence that post-adoption contact between D and DR would have any purpose. The question whether a parent was unreasonably withholding agreement would depend on that parent's particular circumstances, and the sheriff would be entitled to look at issues such as the history of contact between parent and child, the age of the child and the extent and quality of such contact. At paragraphs [11] to [17 ] of his note the sheriff had discussed the history of the case and of contact between DR and D, the alternatives to the order sought by ACC and his concerns about the risk of harm to D in the event that either of the two alternative courses of action proposed by DR were to be followed. Having regard to all the circumstances the sheriff had arrived at the conclusion that no reasonable parent would withhold agreement. What was missing was a discussion about the issue of DR's losing her right to apply for contact in the future in the event that D were to be declared free for adoption. There was, said counsel, a good reason for this, namely that it had not been focused at the proof by DR. In this situation it was not correct to say that, because he had not considered this particular issue, the sheriff had failed to apply the correct test in this context. On the contrary, he had done so and had considered all the circumstances in respect of which evidence had been led.

In a brief reply on this aspect of the case, counsel for DR submitted that it did not matter whether the considerations which a reasonable parent would have been entitled to have had in mind in considering whether or not to withhold agreement had actually been considered by DR or not. The test was an objective one and, in applying it, the sheriff should have looked at all the considerations which a reasonable parent would have had in mind, even if some or all of these were not present in the mind of the parent in question.

In my opinion the submissions for DR are to be preferred. In A v B and C at page 141 Lord Reid observed: "He (the sheriff) had to weigh a number of factors in the balance. The test is an objective test - would a reasonable parent have withheld consent? I think that a reasonable parent, or indeed any other reasonable person, would have in mind the interests of claims of all three parties concerned, the child whose adoption is in question, the natural parents, and the adopting family. No doubt the child's interests come first, and in some cases they may be paramount. But I see no reason why the claims of the natural parents should be ignored. If the mother were deeply attached to the child and had only consented in the first place to adoption because of adverse circumstances, it would seem to me unjust that on a change of circumstances her affection for the child and her natural claim as a parent should be ignored. And the adopting family cannot be ignored either. If it was the mother's action that brought them in in the first place, they ought not to be displaced without good reason. So to balance these claims is no easy task". It is true that these observations were made in the context of an application for an adoption order but, as in the present case, the issue before the court was whether or not the natural mother was withholding her consent unreasonably. At the end of the day what the sheriff in the present case had to do, in deciding whether or not a reasonable parent would have withheld agreement, was to carry out a balancing exercise in light of all those factors which a reasonable parent would have taken into account, and in particular the interests of D, of DR and of Mr and Mrs K. It is certainly true that the sheriff here, unlike the sheriff in Lothian Regional Council v A, did carry out a balancing exercise of a kind. But it was limited to comparing, on the one hand, the option of D remaining in the care of Mr and Mrs K and, on the other hand, of her being transferred to the care of either DR or MG. In so doing it seems to me that the sheriff left out of account other relevant and material factors such as those mentioned by counsel for DR which in my view a reasonable parent would have laid in the balance in deciding whether or not to withhold agreement. It follows in my opinion that the sheriff's approach to this aspect of the matter was indeed flawed. But of course it does not necessarily follow from this that he reached the wrong conclusion here, and I shall revert to this question in due course.

Whether the sheriff's conclusions must have a basis in his findings in fact

It was acknowledged that the majority of the considerations which the sheriff had to take into account in deciding whether or not DR was withholding her agreement unreasonably were the same as he himself had to take into account in deciding whether or not to dispense with DR's agreement. The next major submission of counsel for DR, which related to three of these considerations, applied therefore both to the question whether the sheriff had been correct to find that DR was withholding her agreement unreasonably and to the question whether he was correct to dispense with her agreement. These three considerations are to be found narrated in paragraphs [11] and [12] of the sheriff's note where he wrote:

[11] ....... I accepted the evidence led by the petitioners that to remove the child from the (Ks) would be harmful to the child, whether in the short or the long term. I also accepted the evidence that the child was now entitled to a degree of permanence in the arrangements for her future: accordingly a continuation of the status quo whereby the child is in foster placement under a supervision requirement of the children's hearing was not, in my view, an acceptable option.

[12] In contrast, a sad outcome of the limited contact which the respondent has had with the child is, according to evidence which I accepted, that there is no bond or attachment between the child and the respondent, at least as far as the child is concerned.

Counsel for DR suggested that the sheriff had relied on these same three considerations in paragraph [43] of his note where he wrote:

[43] In my view, no order short of adoption is best for the child. At her age and stage of development her interests would be best served by the permanence of living with her birth parent or being adopted. For the child to return to live with the respondent is not a realistic option now or in the foreseeable future. In addition such a substantial degree of attachment has grown up between the child and the (Ks) that to remove her from them would be harmful to her.

Counsel for DR suggested that there were three propositions to be found in these passages from the sheriff's note, namely (1) that to remove D from the Ks would be harmful to her, whether in the short or the long term, (2) that she was now entitled to a degree of permanence in the arrangements for her future and that a continuation of the status quo was not an acceptable option and (3) that there was no bond or attachment between D and DR, at least as far as D was concerned.

Counsel submitted that there was no adequate basis either in the sheriff's findings in fact or the evidence itself to support the first of these conclusions. He drew attention to the sheriff's findings in fact 11, 25, 26, 27 and 29 and pointed out that there was no finding in fact in relation to any harmful effect, if any, that a removal of D from the care of Mr and Mrs K would have. Counsel drew attention here to two passages in the judgement of the Lord President (Hope) in Lothian Regional Council v A. The first of these is at page 865J/K where his Lordship stated: "In these circumstances, since the reasons given are so unsatisfactory, we would have wished to examine the facts for ourselves in order to see whether the decision which the sheriff took could be supported. But here we encounter the second criticism for the respondents, which is that the sheriff based his decision on matters which were extraneous to his findings in fact". Then at page 866E/F his Lordship, after referring to various facts and circumstances which might seem to have been relevant to the decision which the sheriff in that case had to take, commented: "But there is a complete absence of material in the findings of fact to support these comments. Moreover, although the sheriff states, in a passage which we have already quoted, that his decisions are based on his perception of the demeanour, attributes, skills and functioning of the respondents and their respective parents, he has not provided us with any findings of fact on these matters. Counsel for the petitioners acknowledged that the findings were deficient in this respect, but they submitted that the sheriff had reached an acceptable conclusion based on the findings as they stand. We regret that we cannot agree. The difficulty in which we find ourselves is indicated by section 32(4) of the Court of Session Act 1988 which requires us to specify in our interlocutor the several facts material to the cause which we find to be established by the proof. As we have already mentioned earlier in this opinion, it is not practicable for us to review the whole of the evidence in this case, and we can say nothing about the demeanour or attributes of the respondents and their respective families since they have not appeared before us as witnesses." Counsel suggested that similar difficulties arose in the present case. He pointed out that no expert psychiatric or psychological evidence had been led by ACC, and he then proceeded to examine the evidence of the witnesses for ACC which he submitted was generally vague, confused and contradictory. Moreover, said counsel, the sheriff had omitted to deal with, or explain why he had rejected, the evidence given by DR's witnesses. He emphasised that he did not go so far as to say that the sheriff had not been entitled to find that there would be some harm to D occasioned by removing her from the care of Mr and Mrs K. But he submitted that the sheriff had gone too far in light of the evidence in holding that such an event would result in harm to D in the long term.

Turning to the sheriff's second conclusion on the issue of permanence, counsel submitted that the same basic criticism applied here, namely that there were no findings in fact to vouch this conclusion. In any event, the sheriff had overlooked the point that it did not follow that, if the current application were to be refused, a continuation of the status quo with D remaining under a supervision requirement would be the inevitable result. A refusal of the application would leave the door open to the prospective adopters to present an application for an adoption order in relation to D. Moreover, this conclusion involved an assumption on the part of the sheriff that a return of D to the care of DR was not a possibility and that it was impossible for a degree of permanence to be achieved in this way. Counsel submitted that there was no basis in the findings in fact to support a conclusion about DR's potential inability to cope with D. It was accepted that in findings in fact 18 and 19 the sheriff had found that DR was receiving methadone and had been placed on a drug treatment and testing order. But there were no findings in fact in relation to the impact of these matters on her ability to care for D. The only finding in fact which touched upon this issue was finding in fact 38 which indicated that she was coping with caring for B. In any event there was no basis in the evidence for a conclusion to the effect that it was not a realistic option to think of D returning to live with DR. In this context it was remarkable that the witnesses for ACC had failed to examine DR's current circumstances following the decision to pursue an application for the freeing order. In particular, the witnesses had failed to inform themselves about DR's continuing drug rehabilitation and her current role in caring for B. Moreover, the sheriff had once again failed to deal with the evidence in this context of DR and her witnesses who had not been cross-examined about this issue. In point of fact, DR no longer required to take methadone.

Finally in this context counsel for DR challenged the sheriff's conclusion that there was no bond or attachment between D and DR, at least as far as D was concerned. He referred here to the sheriff's finding in fact 12 which had been spoken to by Mrs K, but he submitted that there had been contradictory evidence which the sheriff had omitted to deal with or explain why it fell to be rejected.

Counsel for ACC submitted that any assessment of the evidence was a matter for the sheriff. He had been best placed to determine what evidence he should rely upon and to what extent, and what weight should be given to the evidence of the witnesses whom he had heard. On the point which had been made by counsel for DR to the effect that none of the witnesses for ACC had had any expertise in the field of child psychology, the same criticism might be directed at the evidence of DR's witness Mr Patel who had spoken to what had been the focus of the proof before the sheriff, namely the racial issue. He too had been a social worker rather than an expert in child psychology. Counsel submitted that in the light of the evidence of the three social workers called on behalf of ACC and of Mrs K there had been ample evidence of a risk of harm to D if she were to be separated from Mr and Mrs K having resided with them for so long. It was clear, said counsel that none of DR's witnesses had been professionally qualified in child care issues or the field of child psychology, and all of them, including DR herself, had had only limited experience of D. The criticism that the sheriff had apparently ignored these witnesses was not well founded. It was more likely that he had not made any findings in fact on the basis of their evidence since he had not been prepared to rely upon it. It was accepted that there were no findings in fact to support the sheriff's conclusion in paragraph [11] of his note that a continuation of the status quo was not an acceptable option. But there was evidence to support this conclusion. In particular the three social workers had considered the alternatives to adoption and had found them not to be preferable to an adoption order or an order declaring D free for adoption.

Referring to the submission of counsel for DR to the effect that the three conclusions reached by the sheriff in paragraphs [11] and [12] of his note were not supported by his findings in fact, counsel for ACC drew attention to Grampian Regional Council v R 2000 SLT 116, and in particular the passage in the Opinion of the Court which is quoted at page 120A/G and which reads:

The second ground of appeal is in these terms: "The sheriff erred in law in making an order declaring the child free for adoption in the absence of any finding that the decision was reached having regard to the factors set forth in s 6 of the said Act. In particular (a) there is no finding that the decision was reached having regard to the need to safeguard and promote the welfare of the child throughout her childhood and (b) there is no finding as to the personal circumstances of (1) the child, (2) the natural parents or (3) any prospective adopters."

In a broader argument, to which we shall come, the appellant touched on a number of matters relating to the welfare of the child and the circumstances of the various parties. On the narrower legal point raised by the second ground of appeal - relating to the absence of any finding that the decision was reached having regard to the factors set forth in s 6 - he did not really elaborate upon the terms of the written ground. It is to be noted that s 6 (unlike s 18 (3) with which we have just been concerned) does not require the court to be "satisfied" that any particular matter is the case. Section 6 requires a court to "have regard to" all the circumstances. In the terms substituted by s 95 of the Children (Scotland) Act 1995, this section provides that the court "shall regard" the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount "consideration"; and in the section as it previously read the requirement to have regard to all the circumstances was qualified by the words "first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood".

The section does not appear to us, in either formulation, to be one concerned with specific findings, of the type which require inclusion as findings in fact. It is rather concerned with matters which involve the court's impressions, judgment and discretion, and the weighing of various considerations and the various reasons which there might be for adopting one course rather than another. That being so, we find it natural that the findings in fact do not set out the points referred to in the ground of appeal. What is important is that the sheriff, in explaining what he has done in his note and opinion, has in fact had regard to, and taken into consideration, the matters with which s 6 concerns itself. We do not consider that specific reference to s 6 will always be necessary. But in this case, when turning to the second stage and the question of dispensing with the parents' agreement, the sheriff refers at the outset to s 6. After referring back to matters which he had already considered at the first stage, he goes on to note that the manager of the Huntly social work department had stated that he saw it as "a very considerable gamble" to return the child to her parents. And he goes on to say that "when the stakes are so very very high - the immediate and perhaps the lifelong welfare of the child - I do not consider that it is appropriate to gamble with such matters, but rather to go for the proven status quo which has worked so well for all but four days of the child's life". At various points in the note and opinion the sheriff deals in some detail with matters of the kind set out in this ground of appeal. We do not find it necessary to refer to those in detail. On the specific point of law, we do not consider that any specific findings were required, and we find it clear from what the sheriff says that he has in fact had the appropriate matters at the forefront of his mind in considering all the issues which were before him.

Counsel submitted that in the present case the sheriff had in his note demonstrated that he had considered the evidence placed before him and had had at the forefront of his mind his duties in terms of section 6 of the 1978 Act, and further that the absence, where there was an absence, of a finding in fact in support of any of his conclusions was not fatal. Turning to the possibility of DR caring for D, counsel submitted that the evidence supported the conclusions of the sheriff expressed in paragraph [15] of his note where he wrote: "I was not convinced by the evidence that the respondent is even now entirely free of difficulties in her life. For example, she is still prescribed methadone and is the subject of a Drug Treatment and Testing Order imposed on her in 2002 by a criminal court. In my view to return the child to the respondent involved a potential risk of arrangements breaking down again. Such a situation would not be in the interests of the child". As for the suggestion that the sheriff had failed to resolve the conflict between the witnesses for ACC and CG in particular, counsel submitted that there was no clear conflict between the evidence of CG on the one hand and the witnesses for ACC on the other, and that in any event the sheriff had made his finding in fact 12 which demonstrated that he had preferred the evidence of the witnesses for ACC.

In his reply to the submissions of counsel for ACC, counsel for DR submitted that she had read too much into the decision in Grampian Regional Counsel v R. That case was not authority for the proposition that there was no requirement to make findings in fact in relation to the matters to be taken into account in applying the tests under sections 16(2)(b) and 18(1)(b) of the 1978 Act. On the contrary, the fact that it was not necessary for the sheriff to find in fact in terms that the factors set out in section 6 of the 1978 Act had been taken account of did not elide the requirement to make findings in fact in relation to the matters which the sheriff had held to be proved and upon the basis of which he had decided the case under reference to the two stage test set out in Lothian Regional Council v A. If the Extra Division in Grampian Regional Council v R had intended to depart from the previous practice in freeing cases in regard to the making of findings in fact as set out in Lothian Regional Council v A, it was likely that this would have been stated in terms.

I certainly think that it would have been preferable if the conclusions expressed by the sheriff in paragraphs [11], [12], [15] and [43] of his note had been stated as findings in fact. But I do not think that it is necessarily fatal to his decisions both in relation to section 16(2)(b) and in relation to section 18(1)(b) that these are based to some extent at least on matters which were extraneous to his findings in fact and were to be found only in his note. Indeed some might consider it remarkable that a major decision affecting the welfare of a child throughout her life might depend upon a sheriff making a finding in fact to the effect that a certain state of affairs existed rather than simply stating in his note that he accepted the evidence of those witnesses who said that that state of affairs existed. This was a summary application, so that rule 12.2(3)(a) of the Ordinary Cause Rules had no application. Strictly, all that the sheriff was required to do in terms of section 50 of the Sheriff Courts (Scotland) Act 1907 was summarily to dispose of the matter and give his judgement in writing. The form his judgement should have taken is, so far as I am aware, nowhere specified in the rules applicable in the Sheriff Court. In Lothian Regional Council v A the Lord President at page 865L observed that the sheriff in that case had quite properly followed the precursor of rule 12.2(3)(a) "by setting out findings in fact, since this was a case in which he heard evidence". But it is always a nice question for a sheriff to decide how detailed his findings in fact should be. It respectfully seems to me that the Lord President's comments in Lothian Regional Council v A about the absence of material in the sheriff's findings in fact must be read in light of the apparent paucity of any findings in fact at all in that case in relation to the decisions to be made by the sheriff in terms of sections 16(2)(b) and 18(1) and the impracticability noted by the Lord President (see page 866F) of reviewing the whole of the evidence in that case. By contrast, in the present case the sheriff has at least made some findings in fact which bear upon these decisions, and there is not the same practical difficulty in reviewing the evidence (and indeed both counsel did so at some length in the course of their submissions). Moreover, it is I think important to look carefully at the ground of appeal which was under consideration in Grampian Regional Council v R in the passage quoted in paragraph [20] above. I refer in particular to the second sentence which reads: "In particular (a) there is no finding that the decision was reached having regard to the need to safeguard and promote the welfare of the child throughout her childhood and (b) there is no finding as to the personal circumstances of (1) the child, (2) the natural parents or (3) any prospective adopters". The emphasis is mine, and it appears that the passage at page 120E in the Opinion of the Court which reads: "That being so, we found it natural that the findings in fact do not set out the points referred to in the ground of appeal" must apply just as much to the matters in paragraph (b) as to those in paragraph (a) of the ground of appeal. And again at page 120G it was said: "At various points in the note and opinion the sheriff deals in some detail with matters of the kind set out in this ground of appeal. We do not find it necessary to refer to those in detail. On the specific point of law, we do not consider that any specific findings were required, and we find it clear from what the sheriff says that he has in fact had the appropriate matters at the forefront of his mind in considering all the issues which were before him". Once again, it appears to me that these words apply to all the matters referred to in the ground of appeal and not just those at paragraph (a) (and in passing I note that Lothian Regional Council v A was in fact referred to in Grampian Regional Council v R - see page 119G). In the circumstances I do not think that it can be said that the sheriff erred in law in taking account of the matters referred to in paragraphs[11], [12], [15] and [43] of his note albeit that they are not reflected in his findings in fact.

Having read through the passages in the evidence to which I was referred by both counsel, I am quite satisfied that there was an adequate basis in the evidence for the conclusions expressed by the sheriff in these paragraphs. As is clear from the passages from the judgements of the Lord Chancellor and Lord Guest in In re W which I have quoted in paragraph [6] above, the assessment of the witnesses and the evidence which they gave were pre-eminently matters for the sheriff, and in my opinion it would be wrong for an appellate court to interfere with the conclusions expressed by him in the four paragraphs in question. Besides, I think that it is helpful in this context to be reminded of two further observations made by Lord Reid and Lord Simon of Glaisdale respectively in A v B and C. At page 142 Lord Reid stated: "There is one other general observation which I think it right to make. In a case like this I think that a judge is well able to estimate the probable effect of uprooting a child of tender years and transferring it from adopting parents, with whom it is happy, to its natural parents, of whom it has no recollection. In unusual cases medical evidence may be helpful, but I should be sorry to see any general tendency to call medical evidence in these cases". And at pages 147/8 Lord Simon observed: "Expert evidence is not required to tell us that the handing over of the child from a family into which he has been integrated to one of total strangers is likely to be far more disruptive and damaging to him now than it would have been at the end of 1968 or up to the middle of 1969. This consideration should not, in my judgement, preclude your Lordships as an appellate tribunal from allowing the appeal if it were clear if the courts below had proceeded in error - justice to the appellants would demand no less - but I think it should impose some additional caution before interfering with a decision which, granted a correct approach in law, is primarily one of judgement by an instance court of matters of fact and of degree and of the balance of competing claims". So too in the present case I do not think that the sheriff needed to hear from a child psychologist in order to be satisfied that D would be harmed, both in the short and in the long term, if she were to be removed now from the care of Mr and Mrs K. I understood counsel for DR to acknowledge that in this event there would be some harm to D. In my view, the damaging effect emotionally upon the child in the short term of such a move could not be doubted. As for the longer term, I think that it would be hard to credit the suggestion that in her teenage and adult years D would not be adversely affected, at least to a degree, by such a traumatic experience in her early childhood as her removal from the care of Mr and Mrs K. The effect of such an experience in later life will of course vary from one individual to another, but it will not do in my opinion to propose that there may be some individuals who, after the initial trauma, would live out the rest of their days altogether unscathed by such an experience. Of course, in some cases it may be worth paying the price of such trauma in order to secure some other demonstrable benefit - but not I think in this case.

Whether DR's agreement unreasonably withheld

Having disposed of the objections to the sheriff's conclusions in these four paragraphs, I should revert to the issue whether DR was unreasonably withholding her agreement in terms of section 16(2)(b). Although the sheriff's approach to this issue was flawed, I am of the opinion that he nonetheless reached the correct conclusion. As already indicated, counsel for DR drew attention to four considerations which a reasonable parent would have had in mind when deciding whether or not to withhold her agreement to the making of adoption order. But of course there were other factors too which a reasonable parent would have had in mind, a number of which are mentioned by the sheriff at paragraphs [11] to [17] of his note. I refer in particular to the harm that would be done to D if she were to be removed from the care of Mr and Mrs K, the need for permanence in the future arrangements for her care, the absence of a bond or attachment between D and DR and the uncertainty of the two alternative options for D's care, in the hands of either DR or MG. A reasonable parent would also in my view have taken into account other factors, including the following:-

The fact that she (DR) had persistently failed, without reasonable cause, to fulfil her parental responsibility in relation to D, while D was not living with her, to maintain personal relations and direct contact with her on a regular basis.

D's mixed race background, albeit that the significance of this ought not to be exaggerated given that both D's father and DR's father were white Scottish.

D has evidently thrived in the care of Mr and Mrs K and would be more than happy to remain in their care. A reasonable parent would recognise how very difficult it would be for her, even with the most sympathetic guidance, to understand why it might be thought appropriate that she should be removed from the care of Mr and Mrs K.

Mr and Mrs K are devoted to D to the extent that they have indicated that they would be willing to adopt her, and it is likely that they will do so. A reasonable parent would recognise the distress that would be caused to Mr and Mrs K in these circumstances if D were to be removed from their care.

As D's mother, DR understandably wishes to have D rehabilitated to her care and does not wish to surrender her parental rights and responsibilities in relation to D. A reasonable parent would quite properly take into account her own distress at having to surrender the care of her child to others.

Whatever the outcome of this application, it is unrealistic to expect that D will be removed from the care of Mr and Mrs K so long as they are willing to care for her. A reasonable parent would recognise the damage that could be done to D by any further delay in determining her future, and would want the best arrangements to be made for her as soon as possible.

Adoption would give D the stability and security of a permanent home and would be the best way of safeguarding and promoting her welfare throughout her life.

In my opinion, when regard is had to all the relevant considerations, the conclusion clearly emerges that DR is unreasonably withholding her agreement to the making of an adoption order in relation to D. As the sheriff observed at paragraph [47] of his note, the decision that D should be freed for adoption will no doubt be most distressing for DR, given her understandable wish as her mother to be entrusted once more with her care. But sympathy for DR's feelings is not the proper method of approach. The reasonableness of her decision must be judged by an objective standard. A reasonable parent in her position would put the welfare of D first and, if she did that, she could not in my view reasonably withhold her agreement.

Whether the adoption agency was obliged to investigate the natural mother's current circumstances

Counsel for DR next submitted that it had been unacceptable in the context of an application of this kind for ACC to have failed to investigate a change in DR's circumstances of the magnitude that had occurred by the time of the proof before the sheriff. It was the sheriff's duty, said counsel, to decide the application on the basis of the facts as they were at the time of the proof and not when the social work department of ACC had decided that an application for a freeing order in relation to D should be pursued. Even if the sheriff was entitled to entertain doubts about DR's ability to care for D, he had erred in granting the application while this very significant matter had remained uninvestigated by ACC - see City of Edinburgh Council v S 2000 SLT (Sh Ct) 147 at page 152K/L. In the present case there had been an alternative course of action open to the sheriff, namely to exercise his discretion to refuse the application. This would have had two advantages. It would have allowed these important matters to be investigated properly and it would have enabled DR, if so advised, to seek an order for contact with D in the context of an adoption process.

Counsel for ACC drew attention to the fact that the sheriff had made findings in fact 17, 18 and 19 (and see also 38) about DR's up-to-date circumstances and had also commented upon these in paragraph [15] of his note. It was, said counsel, a matter for the sheriff to consider these circumstances having heard all the evidence at the proof.

In my opinion there is no substance in the submissions which were made for DR in this context. It was no doubt the duty of the sheriff in terms of section 6 of the 1978 Act to have regard to all the circumstances prevailing at the time of his decision to grant the present application. But I do not think that there was necessarily any obligation on ACC to investigate and lead evidence upon changes in DR's circumstances following their decision to present an application to free D for adoption. It might have been a different matter if DR had not herself given evidence at the proof or had evidence led from other witnesses on her behalf. But she did give evidence along with other members of her family about her current circumstances so there was no need for ACC to investigate or lead evidence about these matters as well.

The advice of the children's hearing

Counsel for DR next submitted that the sheriff had failed to consider the advice of the children's hearing as he was required to do in terms of section 73(14) of the Children (Scotland) Act 1995. Counsel pointed out that the sheriff had not discussed this advice in his note. It was not sufficient, said counsel, for the sheriff simply to pay lip-service to the requirement imposed by section 73(14) by making a finding in fact to the effect that the advice of the children's hearing had been tendered without also considering the tenor of the advice. There was no indication that the sheriff had done this. This was especially important in light of the reasons which had been given by the hearing for their advice that an application to free D for adoption should not be pursued. It had been incumbent upon the sheriff to consider this advice and say why, despite it, he had chosen to grant the application.

In response, counsel for ACC drew attention to the sheriff's findings in fact 21 and 22. It was accepted that there was no discussion in his note about the advice tendered by the children's hearing. But he had made a finding in fact about it and he had been bound by section 73(14) and rule 2.11(5) of the Child Care and Maintenance Rules 1997 to consider the advice of the hearing, and it was reasonable to infer that he had done so. In addition to making a finding in fact about the matter, he had heard evidence about it (see pages 64/7 of the notes of evidence) and had interjected with a question of his own. In any event, it was not surprising that he had not relied on the advice given that it had been tendered by the children's hearing on 5^th April 2001 at which stage DR had still been undergoing drug treatment in Holland and had yet to suffer the relapse which was described later in the evidence. Besides, the reasons given by the children's hearing for their advice were far from clear.

In my opinion it would certainly have been preferable if the sheriff had referred to the advice in his note and explained why he was not prepared to follow it. This he could have easily done in one or two sentences given the length of time that had elapsed between the date upon which the advice was given and the date upon which the sheriff's judgement was issued and the reasons stated by the children's hearing which were, as counsel for ACC observed, not at all clear. But I do not think that it follows from the fact that the sheriff did not refer to the advice in his note that he did not consider it as he was required to do. He heard evidence about it (in the course of which the reasons stated by the children's hearing were considered - see page 65) and he applied his mind consciously to it to the extent of making a specific finding in fact about it. In these circumstances it would I think require the mind of a medieval scholastic seriously to maintain that he had not also considered it.

Article 8 of the European Convention on Human Rights

Counsel for DR then submitted that at the second stage of his consideration of the present application the sheriff ought to have exercised his discretion in a matter compatible with DR's right to respect for her family life in terms of article 8 of the European Convention on Human Rights. Counsel drew attention to section 6(1) of the Human Rights Act 1998 which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. In this context a public authority includes a court or tribunal - see section 6(3)(a). Article 8(1) provides: "Everyone has the right to respect for his private and family life, his home and his correspondence". Article 8(2) provides: "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". Under reference to Johansen v Norway 1996 23 EHRR 33 counsel submitted that some overriding requirement had to be demonstrated to justify dispensing with an individual's parental rights. In the present case there had been another course open to the sheriff, namely to refuse the application to free D for adoption, and this would have paved the way for an application for adoption. Thus it was neither necessary nor was there any overriding requirement that the sheriff should have exercised his discretion as he had done in granting the present application. In view in particular of two matters, namely DR's suitability as a carer and the ongoing contact between D and other members of her family, the appropriate course, and the course compatible with DR's rights under article 8, would have been for the present application to have been refused so that the issue of DR's current circumstances and a possible application by her for a contact order could be ventilated in an adoption process. This would allow her right to contact with D to be preserved. Counsel referred also to West Lothian Council v McG, the decision in which he suggested indicated that it was at least doubtful whether the current law in relation to an application to free a child for adoption would survive a challenge under the European Convention. Counsel referred here also to the observations of Sheriff Morrison in City of Edinburgh Council v S at pages 151/2 in regard to the advantages, according to Professor Triseliotis (who is a well known expert in this field) of open adoptions in which adopted children continue to have contact with their natural parents after being adopted.

In response, counsel for ACC pointed out that the right conferred by article 8 was a right to respect for private and family life, and not an absolute right to family life. Counsel submitted that the import of the decision in Johansen v Norway was to the effect that interference by a public authority with the rights conferred by article 8 would amount to a violation of the article unless the interference was in accordance with domestic law (which it clearly was in the present case) and was done in pursuit of a legitimate aim, namely the protection of D's welfare, and necessary in a democratic society to meet this aim. The sheriff, having considered the alternatives available to him and having considered also the necessity of making the order sought for the purpose of protecting D, had exercised his discretion in favour of granting the order which he had determined was necessary to protect D's welfare. Counsel submitted that the domestic courts of a state had a wide margin of appreciation afforded to them in the application of the rights conferred by the Convention, and the question in the present case was whether the sheriff's decision fell within this margin of appreciation. Counsel submitted that the sheriff had not gone beyond what was necessary in the circumstances and had acted in a way that fell within this margin of appreciation. Finally, counsel pointed out that D too had a right to respect for her private and family life under article 8.

In Johansen v Norway the applicant complained to the European Court of Human Rights under, inter alia, article 8 of the Convention of a number of issues relating to the fact that her daughter S had been taken into care and that she had been deprived of her parental rights and of access to S. S was born on 7^th December 1989, and on 13^th December 1989 the decision was made to take her provisionally into care on the grounds that the applicant, because of her physical and mental state of health, was considered incapable of taking care of S. In accordance with this decision, S was placed in a short-term foster home on 19^th December 1989 and the applicant was allowed to visit her twice a week. Subsequently, on 3^rd May 1990, the relevant Client and Patient Committee decided by a majority to take S into care; to deprive the applicant of her parental responsibilities (which as a result were transferred to the child welfare authorities); to place S in a foster home with a view to adoption; to refuse the applicant access as from the moment of the child's placement in the foster home and to keep the latter's address secret. S was thereafter placed with foster parents on 30^th May 1990, and the applicant had not had access to or seen her since. It appears that the applicant pursued two separate lines of appeal through the Norwegian courts, but all without success. She thereafter complained to the European Court about the decision dated 3^rd May 1990. She alleged that the taking into care of her daughter S, the refusal to terminate the care, and the deprivation of her parental rights and access gave rise to violations of article 8. The Court unanimously held that the taking into care of S and the maintenance in force of the relevant care decision did not give rise to a breach of article 8, but by a majority of eight to one decided that the decision of 3^rd May 1990 had constituted a violation of article 8, insofar as it deprived the applicant of her access and parental rights in respect of S. The reasoning behind the court's conclusions is to be found in a number of passages in paragraphs 52 et seq of the judgement, and it may be of assistance to set these out in full:

The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by article 8. The impugned measures, as was not disputed, evidently amounted to interferences with applicant's right to respect for her family life as guaranteed by paragraph 1 of article 8 of the Convention. Such interference constitutes a violation of this article unless it is "in accordance with the law", pursues an aim or aims that are legitimate under paragraph 2 of article 8 and can be regarded as "necessary in a democratic society".

It was undisputed before the Commission and, with one exception, before the Court that the impugned measures had a basis in national law, and to that extent, the Court is satisfied that such was the case.

The exception was an allegation by the applicant .... to the effect that the provisional taking into care of her daughter had failed to fulfil the condition as to risk of harm in section 11 of the Child Welfare Act 1953.

56. The Court sees no reason to doubt that the provisional taking into care of the daughter had a basis in Norwegian law ......

Those who appeared before the Court agreed that the relevant domestic law was clearly intended to protect the interests of children and that there was nothing to suggest that it was applied for any other purpose.

The court is satisfied that the contested measures were aimed at protecting the "health" and "rights and freedoms" of the applicant's daughter and thus pursued legitimate aims within the meaning of article 8(2).

The applicant disputed that the interference with her right to respect for family life had been "necessary". In this connection she challenged a number of aspects of the domestic reasons, namely ...... (2) the merits of the taking into care of her daughter S and the maintenance in force of the care decision; (3) the merits of the deprivation of her parental rights and access ......

In determining whether the impugned measures were "necessary in a democratic society", the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of article 8(2).

In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending upon such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation.

The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and the young child are effectively curtailed.

It is against this background that the Court will examine whether the measures constituting the inteferences with the applicant's exercise of her right to family life were "necessary".

The Court proceeded to examine the reasons for the decision of the Client and Patient Committee dated 3^rd May 1990 to take S into care and to refuse to terminate the care. Having done so, the judgement continued:

In the light of the foregoing, the Court is satisfied that the taking of the applicant's daughter S into care under the maintenance in force of the care decision concerned were based on reasons which were not only relevant but also sufficient for the purposes of article 8(2). The measures were supported by painstaking and detailed assessments by the experts appointed by the Committee and the City Court. The finding of fact being primarily a matter for the national authorities, the Court will not substitute its views for theirs as to the relative weight to be given to the expert evidence adduced by each party. It considers that in taking the above care measures the national authorities acted within the margin of appreciation afforded to them in such matters. Accordingly, these measures did not constitute a violation of article 8.

The Court proceeded to consider the issues raised by the decision to deprive the applicant of her parental rights and access. Having done so, the Court reached the following conclusions:

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

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

The question whether the deprivation of the applicant's parental rights and access was justified must be assessed in the light of the circumstances obtaining at the time when the decisions were taken and not with the benefit of hindsight. That question must moreover be considered in the light of the reasons mentioned in paragraphs 71 to 73 above for taking the daughter into care and for maintaining the care decision in force.

It is also relevant that it was in the child's interest to ensure that the process of establishing bonds with her foster parents was not disrupted. As already mentioned, the girl, who had been taken into care shortly after birth and had already spent half a year with temporary carers before being placed in a long-term foster home, was at a stage of her development when it was crucial that she live under secure and emotionally stable conditions. The Court sees no reason to doubt that the care in the foster home had better prospects of success if the placement was made with a view to adoption. Furthermore, regard must be had to the fact that the child welfare authorities found that the applicant was not "particularly motivated to accept treatment" and even feared that she might take her daughter away .....

In the Court's opinion, the above considerations were all relevant to the issue of necessity under article 8(2). It remains to be examined whether they were also sufficient to justify the Committee's decision of 3^rd May 1990 to cut off the contact between the mother and the child.

In the first place, it must be observed that during the period between the birth of the applicant's daughter on 7^th December 1989 and the Committee's decision of 3^rd May 1990, the applicant had had access to her child twice a week in a manner which does not appear to be open to criticism.

Secondly, as indicated in the Committee's decision of 3^rd May 1990, the applicant's life-style had by then already somewhat changed for the better.

It was rather the difficulties experienced in the implementation of the care decision concerning her son which provided the reason for the authorities' view that the applicant was unlikely to co-operate and that there was a risk of her disturbing the daughter's care if given access to the foster home.

However, it cannot be said that those difficulties and that risk were of such a nature and degree as to dispense the authorities altogether from their normal obligation under article 8 of the Convention to take measures with a view to reuniting them if the mother were to become able to provide the daughter with a satisfactory upbringing.

Against this background, the Court does not consider that the decision of 3^rd May 1990, insofar as it deprived the applicant of her access and parental rights in respect of her daughter, was sufficiently justified for the purposes of article 8(2), it not having been shown that the measures corresponded to any overriding requirement in the child's best interests.

Therefore the Court reaches the conclusion that the national authorities overstepped their margin of appreciation, thereby violating the applicant's rights under article 8 of the Convention.

Before turning to consider the circumstances of the present case, I think it may be helpful also to notice briefly certain of the circumstances which obtained in West Lothian Council v McG. In that case the child D was born in February 1992 and lived with his mother and his father P until August 1995. He was then placed in foster care and contact between him and P was infrequent. In October 1996 D was returned to the care of his mother, she and P having by this time separated. But D continued to have contact with P. In February 1998 D was again placed with foster carers and in June 1999 the local authority applied to the sheriff for an order declaring D free for adoption. P suffered from mental illness and could not care for D, but by that time they were in regular contact and wished to continue to have contact. The sheriff granted the order sought, and his decision was affirmed on appeal by the Second Division on 10^th May 2002.

At paragraphs [66] and [67] on page 423 the Lord Justice Clerk (Gill) considered an argument by counsel for P that the sheriff should have exercised his discretion whether or not to dispense with P's consent in a way that was compatible with the right to family life under article 8 of the convention. It was said that the loss of the right to contact and of the right to seek an order for contact from the court was in conflict with the rights of both P and D. His Lordship rejected this argument, pointing out that the sheriff's decision pre-dated the coming into force of the Human Rights Act 1998 and that the argument under article 8 had never been put to the sheriff.

Lord Reed also made various observations on this particular argument, inter alia, at paragraphs [2], [3], [6], [11] and [12] of his judgement at pages 426/9. He stated:

[2] At the heart of the present case is the fact that a freeing order severs the legal relationship between a parent and his or her child. It cannot be made conditional on the parents having a continued right of contact with the child. It has the effect of barring the parent from subsequently applying to the court for an order for contact with the child: Children (Scotland) Act 1995, section 11(3)(a)(iii) and (4)(b). In this regard the parent is placed under a disability which does not apply to any other person.

[3] These consequences of a freeing order are plainly a matter of the greatest importance. It is difficult to imagine a more drastic intervention by the state in family life than the termination of the legal relationship between parent and child. It is a matter of special importance in circumstances such as those of the present case. This is not a case where the factual link between parent and child has already been irrevocably broken, and where the freeing order merely gives legal recognition to a situation which already exists de facto. On the contrary, D sees Mr P regularly. He knows that Mr P is his father ..... He wants to remain in contact with Mr P. He has expressed a wish to live with Mr P when he is older. He would be upset if contact with Mr P ceased ..... (His Lordship then considered the circumstances of a younger child who had a different father, with whom he too was in contact). Looking at the matter from the perspective of the parents, it is clear that continued contact with their sons is also a matter of great importance to them both. In these circumstances, the termination of any legal right to have contact with their children, and the impossibility thereafter of their ever making any application to a court in relation to contact, is naturally a matter of concern to them, as it would be to any reasonable parent in such circumstances.

[6] (His Lordship drew attention to certain provisions in section 10 of the Children Act 1989). Section 10 is the provision in English law which corresponds to section 11 of the 1995 Act; but unlike the Scottish provision, it does not impose an absolute bar on applications by the birth parents of adopted children, but merely requires them to obtain the leave of the court to make the application.

[11] It may be that the problem raised in the present case will become more acute in cases to which the Human Rights Act 1998 is applicable. That Act does not in my opinion have any application to the present case, for the reasons explained by your Lordship in the chair; and I would prefer to reserve my opinion on the implications of the Act for current adoption procedure and practice until those issues arise for decision. That said, it is I think reasonable to observe that the implication of the submissions made on behalf of the Scottish Ministers was that, if the making of a freeing order without any possibility of the birth parent's thereafter seeking to have contact regulated by the court were to be incompatible in particular circumstances (my emphasis) with the birth parents' Convention right to respect for his or her private and family life, then the freeing order should not be made.

[12] The argument for the Scottish Ministers presents courts with an "all or nothing" choice in dealing with an application for a freeing order in circumstances such as those of the present case. It is at least a matter for consideration whether a legislative framework which allows for greater flexibility may not better enable courts to promote the welfare of the child, as the 1978 Act requires, and also to strike a fair balance between the interests of the child and those of the parent (in particular, to impose proportionate restrictions on parental rights of access), as article 8 requires.

I was not told whether any argument under reference to article 8 had been presented to the sheriff. My impression is that it was not, since he does not mention it in his note and it is not mentioned either in the original grounds of appeal which were lodged by DR's solicitor. It appeared, apparently for the first time, in the amended grounds of appeal which were lodged a fortnight or so before the appeal hearing. In the circumstances, and if my impression is correct, the sheriff can scarcely be criticised for not having considered the argument. Nonetheless, in terms of section 6 of the 1998 Act it was unlawful for him to act in a way which was incompatible with DR's right under article 8, and it is appropriate therefore that I should consider now whether he did so.

It is clear enough from the decision in Johansen v Norway that an interference with a party's right under article 8 to respect for his private and family life may only be justified if it is in accordance with the law, pursues a legitimate aim or aims under article 8(2) and can be regarded as "necessary in a democratic society". The margin of appreciation varies according to the seriousness of the interests at stake. Thus "the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life" (paragraph 64). And measures such as declaring a child free for adoption, with the inevitable loss thereafter to the natural parent of his or her right to apply to the court for an order for contact with the child "should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests" (paragraph 78). But it should be observed that it was not suggested in Johansen v Norway that the effect of article 8 is to place a total ban on such measures, and I do not think that anything that was said by Lord Reed in West Lothian Council v McG would be apt to support the contention that a freeing order may not be made if the particular circumstances of a given case justify this.

It is perhaps instructive to compare the circumstances in Johansen and West Lothian Council v McG with those of the present case. In the former case the child was placed into foster care twelve days after her birth and the decision complained of was taken some four and a half months later, on 3^rd May 1990. During those four and a half months the mother had been having access to the child twice a week for one hour without apparent difficulty. In paragraph
[38] above I have already drawn attention to the continuing relationship between P and D in West Lothian Council v McG, and that was all against a background in which D had spent the first three and a half years of his life in family with his natural mother and P. By contrast, in the present case D was in the care of DR only during the period of seven weeks or so between her birth on 24^th December 1998 and 12^th February 1999 when she was placed in the care of Mr and Mrs K. When the sheriff came to issue his judgement, D had thus been happily in their care for a period of three years and five months or thereby. During that period there had only been limited contact between D and DR. Thus the sheriff's finding that the ground under section 16(2)(c)(ii) of the 1978 Act had been established has not been challenged. The sheriff's finding in this respect is supported in particular by his findings in fact 13 to 16. In the early months of 2001 DR was attending a drug rehabilitation course in Holland, and following her return she appears to have had contact with D on a few occasions only - see pages 117/8, 123, 126, 136, 137, 179, 198, 220/1, 227, 242 and 293 of the notes of evidence. In short, therefore, the circumstances of the present case have been very significantly different from those in Johansen and West Lothian Council v McG.

It is clear in this case that the interference with DR's right under article 8 which is implicit in the making of a freeing order is in accordance with the law, namely the 1978 Act, and pursues an aim which is legitimate under article 8(2), namely the protection of D's health and rights and freedoms. The issue thus comes to be whether an order declaring D free for adoption may be seen as having been necessary in light of the narrow margin of appreciation which the sheriff enjoyed and the strict test which he had to apply as set out in paragraphs 64 and 78 of the judgement in Johansen.

For my part, I am perfectly satisfied that the sheriff's decision was necessary for the reasons stated by him in his note. The blunt facts were that by the time he came to issue his judgement D had been happily in the care of Mr and Mrs K for over three years, there was no realistic prospect that she would be removed from their care and it was high time that a decision should be made which would put an end to the ongoing uncertainty of her future and clear the way for her to be adopted by Mr and Mrs K and so to be given the stability and security of a permanent home with them - see the comments of Lords Prosser and Osborne and Lady Cosgrove in City of Edinburgh Council v B 1999 SCLR 694 at pages 706A/B, 706E and 707A/B respectively.

It may be helpful at this stage to comment briefly on the point that the making of a freeing order will prevent DR in the future applying to the court for an order for contact with D. In theory I dare say that this may be seen as a very grave interference with her right under article 8 to respect for her private and family life. For the reasons already given I am satisfied that the sheriff was justified in permitting this interference. But in any event I am inclined to think that in practice it will not prove to be such a handicap to DR as may have been supposed. In view of the very limited contact that there has been between D and DR, it must be considered doubtful whether a court would be prepared to make an order for contact between them without the willing concurrence of Mr and Mrs K. And if they are willing to concur, the chances are that an agreement in regard to contact between D and DR may be made without the necessity for an application to the court. D already sees her grandmother CG regularly, and Mr and Mrs K have agreed that this contact may continue six times a year. So the link between D and her birth family will remain, and I should not be surprised if, as D gets older, Mr and Mrs K will see that it is in both the child's and their own interests that an attempt might be made to introduce her gradually to her mother DR. But if this does happen, I am quite sure that it would have to be at a pace dictated by the child and Mr and Mrs K, and I do not believe that DR would serve her own interests or those of D by seeking to force the issue by making an application to the court for a contact order. I would expect such an application to be wholly counter-productive in the circumstances, which is why I am not unduly troubled by the thought that, in point of law, DR will in any event be disabled from making such an application in the first place.

Section 6 of the Adoption (Scotland) Act 1978

Counsel for DR submitted next that the sheriff had erred in granting the application in the present case since ACC had applied the wrong test in deciding to proceed with the application in the first place. The correct test was that to be found in section 6 of the 1978 Act. Section 6(1) provides, inter alia, that in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but (a) shall regard the need to safeguard and promote the welfare of the child throughout his life as the paramount consideration ...... Counsel drew attention to the decision in City of Edinburgh Council v W 2002 FamLR 67 and submitted that neither in the adoption agency report which had been submitted to the court nor in the minutes of the decisions which had been taken by the relevant committees of ACC nor in the evidence of their witnesses did it appear that ACC as the adoption agency had applied the correct test under section 6. In the result the application had been made on a wrong basis and accordingly was flawed. Counsel proceeded to examine the adoption agency report, the relevant minutes and the evidence of the three social workers who had been called on behalf of ACC and, in short, his submission was that none of those involved had apparently regarded the need to safeguard and promote the welfare of D throughout her life as the paramount consideration.

In response, the primary submission of counsel for ACC was to the effect that, even if those involved in the social work department of ACC had not applied the test in the exact terms specified in section 6(1)(a), as long as the sheriff had applied the correct test in determining the application before him any error at the outset by ACC was not fatal. In any event, said counsel, in City of Edinburgh Council v W it was clear that in the adoption agency report the wrong test had been applied in that first consideration had been given to the need to safeguard and promote the welfare of the child involved throughout his childhood - see section 6 in its original form before it was amended by section 96 of the Children (Scotland) Act 1995. Likewise the two social workers who had given evidence in that case had used the same, out of date, terminology. In the present case by contrast it could not be said that the wrong test had been applied. It was regrettable that the words found in section 6 in its amended form had not been followed, but this was not fatal. The social workers concerned had indeed considered whether the making of an order to declare D free for adoption would safeguard her long-term interests.

Leaving aside the decision in City of Edinburgh Council v W, I should have thought that it was plain that a failure by an adoption agency to carry out its duty in terms of section 6 of the 1978 Act in deciding whether or not to present an application to the court to declare a child free for adoption would not invalidate the subsequent decision of the court in disposing of the application provided that the court had carried out its duty correctly in terms of section 6. Thus in my opinion it matters not in the present case that ACC and their employees may have applied the wrong test under section 6 (I do not say that they did) in deciding to present the application to free D for adoption. What mattered was that the sheriff himself should have done what he was required to do under the section, and there is no suggestion that he did not do so - and here it is perhaps as well to be reminded that section 6 did not require the sheriff to be "satisfied" that any particular matter was the case (see Grampian Regional Council v R at page 120C). It would perhaps have been a different matter if, for example, DR had applied to the court for a declarator that ACC had failed to apply the correct test in terms of section 6 or had sought damages from ACC for breach of their statutory duty under the section. But neither of these things has happened here.

In City of Edinburgh Council v W the petitioners sought an order to declare a child W free for adoption and to dispense with the parents' agreement on the basis that they were withholding it unreasonably. At the proof the two social workers who had been the signatories of the adoption agency report which had accompanied the original application gave evidence. The report stated that in reaching the decision to recommend that W be freed for adoption the paramount consideration had been the need to safeguard and promote his welfare "throughout his childhood". In evidence both social workers maintained their position that it was this test which had been applied by the petitioners. At the conclusion of the social workers' evidence, but before the close of the petitioners' case (thirteen witnesses having been cited to give evidence on their behalf) it was submitted for the parents that the application was fundamentally flawed on the basis that the petitioners had applied the wrong test. They had considered the welfare of the child throughout his childhood rather than his welfare throughout his life as required in terms of section 6 of the 1978 Act in its amended form. The sheriff sustained the submission and dismissed the application. The petitioners appealed and in due course Sheriff Principal Nicholson refused the appeal. At paragraph [26] of his note he began by saying that he did not consider that, as had been suggested by counsel for the mother, the application was incompetent. He then stated: "The 1978 Act provides a legal foundation for an application for a freeing order; this court plainly has jurisdiction to consider an application in respect of the child in question; and the style of the application, including accompanying documents, is in conformity with what is required under the various rules. To say, as counsel did, that a failure to apply the correct statutory test in support of the application amounts to incompetency is in my view a misunderstanding of the concept of competency". With this I would respectfully agree.

At paragraph [28] of his note the sheriff principal went on to deal with a submission to the effect that, by proceeding on the basis of a test which no longer complied with the law, the petitioners were seeking to interfere with the mother's rights under article 8 of the European Convention on Human Rights in a manner which was not in accordance with the law. The sheriff principal stated: "First, there is the matter of Convention rights, as touched on by counsel in the course of his submissions. I am not persuaded that there was a breach of those rights on the part of the petitioners since the mere raising of this application, albeit founded on the wrong statutory test, did not itself intrude in an invasive way on the parents' right to family life. The child in question was already outwith the parents' control for other reasons, and the order sought by the petitioners was not within their own gift but was dependent on a decision by a court of law". Here again, I would respectfully agree. In the present case the application to free D for adoption did not of itself interfere with DR's rights under article 8. It was simply an invitation to the court to follow a course of action which might, depending upon the circumstances, have been incompatible with DR's rights under article 8.

At paragraph [29] of his note the sheriff principal stated: "What the sheriff had before her in this case was, in the first place, an application which was itself irrelevant in the legal sense in that it did not bear to have been presented on the basis of the correct legal consideration. That in itself might not have been fatal had that error been put right in the course of evidence (my emphasis) but, as I have already indicated, that did not happen and, on the contrary, the error in the written report was compounded by being repeated by both of the witnesses who gave evidence. In the result the sheriff found herself with an application which was itself irrelevant for the reason which I have given and with evidence which not only did not offer any support for an application made by reference to the correct statutory consideration but which indeed bore to support the application by reference to a quite different consideration". I confess that it is not altogether clear to me why the sheriff in that case thought it appropriate to bring the proof to an end without waiting to hear further evidence from the other witnesses who had been cited for the petitioners and any evidence that might be led by the parents of the child and witnesses called on their behalf. It seems to me that it would only have been at that stage that the sheriff would have been in a position to decide whether or not she was in a position to grant the order sought consistently with her duty under section 6 of the 1978 Act as amended to have regard to all the circumstances and, in particular in this context, to regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration. The sheriff principal deals with this question at paragraph [33] of his note and concludes that the sheriff's decision to bring the proof to an end was consistent with the wide discretion which is given to the court of first instance in adoption proceedings.

In the present case the submission that the application was fundamentally flawed by reason of the failure of ACC to apply the correct test under section 6 of the 1978 Act once again does not appear to have featured until the amended grounds of appeal were lodged. So here too I do not think that the sheriff can be criticised for failing to deal with the submission. And in contrast to the circumstances to City of Edinburgh Council v W, the proof was not interrupted so that the sheriff heard evidence not only from ACC's witnesses but also from DR and her witnesses. Thereafter, in my opinion it was a matter for the sheriff to determine the application in light of the whole of the evidence and in accordance with the duty imposed upon him by section 6 and, as I have indicated, it was nothing to the point at that stage that ACC may not have applied the correct test in terms of section 6. It is apparent from his note - see in particular paragraphs [22] to [25] - that the sheriff was well aware of the duty imposed upon him by section 6 as amended and I see no reason to suppose that he did not comply with that duty in reaching his decision in the case in light of the evidence which he heard.

For the sake of completeness, I should perhaps refer also to paragraph [31] of the sheriff principal's note in City of Edinburgh Council v W. He there stated: "Secondly, it is important to bear in mind that the object of the application was not solely to obtain an order declaring the child free for adoption: it was also to obtain a finding that the parents' agreement to adoption was unreasonably withheld. In that connection I consider that there is much force in the submission made by counsel for the parents to the effect that a court would be unable to make such a finding in circumstances where both the application and the evidence in support of it are based upon a consideration which does not accord with the law". In the present case of course there was a separate ground, namely that specified in section 16(2)(c)(ii), which the sheriff found to have been established and which on its own allowed him to proceed to the second stage of deciding whether or not the agreement of DR to the making of an adoption order should be dispensed with in terms of section 18(1)(b) of the 1978 Act.

Proposed amendments to the sheriff's findings in fact

Counsel for DR proposed that a number of amendments should be made to the sheriff's findings in fact. These were as follows:

In finding in fact 11 delete the second sentence and add at the end: "The child is aware that she has a mum and is not living with her natural mother". The second sentence here reads: "The child considers them to be her parents". It seems to me that this last sentence is amply justified by the evidence. But D's understanding of DR's position appears to be confused - see, for example, page 221, and I am not persuaded that it would be appropriate to add the additional sentence proposed by counsel for DR.

Delete finding in fact 12 (which reads: "The child has no sense of attachment to the respondent") and substitute: "The child recognises the respondent and refers to her as "Mummy Diana". Again, I think that the original finding in fact was amply justified by the evidence. I do not think that it would be appropriate to add the proposed new finding in fact. D may refer to DR as "Mummy Diana" on occasions, but it is not clear that she does so consistently or that she fully appreciates who DR is.

Delete finding in fact 14 and substitute: "When the respondent did attend she related well to the child". It was said by counsel for DR that finding in fact 14 was too sweeping in its terms, but I do not agree. Counsel suggested that there was no evidence of any difficulties over contact between DR and D after DR had returned from Holland in the middle of 2001. He also pointed out that DR had given evidence to the effect that she had experienced health problems following the onset of her second pregnancy and that these had prevented her from exercising contact with D. This evidence, said counsel, had not been challenged. It seems to me that finding in fact 14 must be read in the context of the findings in fact as a whole, and in my opinion it is clear enough that it refers, not to the later part of 2001, but to 1999. So I see no reason to delete it. As for the proposed new finding to be substituted here, counsel suggested that the evidence of the social worker Shona Duff supported this. But she was only involved with D and DR between August 1999 and June 2000, so I do not think that it would be appropriate to incorporate a finding in fact in the broad terms proposed on the basis of her limited experience of D. Besides, it seems to me that the expression "related well" is apt to be somewhat misleading.

In finding in fact 17 delete the last sentence and substitute: "Between about January and May 2001 the respondent attended a drug rehabilitation programme in Holland. On her return she regularly attended the contact visits allowed by the children's hearing. She has been free from drugs since August or September 2001. She has no intention of using drugs again. In about May 2001 she became pregnant. She was unwell during said pregnancy and was regularly admitted to hospital. Her pregnancy interfered with her ability to exercise contact".

The second sentence which is sought to be deleted here refers to the period in 2001 when DR was taking steps to address her drug problem. It seems to me to be reasonable that the sheriff should have found that, at that time, DR was "still uncertain as to her future". As for the proposed additions to this finding in fact, the first sentence is in accordance with the evidence. Counsel for ACC also proposed some additions to this particular finding in fact which did not differ significantly from those proposed by counsel for DR. Apart from one sentence, I do not think that it is necessary to incorporate these further additions. The one sentence which I think should be incorporated reads: "In June and July 2001 she returned to using heroin". This accords with the evidence.

I do not think that it is appropriate to include the sentence: "On her return she regularly attended the contact visits allowed by the children's hearing". As already indicated, it is far from clear what contact visits were allowed, and it seems to me that a finding in these terms would give a misleading impression of what actually happened. The remaining sentences proposed by counsel for DR seem to me to be acceptable with the qualification that the sentence: "She has no intention of using drugs again" should be amended to read: "She has stated that she has no intention of using drugs again".

Counsel for DR originally proposed that the whole of finding in fact 32 should be deleted, but at the end of the day I understood him to suggest that, rather than do this, the words "the first half of" should be inserted before "2001". I have no difficulty with this, and it leaves open the question what happened during the later half of 2001.

In finding in fact 38 add at the end: "She has the support of her family. She is likely to be capable of caring for D if returned to her care". I do not have any difficulty with the first of these sentences. Bearing in mind that the child B was only born on 5^th February 2002 and that the sheriff was hearing evidence in May 2002, it seems to me to be going too far at that stage to find in light of the evidence that DR would be likely to be capable of caring for D if she were to be returned to her care.

Add a new finding in fact 39: "The respondent wishes a rehabilitation of the child to her care. She does not wish to surrender her parental rights and responsibilities". I see no difficulty in making a finding in these terms, quantum valeat.

Add a new finding in fact 40: "In the event of the adoption of D by Mr and Mrs K the child will continue to have contact with B". It seems to me that it would be reasonable to make this finding subject to the addition at the end of the words "at least in the short term". What will happen in the longer term seems to me to be rather more speculative.

For the sake of completeness I should record that counsel for DR proposed certain amendments to the sheriff's findings in fact and law and his findings in law. These amendments all followed from the submissions for DR and, in view of my conclusions on these, I do not think that it is necessary to say anything more about these proposed amendments than that I have rejected them all.

Counsel for ACC also proposed some amendments to the findings in fact as follows:

Insert a new finding in fact 12A to read: "Removal of D from the care of Mr and Mrs K is likely to result in a risk of harm, having regard to her close attachment to them". Counsel for DR suggested that a finding in these terms would drive a coach and horses through the sheriff's reasoning and conclusions. In my opinion this proposed finding is ineptly worded and does not do justice to the harm that would be done to D if she were to be removed now from the care of Mr and Mrs K. In the circumstances I have not thought it appropriate to incorporate a finding in these terms.

I have already referred to the amendments to finding in fact 17 proposed by counsel for ACC. She suggested that the first sentence here should be deleted, but I see no need for this since it accords with the evidence. Her final sentence read: "She underwent further treatment thereafter for about one year". The difficulty with this is that DR was still on medication when she gave evidence before the sheriff - see page 333.

In finding in fact 23 add at the beginning: "Prior to presenting the present application the petitioners considered alternatives to adoption, including rehabilitation with the respondent, short-term care and long-term foster care. None of the alternatives was considered apt to meet the needs of the child". Counsel for DR accepted that this amendment should be made subject to the insertion after the word "considered" in the last sentence of the words "by the petitioners to be". I did not understand counsel for ACC to dispute this, and I have amended finding in fact 23 accordingly.

Conclusion

On the whole matter I am satisfied that there are no grounds upon which I could properly interfere with the sheriff's decision to free D for adoption, and I have therefore adhered to his interlocutor of 5^th July 2002 subject to the amendments to the findings in fact to which I have referred.

It was agreed that no expenses should be found due to or by either party whatever the outcome of the appeal.