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Cite as: [2005] ScotSC 34

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Dundee City Council v. McL [2005] ScotSC 34 (16 May 2005)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

FP 04/02 JUDGMENT

SHERIFF RICHARD A. DAVIDSON

In causa

DUNDEE CITY COUNCIL

Petitioners

Against

J and McL Respondents

Act: Evans, Solicitor, Dundee

Alt (1^st. Respondent), Sharpe, Advocate; Price, Robbie & Co., Solicitors, Dundee

(2^nd. Respondent) Simpson, Advocate: W.G. Boyle & Co., Solicitors, Dundee

DUNDEE SHERIFF COURT

JUDGMENT RECORD AND CATEGORISATION SHEET

CASE NAME: DUNDEE CITY COUNCIL V J AND McL

CASE NUMBER: FP 4/02

AUTHOR: SHERIFF RICHARD A DAVIDSON

DATE SIGNED BY AUTHOR; 16^TH. MAY, 2005

DATE RECEIVED BY MRS. CRANSTON

DATE PUBLISHED ON WEB

SHERIFF'S EDITING COMMENTS

Was editing necessary ? Yes

Judgment has been edited as required : Yes.

CATEGORISATION OF JUDGMENT

The judgment should be recorded under the following categories:

Family Law: Human Rights: Adoption : Freeing for Adoption.

FP4/02 Dundee, 16^th. May, 2005. The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

The petitioners are the local authority constituted in terms of the Local Government (Scotland) Act, 1994, for the City of Dundee, and have their principal offices at City Chambers, City Square, Dundee. They are the adoption agency in terms of Section 1(4) of the Adoption (Scotland) Act, 1978 (" the 1978 Act") for the city of Dundee.
The first respondent is J, the natural mother of the child, C, who is the subject of this petition. J resides within Dundee and is 34. She suffers from a learning disability.
The second respondent is McL who is the putative father of C. He resides with J in Dundee. He signed the birth register as father and there is accordingly a presumption in his favour in terms of section 5(1)(b) of the Law Reform (Parent and Child)(Scotland) Act, 1986. He and J entered into a parental rights agreement under Section 4(1) of the Children (Scotland) Act, 1995 ("the 1995 Act") which was registered in the Books of Council and Session on 18^th. July, 2002, on which date he accordingly obtained the parental rights set out in Section 2 of the 1995 Act and became subject to the parental responsibilities set out in Section 1 thereof.
The child C was born on 31^st. March, 2000. She is 5 years of age.
C was the fourth child of J to the fourth different father. She was cohabiting with JH Snr., the father of JH Jnr., her third child, with whom she had been cohabiting for about ten years, up to March, 2000, though during the latter part of that period she had engaged in a sexual relationship with McL including overnight stays with McL.
Also in the "household" with J and JH Snr and JH Jnr were J's two other children, S, a girl aged 14 and P, a boy aged 12.
The children S, P and JH Jnr. had all been victims of inadequate parental care over a long period of time prior to the birth of C. As a result, the petitioner's Social Work Department ("DCCSWD") opened a case on the child C in utero.

At the time of C's birth, J was continuing to cohabit with JH Snr, while spending time in the company of McL. The child C was discharged from hospital into the care of McL who refused to permit C to be with J at the home of JH Snr.
J was frightened of McL who was violent towards her and did nothing to recover the care of C from McL.
McL suffered from an alcohol addiction and was drinking heavily while he had the care of the newborn C.
DCCSWD received anonymous telephone calls expressing concern about the welfare of the newborn C in the care of McL and attempted to make enquiries into arrangements for her care. The children of J had been allocated to a social worker, SR, prior to C's birth and it was SR who tried to carry out these enquiries. She was obstructed in her enquiries by McL who would not co-operate with her while information about a shared caring arrangement proffered by J did not stand up to examination.
J had a significant history of providing her other children with poor quality of care. Her daughter, S, at 2.5, had been admitted to Ninewells Hospital after swallowing some medication which had been in J's handbag. On admission, she was noted to be dirty, unkempt looking and displaying signs of emotional deprivation. This was in 1989. DCCSWD were involved with the family over the next seven years. When J's relationship with JH Snr. broke down on account of her affair with McL, S stopped attending school. DCCSWD were receiving reports from neighbours expressing concern about the welfare of the children. J would not engage with DCCSWD. Her son, P, began truanting from school and was said to be sensitive to criticism from his peers about his dirty and unkempt appearance. J spent a lot of time away from the family home.
DCCSWD were concerned that the newborn C did not appear to have any proper arrangements for her permanent care in place and appeared to be being kept away from her mother, J, who appeared to be too frightened of McL to do anything about it. They were further concerned that McL was drinking to excess while he had care of the baby and would not co-operate with them. They eventually discovered that McL was temporarily residing in the sheltered flat of a disabled lady, Maureen Kennedy, who smoked continuously and who also gave accommodation to a Schedule 1 offender by the name of Norman Young. McL left the child, C, from time to time in the care of Maureen Kennedy. The child's name was accordingly placed on the Child Protection Register on 27^th. April, 2000.
On 19^th. May, 2000, the health visitor whose responsibility it was to provide post natal care to C reported to DCCSWD that the baby had lost five ounces in weight and that McL had been asked to bring C back to the surgery the next day but had failed to do so. The health visitor was anxious about C's welfare.
On 23^rd. May, 2000 out of hours social workers, investigating a report, found C in the care of McL who had been drinking.
On 24^th. May, 2000, the health visitor reported that for the second week running C had failed to gain weight and did not appear to be thriving. DCCSWD were concerned that they could not be certain as to who the main carer for this baby was nor where the child was supposed to be residing. On the same day JF, Senior social worker and SR, social worker went at 17.30 to J's home to try to see the baby, C. The baby was not there. J said C was with McL but that he was bringing her back that evening. JF decided that J should collect the baby so the social workers could see that C was all right. Instead of taking them to McL's address, J took JF and SR to a boarded up tenement at 27 West Street, Dundee where she apparently expected to find McL and C. They were not there. J spoke to McL by telephone and was frightened to disclose that she was in the presence of social workers to him and was frightened to disclose his whereabouts to the social workers.
Two days later, DCCSWD applied for and obtained a child protection order in terms of Section 57 of the 1995 Act. The main reason for the application was that the child had only gained 14 ounces from birth and appeared to be fractious with poor muscle tone and a limp appearance. It was maintained that there was no apparent medical cause for the child's condition and that it was due to neglect. It was alleged in the application that McL had been the main carer, despite his status as putative father only, from the time of the child's discharge from hospital, that he had a history of alcohol abuse and violence towards J, that he had refused to acknowledge his problem and that he reacted by excluding social workers from his home. J was said to have significant learning difficulties, to have taken no active steps to protect the child and to have lied about the whereabouts of the child.
When the Section 57 application came before the Children's Hearing on 30^th. May, in terms of Section 59(4) the Hearing continued the child protection order in force until 7^th. June. No application was made to the sheriff to vary or set aside the order in terms of Section 60(7) of the 1995 Act.
On 31^st. May, 2000, JF, a senior social worker and the direct line manager of SR, social worker to the family, received a telephone call from J in which she denied saying that McL was not the father of the child, but did say that McL wants the child adopted and is claiming that J is not a fit mother.
Between May and October, 2000, C was in foster care organised by DCCSWD. While in such care, she became an alert, happy and bouncy child who thrived and gained weight without difficulty. In the first five weeks in care, C gained 17 ounces.
Despite efforts to teach her the correct method, J was incapable of mixing powdered milk correctly. McL had tried to feed C white chocolate mousse before she was two months old. J was unable to inform social workers how many bottles of formula milk C required daily. Both McL and J were offered the opportunity to take parenting skills classes prior to the initial removal of the child on 26^th. May, 2000 but refused the opportunity. They did attend after her removal but efforts to educate them were hampered by them arguing constantly. They were then offered separate sessions. Maggie Cussick from DCCSWD went to the home of JH Snr. by prior arrangement at 09.00 on 19^th. June, 2001 but could not initially get any response and eventually discovered that the whole family were still in bed, including three school age children. J had no sterilising unit for use in connection with the preparation of milk for the baby and for cleansing bottles and other equipment and the standard of hygiene in the house was poor.
DCCSWD staff were concerned about what appeared to them to be a lack of attachment between C and J. J was considered not to demonstrate any maternal instinct.
McL complained frequently to DCCSWD about J's inadequacies as a mother.
On 7^th. June, 2000 a Children's Hearing issued a place of safety warrant for C in terms of Section 66(1) of the 1995 Act. They also determined to send the grounds of referral to the sheriff for proof. McL and J denied the majority of the grounds of referral. A safeguarder was appointed to C "because there was no co-operation from both parents with agencies involved, also there was a concern as to who the main carer was for C." A place of safety warrant was issued because C was "not thriving in the care of her parents but appears to be doing so with her carer. There was no medical reason given for her not to thrive. Agencies concerned were not sure who was the main carer of C. Concerns also of non co-operation with the social work were an issue." The ground for referral was that set out in Section 52(2)(c) of the 1995 Act, namely that "she is likely(i) to suffer unnecessarily or (ii) be impaired seriously in her health or development due to a lack of parental care." The statement of facts in support of the grounds of referral made reference, inter alia, to a background of failure by J to provide a sufficient standard of care for her three older children, present concerns about poor school attendanceand the children's poor state of personal hygiene and poor hygiene within the family home. JH Jnr. had sustained unexplained injuries to his arms for which medical attention had not been sought. DCCSWD constantly had difficulties contacting J. McL had an alcohol abuse problem and was violent towards J. Attempts to monitor had been thwarted by McL and J moving C around. C's weight gain since discharge from hospital had been erratic and insufficient. McL and J appeared unconcerned about this. McL only agreed reluctantly to the child being weighed by her health visitor. He was seen to be suffering from tremors which appeared to be alcohol related. Once C was taken into care, she put on a significant amount of weight and was found by the foster carer, SS, to be a very easy baby to cope with. There was no appeal taken against the issue of the place of safety warrant.
It appeared that J had spent the night of 18^th/19^th. June with JH Snr. and sharing his bed.
At about the same time, McL obtained the tenancy of a flat in Dens Road, Dundee into which he moved on his own.
McL continued to decline to co-operate with DDCSWD, especially SR, when she sought authorisation from him for medical and SCRO checks.
McL asked DCCSWD to consider him as sole carer for C. However, he made the worker feel uncomfortable when she visited him at home by the nature of discussions which he initiated.
DCCSWD supplied J with a sterilising unit which she managed to lose within weeks.
J claimed that she wished to end her relationships with both JH Snr. and McL. SR arranged for her to be accommodated by Womens Aid who managed to secure a flat for her. Almost immediately, she revealed the address of the flat to McL and was asked to vacate it by Womens Aid. As a result, she was rendered homeless and ended up in the Lily Walker Centre, Ann Street, Dundee, a hostel for homeless people. From there she was given temporary accommodation by Dundee City Council at 86 Honeygreen Road which is a "homeless" flat where there is a degree of local authority support available. However, she spent very little time at either of these addresses and it would appear that she was residing with McL in his Dens Road flat, despite what she had told SR.
SR and her senior, JF, attempted to get J and her three older children accommodated by the NCH Vulnerable Families Unit in St.Mary's, Dundee. This was on the basis that J was again stating that she wished to be parted from McL and be left in peace but with professional support to bring up her children. Unfortunately this application was rejected.
On 30^th. June, 2000 the ground of C's referral to the Children's Hearing was established by virtue of an amended statement of facts being accepted, the ground of referral being that set out in Section 52(2)(c) of the 1995 Act and it being accepted in the statement of facts that historically J had had difficulty in providing a sufficient standard of care for her three older children, that there were concerns about their school attendance and standard of personal hygiene, that there was concern about hygiene levels in the home, that J's son, P, had received injuries for which no adequate explanation had been advanced and which had not received appropriate medical treatment, that J had been difficult to stay in contact with, that McL appeared to have been the main carer for C prior to her being taken into care on a place of safety warrant, that McL had failed to cooperate with DCCSWD, that C's weight gain had been erratic, that C had gained considerable weight since her reception into care, that McL sometimes had trouble handling C as a consequence of tremors induced by alcohol abuse and that on 23^rd. May he had had her in his care when he had been drinking.
Grounds of referral under S. 52 (2)(c) of the 1995 Act were also established in relation to J's children, S and P.
When Ian Stephen and Maggie Cussick, from DCCSWD Beechwood Child and Family Centre attempted to imbue J and McL with parenting skills, they found that both parents lacked the necessary basic skills to care for a baby. Neither knew how to prepare a bottle of formula milk. Neither knew how to operate sterilising equipment. The efforts to teach them were interrupted by constant arguments, mainly initiated by McL, to such an extent that it was decided they should be taught separately. They both became able to care for C in the safe and supervised environment of the Child and Family Centre. Ms. Cussick then attempted to assess them in their respective current home environments, J at 43 St. Boswells Terrace and McL at his flat at 95 Dens Road. J was still in bed when Ms Cussick and JF arrived and there was no baby equipment at the house. J appeared to have forgotten what she had been taught about milk preparation and the use of sterilising equipment. Hygiene in the house was very poor and Ms. Cussick determined that she was not prepared to bring the baby back there. S and P had been sent off to school without breakfast. The furniture was dirty and it was impossible to determine the original colour of the carpets because they were so dirty. The place was poorly lit. The kitchen floor was covered in carrier bags and rubbish. JF's shoe became stuck to food remains which were lying on the carpet. The children appeared to eat while running around. J was warned that all the children would be removed if this state of affairs did not improve. That caused some temporary improvement.
McL, by contrast, appeared to have all the necessary equipment and his flat was clean and tidy. He was appropriately anxious about being watched but coped well with bathing and feeding the child.
A Children's Heaing in Dundee on 19^th. July, 2000 determined that C should be the subject of a named place supervision requirement in terms of Section 70 of the 1995 Act. It was also determined that contact with McL and J would be supervised by DCCSWD. The reasons for the foregoing decisions included that co-operation from the parents remained difficult, C was thriving in care, J did not have a stable address, an assessment had been made of each parent's parenting skills and it had been concluded that neither was capable of giving the child a stable home, J's home was not hygienic, McL had a long history of alcohol abuse and it remained unclear what the true nature of the relationship between McL and J was.
Despite the foregoing background, on 28^th. July, 2000 McL telephoned SR to inform her that he and J were getting a flat together. J confirmed this. SR then set about trying to assist them to obtain a tenancy. As a result of her intervention, J was offered the tenancy of a flat at 4 Gourdie Road, Dundee. However, on 10^th. August, McL was expressing pessimism about the proposed move being successful. He had a further telephone conversation with SR on 11^th. August when she concluded that he was "getting cold feet and looking for excuses not to move in."
By letter dated 4^th. August, 2000, SR wrote to the manager of the homeless unit in Dundee with information supporting an application for a tenancy for McL and J. She briefly explained the background of J's cohabitation with JH Snr., her affair with McL, the arrival of the baby, J's assertion that she wanted to be rid of both men and DCCSWD's efforts to get her accommodated through Women's Aid. She then wrote, "However in recent weeks it has become apparent that J and McL wish to be considered as a couple and take on the care of J's four children. There are no recent indications of violence by McL against J. In fact Social Work would approve of them setting up home together in order to assess their joint capabilities of looking after J's four children who are all at risk of being removed from home, the baby is presently being looked after. There is a lot of evidence from past records that J is unable to parent sufficiently without support. However, there is no doubt that she is a caring parent and that given appropriate help, both through Social Work and from a supportive partner, she could manage to keep her children out of care." The contents of that letter did not accurately reflect the recent history of McL and J and the children.
At a Looked After Child Review Conference on 24^th. August, 2000, attended, amongst others, by J, McL, JF and SR, JF expressed reservations about C returning to the care of J and McL but accepted that others felt they could provide a safe home environment for her. Neither parent demurred from the suggestion that they had received parental training from DCCSWD and the foster carer and should now be able to cope. It was then planned to ask the Children's Hearing to review that named place supervision requirement to allow C to return to the care of J and McL
On 22^nd. September, 2000, SR attended at the home of J where she met McL, J and the children, S and P. McL was complaining of J referring to him as a paedophile and expressed pessimism about the success of the planned rehabilitation.
On 25^th. September, JF received a telephone call from McL complaining about the behaviour of J's son P and that generally J cannot control her children, that she had left her daughter, S, on her own overnight the previous Saturday and that he felt like going back 'on the drink.' J was heard shouting in the background that McL was 'in the pub every night and had never stopped drinking.' She also said that McL had been hitting P. McL said that C should be adopted.
On 26^th. September, J reported that McL was having problems with epilepsy medication and that P had smashed a photograph of C while having one of his "turns."
On 5^th. October, 2000, Ian Stephen, the Manager of Beechwood Child and Family Centre, Dundee, run by DCCSWD, who, along with other members of his staff had been involved in attempting to provide instruction on parenting skills to McL and J reported to SR that McL and J were "not really a couple." Despite this, on 6^th. October, the Children's Hearing, on the basis of information supplied to it by DCCSWD, principally by SR with the approval of JF, varied the supervision requirement from 'named place' to home, allowing McL and J to resume responsibility for the care of C. The reasons recorded by the Children's Hearing for this decision include that "both parents have worked hard to address parenting skills and provide a home for C," and that "social work and family centre support will continue when C returns home."

44. The position of SR and JF at this point was curious. At the time immediately after

C was taken into care, in June 2000, their assessment was that neither J nor McL

had the basic skills to care for a baby. J, on account of her intellectual deficits and

her disinclination to be at home and carry out housework, was not considered able

to cope on her own without support from McL, plus professionals. McL, because

of his addiction to alcohol and unwillingness to co-operate with DCCSWD, was

considered too unreliable to cope on his own. Yet the conclusion was reached that

it was worth permitting them, as a couple, to resume care of C, and that

notwithstanding that McL did not return to live permanently at the family home at

Gourdie Road, Dundee, but maintained his flat in Dens Road. No steps were taken

to carry out any formal assessment of the skills which DCCSWD had tried to

inculcate in J and McL either together or separately. The decision to support the

return of C to J and McL at this stage was incomprehensible. However, it was not

an act of cynicism carried out with the intention of setting up McL and J to fail so

that resort could then be made to a permanent removal of the child from the

natural parents.

On 16^th. October, McL telephoned social work assistant, JB, complaining that J

was disappearing every day leaving him with the care of C. He said he did not

want DCCSWD to continue to be involved.

46. On 19^th. October, Ian Stephen of Beechwood Child and Family Centre telephoned

JB, social work assistant, in the absence of SR on holiday, enquiring who was

taking responsibility of the case in the absence of SR as he required clarification

of the role of the Family Centre in continuing supervision of C and that J had not

brought C to a Mother and Toddlers Group meeting as had been agreed.

47. On 20^th. October Ian Stephen telephoned JB again to report that J had not brought

C to the Mother and Toddlers Group Meeting.

48. On 24^th. October when DCCSWD staff visited 4 Gourdie Road, they formed the

impression that McL was drunk, though not incapable. J told them going to the

Mother and Toddlers Group was 'good.'

49. On 3^rd. November, 2000, staff from the Mother and Toddlers Group telephoned

JB to advise that neither J nor C had been seen that week and that they had now

missed four out of five sessions.

50. On 7^th. November Dundee City Housing Department telephoned SR reporting that

J was not paying her rent for 4 Gourdie Road.

51. On 10^th. November, SR carried out a home visit to 4 Gourdie Road. She found

that P was excluded from school for an assault on another pupil; S was still not

attending school and there was concern about her being involved in an

inappropriate relationship with a bus driver; JH Jnr. was staying with JH Snr and

SR would now support him remaining with his father as "J has shown no

commitment to trying to get JH Jnr. back;" and "the baby seems to have lost the

healthy glow she had whilst with" the foster carer. McL was again complaining

about J calling him a paedophile.

52. On 15^th. November McL telephoned announcing that he and J were separating as J

had left S alone the previous evening while she went to bingo and that she had not

got the children up for school "this morning." He was going to see a solicitor to

try to obtain 'custody' of C. It was evident from what he said that he had not been

residing at the house overnight. Later the same day JH Snr. telephoned looking for

advice as J had been in touch with him saying that she wanted to "come back to

him." On the same day DCCSWD received a telephone call from Margaret Fulke,

Health Visitor, who had visited the house at 4 Gourdie Road that morning. J and

McL were not speaking to each other. J sat with her head down while McL spoke

continuously about himself. C had lost weight and the health visitor was

concerned about "the trend." McL was stating that he would obtain custody of C

and take her to Glasgow. J claimed that McL was drinking all the time. McL was

claiming that J left C with S "or anyone." The health visitor considered that the

atmosphere in the house was having a detrimental effect on C.

Over the next few weeks there continued to be complaints about J not being at home to look after the children, about S continuing to miss school and associate with a bus driver and about the unhygienic conditions in the family home. McL consulted solicitors with a view to seeking a residence order for C.
McL telephoned, on 6^th. December, saying that he had sole care of C and that he had been drinking "because his mother is unwell." He claimed that J was "very dirty" and that C would be better off back with the foster carer. He advised that J sat her in front of the television all day and left her there.
Also on 6^th. December, Margaret Fulke, Health Visitor, telephoned DCCSWD expressing concern that, for the third week running, J had failed to bring C to the clinic for screening.
On 13^th.December, a worker from Barnardos informed SR that McL was in the house 'with a drink in him' but that J was out and that C was being looked after by S and her friend.
On 20^th. December another Barnardos worker telephoned informing DCCSWD that S was complaining that McL was drinking frequently.
On 18^th. January, 2001, DCCSWD Out of Hours Services received a telephone call from McL who had obviously been drinking complaining that J was out of the house and had left C in the care of S.
On 19^th. January, 2001, SR carried out a home visit at 4 Gourdie Road, Dundee. She had gone mainly to discuss P's failure to attend school. J complained that P hit her and that she was thinking of having him 'taken away.' She said he needed to see a 'psychie.' McL then came into the house. He was aggressive and interfered with SR's discussions with P. P however complained that both he and S had been assaulted by McL. He claimed that McL had battered him that morning and had struck him with a snooker cue. There was no sign of injury to him. McL and J both denied that McL had assaulted P. They both called P a liar. S however then confirmed that McL had struck P the previous evening and claimed that McL had kicked her in the groin. She complained about being in pain. She claimed that McL had returned home the previous evening under the influence of drink and that he had assaulted both of them and the police had been involved. At that point SR heard McL leaving the house. J denied any knowledge of McL kicking S. SR expressed concern about her failing to keep her children safe to which she replied indicating that McL had now left, leaving SR with the impression that she meant for good.
On 22^nd. January, JF received a telephone call from McL from 4 Gourdie Road complaining that when he arrived to look after C, none of the other children had got up to go to school and that the house was filthy. SR went to 4 Gourdie Road in the course of the day and found McL under the influence of drink. He was aggressive and shouted at her. He tried to dominate conversation and interfered with SR's efforts to make enquiries. He complained angrily that S and P were the cause of the problems between him and J. SR took S and P into a bedroom and began to give them advice about their personal safety and what to do and who to call if McL became violent. At that point he barged into the room holding C in his arms and a dirty babygro, complaining about J's inability to wash clothing. SR considered his behaviour was threatening and that she should leave. McL pursued her from the house shouting after her.
On 23^rd. January, SR attempted to involve Tayside Police in a child protection enquiry but neither J, S nor P were prepared to be interviewed by them. It was considered, however, that these two children were at risk of physical abuse by McL and that their names should be restored to the Child Protection Register.
On 13^th. February, 2001 a case conference took place attended by, amongst others, SR, JF, J, McL, J's sister, B, P and S. Dr. Dewar, a consultant paediatrician at Ninewells Hospital, Dundee, was also present. The chairman described the purpose of the meeting, to consider whether any of the children's names should be restored to the Child Protection Register on the basis of a report compiled by SR which McL described as 'a load of crap.' He admitted shouting at SR at times but complained that she never listened to him. He further admitted that he had called P a liar and that there were times when he had hit both P and S. He denied battering or kicking or hitting with a snooker cue. He also admitted hitting J in response to her referring to him as a "beast" and a "paedophile." He said that J had alleged that he had interfered with her niece. Asked what effect he thought all this had on P and S, he responded that they were not 'his responsibility.' He asked if social workers had a problem with people drinking and did not dispute that he was regularly drunk. A guidance teacher from Menzieshill High School described continuing problems with P and S at school and that neither J nor McL were co-operating with the school. McL complained about the family health visitor. McL would not accept that the problems with P at school had only originated when he came on the scene. Dr. Dewar expressed concern about McL giving the children the message that it is OK to hit people when you are upset and angry. Everyone acknowledged that hygiene in the family home was poor but McL did not consider that it was appropriate for him to help. The chairman of the meeting, a Social Work Manager, expressed concern about McL's attitude and unwillingness to co-operate with the agencies involved and moved that the names of S, P and C should be placed on the Child Protection Register. P and S were placed on the Register in the primary category of risk of physical abuse and the secondary category of risk of emotional abuse. C was placed in the primary category of being at risk of physical neglect. Further, the meeting resolved to prepare and put in place a child protection plan by 27^th. February.
At 23.35 hours on 27^th. February, DCCSWD Out of Hours Service received a telephone call from McL complaining that J had left him alone with C, without any food or nappies and that he had consumed 1.5 litres of cider. He said that he would take C to his uncle's home.
On 28^th. February a Core Group Meeting took place attended by, amongst others, SR and JF, J, B and P. There was discussion about the telephone call of the previous evening to Out of Hours Services. There was concern about where P was actually residing. There was concern about S's failure to attend at school at all that year and continuing to associate with a bus driver. Arrangements were made to take the children to school and monitor their attendance when there. Various other steps were put in place to assist the family.
While the Core Group Meeting had been taking place, S had been left to look after C. She had taken her out. When she came home late for tea, McL pursued her into her bedroom, banged her head off the wall and kicked her in the groin. S left the house and called the police on her mobile telephone. She was taken to the home of B where she was presently residing. J was spoken to and denied that McL had struck S. Against, this background, and further allegations made that McL was taking C on his own to a house at the weekend where he went drinking and where there were no facilities for a baby, with J's consent, SR, with the approval of JF, decided to seek further child protection orders for S, P and C. The orders were granted by Sheriff R.J. McLeod at Dundee Sheriff Court on 1^st. March, 2001.
On 1^st. March after the order had been granted, social workers and police officers found McL with C at an address in Dundee, a new tenancy which had been allocated to J and McL. The house was sparsely furnished with a mattress on the living room floor and a cot. The order was served on McL and C was removed and placed with foster carers. DCCSWD experienced further difficulties finding where J and P were to implement the child protection orders.
On 5^th. March, 2001, a Children's Hearing continued the child protection orders. They refused to allow McL to have contact with the older children as they did not wish it and there were continuing concerns about his behaviour.
On 6^th. March, 2001, SR met with J and McL and informed them that DCCSWD were 'pessimistic' about the children being returned to them.
On the same day, C was examined by Dr. Dewar who was concerned about her lack of weight gain and who felt that she was not thriving as she should be. She was also concerned about a dry skin condition. P and S were also found to be underweight and P had a chronic chest infection. He also had wax in his ears. He appeared unable to report his age correctly. S had head lice. S was failing to reach her developmental milestones. She was said to have lost height. This was a condition recorded in only 1 child in 250. She was considered not to be eating properly. She had poor dental hygiene and her teeth were in a very poor condition. Her self esteem was very low and her personal hygiene was poor. She was wearing ill-fitting clothes.
A Looked After Child conference was held on 9^th. March, 2001 attended by J, McL, HF, the foster carer for C, B, SR, JF and other members of social work staff who had worked with members of the family. Concerns were expressed that after C had returned to the care of J and McL she had not been brought regularly for appointments with the health visitor, as had been agreed. J had not spent more time in the home as she had agreed she would. The school attendance of the older children had deteriorated. The house which had been decorated and newly furnished had been allowed to become filthy. McL had continued to drink despite claiming he had stopped. He was hitting P and S. McL had taken C to an unfurnished flat where he was drinking despite being solely responsible for her care. Neither McL nor J would accept that they had failed in any material respect. As a result, JF expressed doubt about the point of trying further rehabilitation.
On 12^th. March B, who had the temporary care of S and P, telephoned SR reporting a visit from J when she had been threatening and abusive and that she was no longer prepared to allow J to come to her home.
On 13^th. March a Children's Hearing issued a place of safety warrant in terms of the 1995 Act Section 65(7) for all three children, S, P and C. Among their reasons for doing so was that since moving to B's home, S and P had been attending school, there had been an improvement in P's behaviour at school, C was settled with her foster carer and was gaining weight, J was threatening to remove the children and concerns continued about McL's violence.
On 16^th. March, DCCSWD received a telephone call from a Dundee City Council Housing Officer - Sandra - that she had visited the flat at 4 Gourdie Road, McL and J having by now moved to another council house in Dundee, and found the flat to be filthy. Bedding which was there and had been supplied new the preceding August appeared never to have been washed. It was particularly soiled in S's bedroom. Duvet covers appeared not to have been used. The bedding, bedroom units, the cooker, the living room suite, the coffee table, the electric fire, the carpets and the pots and pans, all of which had been supplied by Dundee City Council, would have to be dumped. The beds were stained. A smoke detector had been removed. Sandra rated the condition of the flat as one of the worst she had seen in five years as a housing officer. When she had visited, she had found McL there, drinking cider from a cup with a bottle at the side of the settee.
At a review meeting on 19^th. April, attended, amongst others, by McL, J, P, S, B, SR, JF and Margaret Fulke, the health visitor, it was noted that C became withdrawn at her foster carers' home, when she saw SR arriving. However, she had settled well and was gaining weight. She slept and ate well. Contact with McL and J had been taking place and that had been reasonably satisfactory. JF said that there were no plans to return C home. An assessment would be undertaken of B to determine if she could be a suitable link carer, being a family member. McL said he would oppose this plan. He was informed by JF that that would result in C being placed permanently with another family. He was also told that he had no understanding of the real needs of a child and that he would not be considered a suitable person to look after C on account of his previous violence to children. It was determined at this meeting that permanence planning should be initiated in respect of C.
The place of safety warrant for all three children was continued by a Children's Hearing on 3^rd. April, 2001. It was noted that McL claimed that he had not been drinking for the past three weeks.
S and P resided with B for about six weeks. During that period, B seemed to have very little to do with C when she was brought for contact with S and P. J also attended these contact sessions and she too appeared to have little to do with C. S was allowed to take C out into the "glass strewn" garden which was considered dangerous. A report was received from the general medical practitioner of B's partner, to the effect that he was not fit to take care of children. B took an overdose of medication. DCCSWD removed the two older children and placed them in foster care. They ceased to assess B as a link carer for any of the children. McL indicated that he would never agree to B being link carer for C and J made efforts, by threatening behaviour and by encouraging S to ignore instructions to stay away from J's home, to undermine the temporary arrangements whereby her children S and P were residing with B.
On 25^th. April, B reported to SR that J had arrived at her home at 00.30 having been brought there by the police after she had been assaulted by McL.
On 23^rd. April a Children's Hearing in Dundee continued the place of safety warrants for S, P and C.
On 4^th. May, 2001, C was moved to reside with HF, foster carer. This related to the previous foster carer being involved in looking after a child with significant health complications which involved regular trips to a London hospital for treatment. C was the only child with HF and her husband. HF reported that C was initially wary of her husband.
McL had insisted in having contact with C separate from J and the other children. This was having the unfortunate effect that C was away from her foster home for four hours at a time. His attendance at contact was erratic.
On 11^th. May amended grounds of referral and statements of facts were established before the sheriff in relation to C. The grounds of referral were Section 52(2)(b) that she was falling into bad associations or is exposed to moral danger and 52(2)(e) that she was a member of the same household as a child in respect of whom any of the offences mentioned in Schedule One to the Criminal Procedure (Scotland) Act, 1995 had been committed. Among the statement of facts no longer disputed were that McL had a history of misusing alcohol, that he had assaulted J in the presence of the children while under the influence of alcohol, that police were called to an incident between McL and J on 27^th. November, 2000 while he was drunk, that on 19^th. January, 2001 he had telephoned police, while under the influence of drink, complaining of J's inability to look after her children, that on 22^nd. January he was drunk and holding C in his arms while verbally abusing SR and that he had physically chastised P and S, especially the latter, on 28^th. February, 2001, when he had kicked her on the leg and hand and pushed her on to a bed, while holding C in his arms and while under the influence of drink, that the family home was untidy, that J had failed to ensure the attendance of S and P at school, that J had permitted McL to have the sole care of C in spite of his history of misusing alcohol, that J had failed to protect the children from exposure to violence and disturbing incidents and that S had stated that she did not want to return home so long as McL lived there. The sheriff also granted a place of safety warrant for all three children pending the determination of the Children's Hearing on what should happen next.
On 16^th. May S and P were also accommodated with different foster carers and removed from B's home.
On 29^th. May, HF telephoned SR complaining that she was frequently being harassed by telephone calls from McL complaining about how she was dressing C.
SR visited C at HF's home. HF reported that C was walking and that she was a very contented and alert child. She was easy to manage.
On 4^th. June, 2001 a Children's Hearing in Dundee determined that C's named place supervision requirement in terms of Section 70 of the 1995 Act should continue. They considered that the children had regularly witnessed scenes of domestic violence and that serious care grounds had been established, that the level of care the children had had at home was inadequate and they had suffered both emotionally and physically. They also determined that "During supervision there is an expectation that the social work department should work with Children 1^st to arrange an assessment of parenting skills in respect of J and McL." The Hearing ordered that an early review take place within a twelve week period for the result of that assessment.
Children 1^st. declined to take on this assessment claiming that they were over-subscribed. Douglas Child and Family Centre, Dundee, were also asked to undertake this assessment but declined. However, Ian Stephen at Beechwood Child and Family Centre agreed to undertake this and arrangements were made for it to commence on 27^th. June. However, Ian Stephen, having met with McL and J, considered that he could not express an opinion that was truly independent given his historical involvement with the family. In the absence of anyone else being prepared to do it, an assessment was carried out by SR and JF.
At a Looked After Child Review on 6^th. July, attended amongst others by SR, HF, J and McL, HF reported that all was well with C's foster care, though she remained wary of strange men. Mrs. Fulke, health visitor, reported that C's weight had increased and that she was now meeting all her milestones. She no longer had a problem with dry skin. C was "boisterous and hyper" on return from contact. SR advised that the comprehensive assessment had been carried out and the recommendation was that rehabilitation should not be pursued. Aberlour Trust staff were to carry out an independent assessment. There was no family member who could be considered as a possible link carer.
J was unable or unwilling to accept advice about the number of people she was bringing to contact sessions having a detrimental effect on C.
McL's response to contact was poor. He arrived late and left early. While there, instead of spending time with C, he chose to raise issues he had with DCCSWD with the care assistants supervising contact. When he was refused permission to bring a friend to a contact session, he did not come himself. He found it hard to sustain interest in C for an hour and would involve her in his confrontations with authority.
J attended contact sessions faithfully but the quality of interaction between her and C was variable. When there were others present, she took a back seat. She seemed to have little idea what to do to stimulate the child and C demonstrated little emotion on her arrival or departure.
C's siblings similarly had difficulty sustaining interest in her during contact periods. Sometimes the other three played with each other to the exclusion of C. Again on C's part there was little demonstration of emotion on their arrival or departure but more than there was with J.
On 10^th. September a Children's Hearing considered the case of C and determined that she should continue to reside with HF on a named place supervision requirement, that contact with her parents should continue to be supervised and that C might have periods of respite care with other carers. This Hearing was informed about the difficulty in obtaining an independent assessment of the parents' parenting skills and appears to have accepted that state of affairs and not pursued the issue. They concluded that as C was thriving in her foster placement she should continue there. There were very few changes in the family's lifestyle which would enable rehabilitation.
On 14^th. September, SR ceased to be responsible social worker for C and C's case was transferred to CC, a social worker who was a member of the permanence team. At a Looked After Child Review meeting of the same date, it was noted that McL had not attended any contact session for the preceding five weeks. JF repeated at that meeting that there would be no further assessments with regard to rehabilitation but that a permanent solution would be sought for C. That was why CC was becoming the case responsible social worker. J said she would oppose plans for permanence. CC explained that her function would be to consider which permanent solution, including adoption, was right for C and that she would be looking for an alternative family. She also confirmed that she would have to consider whether it was in C's interests for contact with her natural family to continue.
Some of the factual assertions made by SR in various reports prepared from time to time principally for the Childrens' Hearing were inaccurate and some of her opinions lacked any proper factual basis. In particular, there was little justification for her opinion that by August, 2000, J and McL were functioning well as a couple or that they had acquired sufficient parenting skills to resume the care of C. There was no justification for her assessment that C could be removed from the Child Protection Register on the hypothesis that there was no significant risk to her if she were returned to McL and J. There was little, if any, justification for her belief that J was not trying to look after the children properly rather than did not have the requisite intellect to understand what the children needed and how to go about providing it. She considered wrongly that J did not have learning difficulties.
On 22^nd. October, 2001, McL and J met with CC who explained to them some of the forms she required to complete in connection with the permanence process and that she would be helped by their co-operation in completing these forms but both declined to co-operate with the permanence process.
CC visited HF at home in connection with the completion of the permanence forms. HF's position was that C was largely unaffected by attendance at contact sessions.
On 7^th. November, CC met again with J who declined to sign permanence forms but gave some information to CC which assisted with the process. There was a discussion about C's best interests wherein J made it clear that she wished C to return to the joint care of McL and herself and that she would never agree to her being adopted. CC considered that J was unable to grasp the issues she was trying to discuss with her.
CC also had some discussion with McL in which he promised to be "your worst nightmare." He appeared more interested in his position than what might be in the best interests of C.
On 15^th. November, HF telephoned CC expressing concern about C's reaction now to contact. She had been unsettled on return during the past few occasions.

100.On 12^th. December, McL telephoned CC complaining, though he had not seen

her, that C's hair had been put in "fuckin' bunches" as he described the situation.

He then shouted and swore at CC about her allegedly emitting confidential

information about him to J's solicitor and about other trivia until she was

compelled to hang up on him.

101.On 17^th. January, 2002, a Children's Hearing in Dundee reviewed C's case,

continued the supervision requirement at HF's home and continued supervised

contact for both parents at the present level despite J's request for more and

DCCSWD's request for a reduction in the level. The Hearing took the view that

the position should remain unchanged pending the decision of the Agency

Decision Maker on C's future.

102.CC completed Form E which is the standard form for a child requiring a

permanent placement. It was considered by CC that adoption was the appropriate

form of placement. It was considered by her that there should be no continuing

contact with her birth parents.

103.SR appeared to have a poor understanding, despite having received training on

the subject, of her relationship and obligations to the Children's Hearing system

and her statutory obligations under the 1995 Act. She could not explain why C's

case had not been referred back to the Reporter prior to the assault on S by McL

when the position had plainly deteriorated rapidly almost from the time at which

C was returned to the family. Her only explanation was that DCCSWD were

working to keep the family together.

104.The Adoption and Fostering Panel of Dundee City Council met on 21^st. February,

2002 to consider the future of C. They decided to recommend that C should be

freed for adoption. That was their unanimous recommendation. At that time it

was the policy of Dundee City Council not to invite birth parents or

their representatives to participate in the hearing before the Panel.

105.Both S and P remain in foster care though S visits McL and J at the family home

on a regular basis including staying overnight. P has regular contact with his

mother but nothing to do with McL. P's personal hygiene has greatly improved

since going into foster care though the position is not the same with S. At times,

both J and McL had tried to undermine the foster placements.

103. The general condition of the house in Dundee now occupied by J

and McL is all right, by contrast with their previous home, at least as at February,

2003,but there are no children living there.

104. Neither McL nor J has ever used direct physical violence upon C.

105. Emotional abuse is a recognised cause of failure to thrive.

106. McL appeared to operate philosophically on the basis that it was not wrong to hit

women occasionally when they required discipline.

107. McL frequently blamed J's children, S and P, for things that went wrong

between him and J.

108. During the period from March, 2001, when C was made the subject of a second

child protection order and was then placed on a named place supervision

requirement again, and placed with the foster carer, HF, McL's commitment to

contact deteriorated. Sometimes he arrived late. Sometimes he left early.

Increasingly, he did not attend at all.

109. The younger a child is, the more important it is to resolve the child's future as

quickly as possible. If rehabilitation is to be attempted, then it is better that that

be done sooner rather than later, for the sake of the child. There are risks in any

attempt at rehabilitation. Where a child has been removed from the family in

circumstances where there have been difficulties about the quality of parenting,

it is not expected that those problems will have wholly disappeared at the outset

of rehabilitation. It is important always to have a care plan for a child in care. In

many cases, the only way forward is to test the water by returning the child and

monitor what develops to avoid disturbing attachments more than necessary.

During the period when she was the case responsible social worker for C, from

birth to September, 2001, SR was responsible case worker in connection with

about fifteen other dysfunctional families. This was the family however which

required the greatest amount of her time and attention.

SR was required to carry out her responsibilities in a setting which was

chronically under-resourced.

JH Jnr. was now living with his father, JH Snr., and was a closed case. S

remained with her foster carer and SR remained her social worker. P remained

with a foster carer and was now doing well at school. He had taken advantage of

the opportunities provided to him by the foster carers in the way of hobbies and

activities, had joined the army cadet force and had in contemplation a career in

the armed forces.

JF was the senior social worker responsible for review of the case load of SR.

Her team were dealing with about 120 cases at any given point in time. She

should have had a team of eight social workers to deal with that case load but

sometimes had to cope with only four.

JF at one stage considered referring J to Adult Support to try to derive a better

understanding of J's intellectual limitations but was advised that there was no

service available for assessment unless the individual suffered from a profound

learning disability. Nonetheless it was evident that J had shortcomings in both

reading and writing skills.

S was made to feel guilty about enjoying being in foster care.
No decision to make application to either the Reporter to the Children's Hearing or to the sheriff under any of the provisions of the 1995 Act would be made by a basic grade social worker without the prior approval of a senior social worker.
It is the belief of some social workers in Dundee that it takes too long for the Children's Hearing system to deal with a Section 53 application in a care and protection case because priority is given to cases in which children are alleged to have committed criminal offences.
McL was always reluctant to make any disclosure to DCCSWD about his background. However, it was never explained to him that DCCSWD would not consider him as a potential sole carer for C without that information. In any event, it was the professional opinion of JF that McL could never be considered as a potentially satisfactory parent on his own on account of his violent disposition, his alcohol abuse and his inherent distrust of social work professionals.
It was not until 28^th. July, 2000 that McL and J made it clear to DCCSWD that they wished to be considered as a couple. Hitherto, J had made application to the NCH Families Project for her and the children to be considered and at the time of making that application it was the professional opinion of JF that acceptance on that scheme represented the "last chance" of keeping J and the children together. As at 28^th. July it would have been more accurate to describe the relationship between J and McL as "unstable" rather than "steady" as was done.
The information given to the review case conference on 24^th. August, 2000 by JF and SR was inaccurate in that when it suggested that McL and J had responded well to parenting classes at Beechwood Child and Family Centre it did not qualify that by saying that J still did not understand the need to sterilise equipment; it did not mention McL's lack of commitment to full time residence at Gourdie Road by maintaining his tenancy at Dens Road; the whereabouts of and intentions in connection with the residence of JH Jnr are not clear; nor was it made clear that McL and J were not actually living as a couple at Gourdie Road at that time.
DCCSWD failed to prepare a detailed support plan in the context of C's return to the care of McL and J.
Had DCCSWD delayed C's return to McL and J and undertaken more work with the parents, it is unlikely that the eventual outcome would have been any different in the sense that sooner or later a permanent solution for C would have been required to be sought.
By November, 2000, there were a number of very clear indicators that C was at risk from continuing to reside with McL and J and should either have been removed by means of a further child protection order or at least have been the subject of an application for a variation of the home supervision requirement. These indicators included evidence from social work staff of McL continuing to drink, the continuing poor school attendance of P and S, J's resumption of her nomadic behaviour, a report that S had been left alone in charge of C, and the observation of a rapid decline in hygiene standards in the house. Most particularly, the health visitor was evincing concern about a return to a situation where C was failing to gain weight in particular and thrive generally. DCCSWD and, in particular, SR and JF, failed to act in any effective manner in response to these clear indicators.
There is no satisfactory explanation, other than pressure of work, for the failure by DCCSWD and SR and JF in particular for not seeking child protection orders in the wake of the assaults on S and P by McL on or about 18^th/19^th. January, 2001.
C resided with the foster carer, HF, between 4^th. May, 2001 until 27^th. May, 2002. She was about the fifteenth child to spend time with HF. Almost all her predecessors had been infants. C did not show overt distress about being moved on from her previous foster carer. She appeared to be wary of unknown males, seeking reassurance from HF when they appeared. She had difficulty with matting eyes and a rash affecting her backside.
HF was unable to develop a working relationship with either J or McL. She gave J her mobile telephone number so she could stay in touch when HF took C for a holiday. McL telephoned complaining about how C was dressed. He did this with unreasonable frequency.
While she resided with HF, C always ate and slept well. She was good natured but with a determined streak. She was however different on days when contact with her parents or siblings was to take place. The problems became more significant the longer C lived with HF. This was particularly true in the period between February and May, 2002. She required considerable reassurance on return from contact, did not eat well, took a long time to get to sleep and woke disturbed in the middle of the night.
AG, a respite foster carer with whom C stayed for a period of about three weeks in November and December, 2001, also noted that C was hard to settle following contact sessions.
HF was aware from the outset of the fostering of C that the intention of DCCSWD was to seek a permanent solution away from her parents for C and she understood that adoption was considered to be the appropriate means of achieving this.
HF was concerned about the slow development of C's speech and brought this to the attention of DCCSWD and the doctor and health visitor involved with her but none of these agencies made any reference for C to speech therapy.
HF observed that food was very important to C and she always seemed to need to know that there was food available. She normally ate quickly and would look for more.
HF was fully supportive of the plan for a permanent solution for C away from her natural parents. There was no indication that C was missing her parents or siblings. On the contrary, the recurring upset was when she was required to have contact with them. As time went on, C came to recognise when it was time for her to go for contact and was increasingly unwilling to attend.
HF contributed her opinion to the Adoption and Fostering Panel which met on 21^st. February, 2002 and which recommended that C should be freed for adoption.
Dr. Dewar, consultant paediatrician, acknowledged, in assessing C for her report for the Adoption and Fostering Panel, that there was a delay in her developing her speech to a level which would be normal for her age.
By March, 2002, it was the considered opinion of HF that continuing contact sessions with J and her siblings were emotionally damaging for C. She urged CC, who, by this time, was C's social worker, to arrange for contact to terminate.
Contact to McL was terminated by a Children's Hearing on 8^th. April, 2002 in the light of his repeated failures to attend at contact sessions.
HF was involved in the process of transferring C to her prospective adoptive parents. She was not involved in the matching process. However, it was her assessment that C took to them really well and by the end of the first week was happy in their presence.
Contact between C, J and P and S was terminated in May, 2002, just before C was placed with her prospective adopters.
J appeared to have little idea what to do with C during contact sessions which generally were held at a DCCSWD Child and Family Centre where there were toys and books available for use. She showed no emotion and gave no particular greeting to C on her arrival and their parting happened without any significant emotional display. C would not kiss J but would turn her cheek and allow J to kiss her. If C became upset during contact she would approach one of the social care assistants and not J for comfort. The lack of indication of affection between mother and child was striking.
The last contact between mother and child took place on 15^th. May, 2002. C had not wanted to leave FHF to go to the contact session. She demonstrated no reaction on first seeing her mother. At the end of the session she became distressed. J picked her up and that caused her to scream and sob. She refused to get into the car seat but cuddled into Maureen Petrie, a social care assistant. J said "Wave goodbye to mum," but C would have nothing to do with her. But as soon as J departed, C calmed down, got into her car seat and returned to HF's home.
While it would be inaccurate to say that DCCSWD had promoted contact between McL and J on the one hand and C on the other during the period between March, 2001 and May, 2002, they did without fail facilitate weekly contact. It was McL and J who did nothing to promote contact despite being given ample opportunity to do so.
DCCSWD's permanence team takes over responsibility for the care of a child where the case responsible social worker and her senior have concluded that they can no longer support efforts to rehabilitate a child in its home setting. Given the specialties involved in effecting a permanent alternative solution it is appropriate to have a team dedicated to that purpose.
CC had a case load of about 7 to 10 children at any given point in time.
Given C's age, it was CC's intention to find a solution which would benefit C for the rest of her life, not just the rest of her childhood. Adoption was therefore the preferred solution.
Neither McL nor J were prepared to co-operate with CC in progressing the process of finding a permanent solution for C.
There was no attachment between C and either of her parents. That was in marked contrast to the position with HF and her husband and two daughters. In the safety of her foster home, C would have lots of eye contact, would be very animated, would smile and attempt to vocalise. She did none of these things during the average contact session.
The decision to terminate contact to J was appealed under S.51 of the 1995 Act to the sheriff but the appeal was unsuccessful.
Since neither McL nor J support the plan for permanence for C, neither can give her emotional permission to move on and make relationships with her new family. Future direct contact with them would be likely to undermine her developing relationships with her prospective adopters.
On 4^th. March, 2002, the Agency Decision Maker accepted the recommendation of the Adoption and Fostering Panel that C should be freed for adoption.
On 4^th. April, 2002, in the absence of consent to the proposal to free C for adoption from McL or J, the Children's Hearing endorsed the decision of the Agency Decision Maker that C should be freed for adoption.
On 18^th. April, 2002, there was a meeting of the Matching Panel of the Adoption and Fostering Agency. McL and J declined to participate in this process.
The prospective adopters were parents of three sons. They showed considerable insight into C's plight and a great deal of understanding about how disturbing it would be to separate C from her foster carer HF and her family. They all worked closely together to ensure the minimum of distress. C is flourishing in the home of the prospective adopters. She is receiving attention on a regular basis from a speech therapist and her vocalisation is much improved. She is gaining weight and height. She is in good health and eats and sleeps well and is fully toilet trained. She is alarmed when CC visits as she associates her with disruption in her life.
Her current prospective adopters want to adopt her if she becomes free for adoption.
An objective hypothetical reasonable parent would recognise that it was contrary to C's interests that she should not be freed for adoption.
C presented to an experienced clinical psychologist, Dr. Valerie Cairns, in May, 2003, as a fragile little girl whose ability to cope with everyday life and in particular with the unexpected is dependent on her being in a calm, stable, supportive, loving environment, which was provided in the home of her prospective adopters. A change would result in regress both emotionally and socially. If she were moved again, she would find it difficult to form a trusting relationship with any adult. There was a deficit in her use of language but her prospective adoptive mother was working hard on this. There was an eighteen month gap between her practical skills and her vocal skills.
The prospective adoptive parents presented to Dr. Cairns as a strong pair with patience and a sense of humour. They were capable of providing mutual support and they had complementary skills.
Planning for the future of children whose birth parents have been unable to meet their needs is an exercise in damage limitation where there are no perfect solutions. Of all the factors affecting the outcome of adoptive placements, the most critical is age. The younger the age, the better the outcome. Being adopted before the age of five increases the chances of success. All the processes which have to be gone through to protect other people's interests are obstructive to the best interests of the child. Where a child cannot be parented by his birth family, the highest priority is to find a suitable substitute family and secure the child's future at the earliest possible stage. The earlier in age that children stop having bad experiences and are moved to circumstances where they have good experiences the better. Being in limbo is a bad experience for a child.
Whether a child maintains direct contact with his birth family is of much less significance than whether a child has the security of a permanent substitute family as quickly as possible.
It would require the most calm, unemotional natural parents to make post-adoptive contact a positive experience for the child, starting from a point where the parents are opposed to the child being freed for adoption. Here the birth parents are opposed to freeing for adoption and contact would be contrary to the interests of the child. It would be dangerous to resume contact. The message to C from any such resumption would be that the carers whom she presently trusts were deliberately returning her to a situation which she found distressing. She would have huge difficulty in understanding why they should do that and it would undermine her trust in them.
It is important that a child retains connections with his family of origin but direct contact is not required to maintain that connection.
C's adverse early experiences now mean that she requires specialist parenting to limit the damage i.e. from parents with special qualities. Security, however that may best be achieved legally, was the most important issue now for C.
There is little importance to the bond between a child's natural mother and the child if the mother is unable to meet the child's needs.
Hoarding food is not a common practice for a two year old child.
EJCF, Solicitor, Dundee was appointed curator ad litem and reporting officer to C in connection with the freeing for adoption in May, 2002. She observed C in the company of her prospective adopters on three separate occasions.
At the time ECJF was carrying out enquiries prior to compiling her reports, there was no indication from either McL or J that they were contemplating entry into a parental rights agreement in terms of Section 4 of the 1995 Act.
Both McL and J made it clear to ECJF that they opposed any plan for C to be adopted.
McL continued to maintain the position that he did not wish any further truck with social workers. He said that he had assaulted two of them in the past and he referred to them as 'bastards.' He said he would not work with social workers.
The fact that she was paid by the local authority had no impact in the impartiality of EJCF in the performance of her assignment as curator ad litem and reporting officer.
Neither on her first birthday on 31^st. March, 2001 nor at Christmas 2001 did J or McL appear for contact with any card or present for C.
C is presently placed with her prospective adoptive parents in terms of a named place supervision requirement under Section 70 of the 1995 Act.
J and McL both continue to oppose the application to free C for adoption.
There was no appeal to the sheriff from the decision of the Children's Hearing in April, 2002, approving the decision of the Agency Decision Maker to recommend that C should be freed for adoption.
At various times McL had attended Tayside Council on Alcohol, Alcoholics Anonymous and his general practitioner who had prescribed Antabuse to help him control his alcohol abuse.
McL has a daughter residing in Aberdeen with whom he has no contact. He also had a second child who died after falling out of a tenement window in Barrhead, Renfrewshire in about 1999. McL was residing in Dundee at the time and had no involvement in the circumstances surrounding the death of this child.
McL suffers from epilepsy and has been warned about the risk of initiating a fit by consuming alcohol.

Finds in fact and law:-

That Dundee Sheriff Court is the authorised court for the purpose of Section 56 of the 1978 Act being one of the courts of the sheriffdom in which the child is.
Dundee City Council, the petitioners, being an authorised adoption agency, are entitled to make this application under Section 18 of the 1978 Act.
J, being the mother of the child and, accordingly, a parent for the purposes of Section 18 of the 1978 Act, must either consent to the child C being freed for adoption or grounds for dispensing with her consent must exist.
McL, having had parental rights and responsibilities conferred upon him by virtue of an agreement in terms of Section 4 of the 1995 Act registered in the Books of Council and Session on 18^th. July, 2002, is entitled to be treated from that date as a parent of the child C (see Section 65 of the 1978 Act, as amended) and thus must either consent to the child being freed for adoption or grounds for dispensing with his consent must exist.
The child C having been placed with prospective adopters, it would be competent if otherwise appropriate to dispense with the consent of the parents to the child being freed for adoption.
Neither McL nor J have been prepared to consent to C being freed for adoption and she can only be freed if grounds for dispensing with each of their consents is established.
In the circumstances of the present case, no reasonable parent properly considering the interests of the child objectively, having regard to the shortcomings of the actual natural parents, would withhold agreement to C being freed for adoption and accordingly the consent of both parents could be dispensed with.
Viewed objectively, J, the mother of the child, has persistently failed, without reasonable cause, to fulfil the parental responsibility in relation to the child C of safeguarding and promoting her health, development and welfare and her consent to the child C being freed for adoption could be dispensed with on this basis also.
Having regard to all the circumstances but regarding the need to safeguard and promote the welfare of the child throughout her life as the paramount consideration and having regard to the views of the child so far as she has by her actions been able to demonstrate them and to her religious persuasion, racial origin and cultural and linguistic background, there is no doubt that her best interests would be served throughout her life by her being freed for adoption.

Finds in law:-

That this court has jurisdiction to adjudicate upon this petition for adoption;
That the child has been placed for adoption;
That J, the mother of the child C, is unreasonably withholding agreement to the child being freed for adoption;
That J, the mother of the child C, has persistently failed, without reasonable cause to fulfil the parental responsibility of safeguarding and promoting the child's health, development and welfare;
That it is reasonable in the exercise of discretion, having regard to the best interests of the child throughout her life, her religious persuasion, her racial origin, her cultural and linguistic background, and all the other relevant circumstances, to grant an order dispensing with the need for J to consent to C being freed for adoption;
That McL, the father of the child C, is unreasonably withholding agreement to the child being freed for adoption;
That it is reasonable in the exercise of discretion, having regard to the best interests of the child throughout her life, her religious persuasion, her racial origin, her cultural and linguistic background, and all the other relevant circumstances, to grant an order dispensing with the need for McL to consent to C being freed for adoption;
That, accordingly, it would be better for the child to make an order in terms of Section 18(1) of the 1978 Act than not to do so; and
That compulsory measures of supervision are no longer necessary in respect of the child C and accordingly the existing supervision requirement in terms of Section 70 of the 1995 Act can be recalled.

Accordingly, grants the crave of the petition; dispenses with the need for the agreement of J or McL to the child C being freed for adoption; recalls the supervision requirement under Section 70 of the 1995 Act in respect of the child C; reserves meantime all questions pertaining to the expenses of the cause and assigns

as a diet for a hearing on expenses.

NOTE

Statutory provisions referred to:

Adoption (Scotland) Act, 1978, as amended:-

"6(1) Without prejudice to sections 12(8) and 18(8), in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but-

shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration; and
shall have regard so far as practicable-

to his views (if he wishes to express them) taking account of his age and maturity; and
to his religious persuasion, racial origin and cultural and linguistic background.

12.(6) An adoption order may contain such terms and conditions as the court

thinks fit.

16.(1) An adoption order shall not be made unless -

the child is free for adoption by virtue of an order made

in Scotland under Section 18........................

in the case of each parent or guardian of the child the court is satisfied

that-

he freely, and with full understanding of what is involved, agrees unconditionally to the making of an adoption order (whether or not he knows the identity of the applicants), or
his agreement to the making of the adoption order should be dispensed with on a ground specified in sub-section (2)

(2) The grounds mentioned in subsection (1)(b)(ii) are, that the parent or

guardian-

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

(b)is withholding agreement unreasonably;

has persistently failed, without reasonable cause, to fulfil one or other of the following parental responsibilities in relation to the child-

the responsibility to safeguard and promote the child's health, development and welfare.

18.(1) 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-

he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or
his agreement to the making of an adoption order should be dispensed with on a ground specified in section 16(2),

the court shall, subject to subsection (8), make an order declaring the child free for adoption.

No application shall be made under subsection (1) unless.....

the adoption agency is applying for dispensation under subsection (1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the adoption agency.

No agreement required under subsection (1)(a) shall be dispensed with under subsection (1)(b) unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.
....................
On the making of an order under this section, the parental responsibilities and parental rights in relation to the child are transferred to the adoption agency.

(9) Where a court making an order under this section in relation to a child

who is subject to a supervision requirement is satisfied that, in

consequence of its doing so, compulsory measures of supervision in

respect of the child are no longer necessary, it may determine that the

child shall forthwith cease to be subject to that requirement.

24.(3) In considering whether to make an adoption order or an order under

Section 18(1), the court shall regard the welfare of the child concerned as

its paramount consideration and shall not make the order in question

unless it considers that it would be better for the child that it should do so

than that it should not.

56. (1) In this Act, "authorised court," as respects an application for an

order relating to a child, shall be construed as follows.

(2) Subject to subsection (5) if the child is in Scotland when the application is

made, the following are the authorised courts-

the Court of Session;
the sheriff court of the sheriffdom within which the child is.

58. (1) For the purposes of any application for an adoption order or an order

freeing a child for adoption........rules shall provide for the appointment

in such cases as are prescribed-

of a person to act as curator ad litem of the child upon the hearing of the application, with the duty of safeguarding the interests of the child in the prescribed manner;
of a person to act as reporting officer for the purpose of witnessing agreements to adoption and performing such other duties as the rules may prescribe.

65 (1) .......................

"parent" means, irrespective of whether or not they are, or have been,

married to each other-

the mother of the child, where she has parental responsibilities or parental rights in relation to him;
the father of the child where he has such responsibilities or rights; and
both of his parents, where both have such responsibilities or rights.

"parental responsibilities" and "parental rights" have the meanings respectively given by sections 1(3) and 2(4) of the Children (Scotland) Act, 1995.

"supervision requirement" has the same meaning as in Part II of the Children (Scotland) Act, 1995."

Civil Evidence (Scotland) Act, 1988

"2. (1) In any civil proceedings-

evidence shall not be excluded solely on the ground that it is hearsay;
a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible; and
the court......if satisfied that any fact has been established by evidence in those proceedings, shall be entitled to find that fact proved by the evidence notwithstanding that the evidence is hearsay."

Children (Scotland) Act, 1995.

"3(1)(b) without prejudice to any arrangements which may be made under

subsection (5) below and subject to any agreement which may be

made under section 4 of this Act, his father has such (parental)

responsibilities and rights in relation to him only if married to the

mother at the time of the child's conception or subsequently.

4(1) Where a child's mother has not been deprived of some or all of the

parental responsibilities and parental rights in relation to him and,

by virtue of subsection (1)(b) of section 3 of this Act, his father has

no parental responsibilities or parental rights in relation to him, the

father and mother, whatever age they may be, may by agreement

provide that, as from the appropriate date, the father shall have the

parental responsibilities and the parental rights which (in the

absence of any order under section 11 of this Act affecting those

responsibilities and rights) he would have if married to the mother.

(2) No agreement under subsection (1) shall have effect unless-

(a)in a form prescribed by the Secretary of State; and

(b)registered in the Books of Council and Session while the mother

still has the parental responsibilities and rights which she had

when the agreement was made.

The date on which such registration as is mentioned in subsection (2)(b) above takes place shall be the "appropriate date" for the purposes of subsection (1) above.

(4)An agreement which has effect by virtue of subsection (2) above

shall, subject only to section 11(11) of this Act, be irrevocable.

51. (1) Subject to subsection (15) below, a child or a relevant person (or

relevant persons) or both (or all) -

may, within a period of three weeks beginning with the date of

any decision of a children's hearing, appeal to the sheriff

against that decision; and

(b) where such an appeal is made, shall be heard by the sheriff.

53. (1) Where information is received by a local authority which suggests

that compulsory measures of supervision may be necessary in

respect of a child, they shall -

cause inquiries to be made into the case unless they are

satisfied that such inquiries are unnecessary; and

if it appears to them after such inquiries, or after being satisfied that such inquiries are unnecessary, that such measures may be required in respect of the child, give to the Principal Reporter such information about the child as they have been able to discover.

56. (6) Where it appears to the Principal Reporter that compulsory

measures of supervision are necessary in respect of the child, he

shall arrange a children's hearing to which he shall refer the case

for consideration and determination.

57. (2) Without prejudice to subsection (1) above, where the sheriff on an

application by the local authority is satisfied-

that they have reasonable grounds to suspect that a child is

being or will be so treated (or neglected) that he is suffering or

will suffer significant harm;

that they are making or causing to be made enquiries to allow

them to decide whether they should take any action to

safeguard the welfare of the child; and

that those enquiries are being frustrated by access to the child

being unreasonably denied, the authority having reasonable

cause to believe that such access is required as a matter of

urgency,

he may make a child protection order.

69. (1) Where the grounds of referral of the child's case stated by the

Principal Reporter are accepted or are established in accordance

with section 68 or 85 of this Act, the children's hearing shall

consider those grounds, any report obtained under section 56(7)

and any other relevant information available to them and shall-

continue the case to a subsequent hearing in accordance with

subsection (2) below;

discharge the referral of the case in accordance with

subsection (12) below; or

70. (1) Where the children's hearing to whom a child's case has been

referred under section 65(1) of this Act are satisfied that

compulsory measures of supervision are necessary in respect of

the child they may make a requirement under this section (to be

known as a "supervision requirement")

(7) A children's hearing who make a supervision requirement

may determine that the requirement shall be reviewed at such time during the duration of the requirement as they determine.

73. (1) No child shall continue to be subject to a supervision requirement

for any period longer than is necessary in the interests of

promoting or safeguarding his welfare.

(3) A relevant local authority shall refer the case of a child who is

subject to a supervision requirement to the Principal Reporter

where they are satisfied that -

the requirement in respect of the child ought to cease to have

effect or be varied;

a condition contained in the requirement is not being complied

with; or

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

4. Human Rights Act, 1998.

"6(1) It is unlawful for a public authority to act in a way which is incompatible

with a Convention right.

Subsection (1) does not apply to an act if-

as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Schedule One - Art. 6:

In the determination of his civil rights and obligations......everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require.....

Art. 8:

Everyone has the right to respect for his private and family life, his home and his correspondence.
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 or freedoms of others."

Statutory Instruments referred to:-

1. The Adoption Agencies (Scotland) Regulations, 1996; SI 1996/3260 esp. Reg 2, 7, 8, 9, 11, 12, 13, 14, 15, 18 and 22.

List of authorities referred to:-

AB, Petitioner 1973 SLT (Sh.Ct.) 49

A v B & C. 1971 SC (HL) 129.

Anderson v Sweden 1992 14 EHRR 615

Angus Council v C 2000 SLT 761

Ashingdane v United Kingdom 1985 7EHRR 528

B v C 1996 SLT 1370

Benson v The Netherlands 1985 EHRR 1

C v Miller 2003 SLT 1379

Central Regional Council v M 1991 SCLR 300

City of Edinburgh Council v D 2001 SLT 135

City of Edinburgh Council v MH and MH unreported, Sheriff A.M. Bell, Edinburgh, 23^rd. June, 2000.

City of Edinburgh Council v S 2000 SLT (Sh. Ct.) 147

D v F 1994 SCLR 417

Delcourt v Belgium 1971 EHRR 355

Dewoor v Belgium 1980 2 EHRR 439

Dundee City Council v JE & Anr. unreported, Sheriff I Dunbar, Dundee, 20^th. January, 2003.

Dundee City Council v M 2004 SLT 640

G v M 1999 SC 439.

Georgiadis v Greece 24 EHRR 606

Glaser v Glaser 1997 SLT 45

Golder v United Kingdom 1975 1 EHRR 524.

H v Belgium 1987 10 EHRR 339

H v Stark unreported, Edinburgh Sheriff Court, 16^th. April, 1999.

Hamar v France 1996 23 EHRR 1

In re D [1973] Fam. 209

J and J v C's Tutors 1948 SC 636

Johansen v Norway 1996 23 EHRR 33.

K and T v Finland 31 EHRR 18

Lothian Regional Council v A 1992 SLT 858

McMichael v United Kingdom 1995 20 EHRR 205

McVinnie v McVinnie 1995 SLT (Sh. Ct.) 81

Morieda de Avezedo v Portugal 1990 13 EHRR 721

Muyldermans v Belgium 1991 15EHRR 204

Neumeister v Austria 1968 1 EHRR 91

Olson v Sweden (No.2) 1992 17 EHRR 134

P v Lothian Regional Council 1998 SLT 739

Parbera, Mesague y Jabardo v Spain 1988 11 EHRR 360

Petition of AB & CD to adopt X and Y 1990 SCLR 809

Poitrimol v France 1993 18 EHRR 130

RG & RAG v FM 1999 SC 439

Rieme v Sweden 1993 16 EHRR 155

Societe Levage Prestations v France 1996 24 EHRR 351

T, Petitoner 1997 SLT 724

W v UK 1987 10 EHRR 29

West Lothian Council v M 2002 SLT 1155.

Text Book References:

1. Sheriff Court Practice : I.D. Macphail QC : Chapter 28 : 2^nd. edition.

2. The Law of Parent and Child in Scotland : Wilkinson & Norrie : 2^nd. edition: esp.

pp.146-152

3. A Practical Guide to Human Rights in Scotland : Reed & Murdoch : pp181-182.

4. Adoption of Children in Scotland : Sheriff P.G.B. MacNeill QC : p. 127

NOTE

Introduction:

I regret the very considerable time which has elapsed since final submissions were completed in this case prior to the issue of this judgment. I consider it also to be a matter of very considerable regret and to reflect a completely unsatisfactory state of affairs that we are now approaching the second anniversary of the first day of evidence in the hearing. It is fair to say that I have continuously pressed the Sheriff Clerk Service in Dundee to find me writing time for this case and it is fair to say that they have made the best efforts they can to accommodate me but there is not a great deal they can do if there are no substitute sheriffs available to take on the day to day running of the court. The difficulties in compiling a judgment in a case of this length are compounded by constant interruptions. One of the judgments to which I was referred - inevitably at the end of the hearing - was Lothian Regional Council v A 1992 SLT 858. In that case the then Lord President (Hope) said in relation to what he described as "extraordinary and unprecedented delays" that the sheriff should have been warned of the pace at which matters were likely to proceed to enable him "to make special arrangements which were so clearly necessary for the conduct of this proof....With the benefit of that information, arrangements can and should be made for the sheriff to be released from other duties so that he can give priority to the case without interruption and until it has been completed by the issuing of his interlocutor. Special arrangements of that kind are clearly necessary if the sheriff is to maintain the continuity of thought throughout the proceedings which is so necessary to a proper disposal of the case." Despite the lapse of over twelve years since that injunction was issued, it remains impossible to effect due to the inadequate provision of floating or part-time sheriffs to accomplish what is so patently desirable.

In this case I heard evidence and submissions on 25 days commencing on 16^th. June, 2003 and concluding on 21^st. June, 2004. Part of that delay was occasioned by waiting for the decision of the Inner House of the Court of Session in Dundee City Council v M 2004 SLT 640 which decision was ultimately issued on 27^th. February, 2004, because human rights issues which had been therein canvasses were again canvassed in the present case, whereafter it took until June to get all the parties back together again to complete their submissions in the light of its contents.

The petitioners, Dundee City Council, in their statutory role as an adoption agency, enrolled a petition before this court for an order in relation to a child, C, that she should be declared free for adoption. In relation to the child's mother, J, the bases upon which dispensation with her consent was sought were (a) that she was withholding consent unreasonably (b) that she had persistently failed without reasonable cause to fulfil her responsibility to safeguard and promote the child's health, development and welfare and (c) that she had seriously ill-treated the child, whose reintegration into the same household as her was, because of the serious ill treatment, unlikely, these being three of the bases for dispensing with consent set out in Section 16(2) of the 1978 Act which provision is invoked in relation to freeing for adoption by the provisions of Section 18(1)(b), these bases for dispensing with consent applying also to straightforward adoption petitions. In relation to the father of the child, McL, similarly his consent is sought to be dispensed with on the same three bases. However, in one of the cases to which I was referred, West Lothian Council v M 2002 SLT 1155, Lord Justice Clerk Gill at paras.[36] to [40] makes the point very clearly and, in my respectful opinion, incontrovertibly, which is why I have not considered there to be any merit in wasting further time by recalling the representatives to deal with the issue which was not raised in argument before me, that a man who has never been married to the mother of the child does not have any parental responsibilities and therefore cannot fail to fulfil the parental responsibility to safeguard and promote the health, development or welfare of the child when that responsibility is not incumbent upon him. Of course, in the present case, McL and J entered into a parental rights and responsibilities agreement in terms of Section 4 of the 1995 Act, whereby he acquired such rights and responsibilities on the agreement being registered in the Books of Council and Session which took place on 18^th. July, 2002. By that date, McL and J had known for over a year that the petitioners planned a permanent substitute care solution for the child C. McL's contact to C was terminated by a Children's Hearing on 8^th. April, 2002, a decision he did not appeal, and so it is difficult to understand what motive McL and J had for entering into the parental rights and responsibilities agreement other than to thwart the plan for permanency. Certainly no other motive was advanced in the course of the hearing. The upshot of his doing so is that it means that his consent must either be given or dispensed with before an order for freeing for adoption can be made. He does not consent. Since at no time when he had any responsibility, using that word in the pragmatic sense, for the welfare of the child did he have any legal parental responsibility vested in him, he cannot have failed to fulfil such responsibility and I cannot therefore dispense with his consent on that basis, notwithstanding his heavy degree of responsibility in real terms for the circumstances in which Dundee City Council have been obliged to seek a permanent alternative solution for the care and welfare of C.

The Witnesses:

In support of the craves of the petition, the petitioners led evidence from SR, the case responsible social worker for much of the relevant period under consideration for the child C and at all relevant times, as I understood her evidence, the case responsible social worker for J's other children, S, P and JH Jnr. Each of these four children had different fathers. There appeared to have been social work involvement with the children S and P on account of concerns not dissimilar to those arising in the case of C including poor hygiene in the home setting, the children themselves being dirty and unkempt, poor school attendance and on at least one occasion the child S having believed to have ingested some form of medication requiring medical intervention. There was, however, a long period during which J lived with JH Snr, the father of JH Jnr, together with S and P, during which there was either no or only minimal social work involvement though how well these children were ever cared for is debatable. Things inevitably changed for the worse when J formed a new sexual relationship with McL while still residing in family with JH Snr. The care of the three older children rapidly deteriorated as did their school attendance and the education authorities alerted the petitioners to their concerns about the welfare of these children leading to the appointment of SR to them while J was pregnant to McL, apparently, with C.

I had considerable difficulty with the evidence of SR but ultimately have come to the conclusion that she should be regarded generally as credible and reliable. I am afraid that I found some of her actions and inactions very hard to comprehend and some of the evidence she offered in support downright unconvincing but at the end of the day my overall impression is of a hard pressed and under-resourced social worker doing her best to maintain the stability of a substantial number of dysfunctional families, including this one, and having to take decisions rapidly and on the hoof which look insupportable with the dubious benefit of hindsight but which, for a variety of reasons, she probably genuinely felt were correct at the time, though hindsight has demonstrated that they were palpably wrong.

The second witness was JF, a former senior social worker who is no longer with the department. From her safe refuge of alternative employment, she felt able to blame all the social work department's failures, which she seemed to me to readily accept were failures, on inadequate resources. She was an intelligent and articulate witness whose evidence at the end of the day was somewhat disappointing and at times of dubious credibility. While there is some recorded material in which she expressed doubts about the propriety of the decision to return C to the care of McL and J, I was left with the distinct impression that these doubts were all too rapidly set aside in the name of expediency and that, while I accept that she too was hard pressed and over burdened by the responsibilities heaped upon her, she could have done more to support SR and look more critically, in the constructive sense, at the decisions she was making and the direction in which she seemed determined to go despite all the contrary signs.

The third witness for the petitioners was HF, a foster carer, with whose family C resided from May, 2001 for about a year until she was placed with her present prospective adoptive parents. HF was a lovely, honest, decent, caring lady whose concern for the welfare of C outshone that of any professional involved with her. Insofar as there were some minor inconsistencies in her evidence these were caused by no more than the passage of time since she was responsible for C's care. I regard her as a very important witness in this case.

The fourth witness was CC, a social worker with the petitioner's permanence team who was clear, honest, articulate and consistent throughout her evidence and presented a sharp contrast to her two earlier colleagues. She too is an important and entirely credible and reliable witness. The import of her evidence, which I accept, was that McL, C's father, had ceased to demonstrate any continuing willingness to attend for contact with his daughter and that while J attended faithfully, the continuing contact was increasingly causing distress to the child, who was unsettled by that contact, and that it was necessary in the interests of the child to terminate that contact. I find it very hard to conceive of circumstances in which, against a background of a social work department properly having come to the conclusion that a permanence solution must be sought for a given child, there would be any merit in continuing contact between the child and the parent where the parent remains opposed to the permanent alternative solution proposed.

The next witness led by the petitioners was Dr. Valerie Cairns, a chartered clinical psychologist, by whose evidence I was also impressed and as well as being entirely credible and reliable, gave evidence the contents of which, in my respectful opinion, contained a few simple home truths about how to protect the welfare of children which many professionals in the field would benefit from being reminded of. I regarded her as a very important witness.

The last witness called to give evidence by the petitioners was Mrs. Ellenore Foulis, Solicitor, Dundee who had been appointed by the court as curator-ad-litem and reporting officer in this case and whose reports were available to the court. I always regard it as unfortunate and to be avoided that persons appointed as officers of the court should be called, almost routinely, to give evidence when the simple truth is that Mrs. Foulis could not add much to the terms of her reports, which reports were entirely clear and straightforward in their terms and contained clear recommendations. For the avoidance of doubt, however, Mrs. Foulis's evidence was entirely credible and reliable and in its reflecting the material contained in her reports is again evidence of crucial importance to the outcome of this case. Again, its tenor was that the child was settled with the prospective adoptive parents, that the relationship between the child and her prospective adoptive family was a strong and caring one and that the parents were particularly sensitive to the difficulties C had had to endure in the course of her short life. There was a strong recommendation that C should be freed for adoption.

The local authority petitioners, in addition, lodged some three affidavits and some 287 other productions. There was also a lengthy Joint Minute of Admissions dealing with most of the formal evidence in the case and agreeing what constituted the records of the petitioners' social work department and in relation to the record of proceedings before the children's hearing.

J gave evidence on her own behalf and presented as being what she is, a person of limited intelligence and limited understanding of the needs of the child. In many significant areas of questioning, she could not remember what had occurred. She was dismissive of suggestions of failure on her part and of the requirements of the social work staff involved with her to improve her performance. I feel considerable sorrow and pity for her but she left me in little doubt that she simply does not have the capacity to conduct herself effectively as a parent and I was left in no doubt that it would not be in C's interests to be returned again to her care.

Evidence was also led by Mr. Sharpe from Jean Bennett, a social work assistant, and from Lynn Cameron, a senior social worker, who, at the material time was the Senior Social Work Officer in charge of adoption and fostering and therefore responsible for the operation of the Adoption and Fostering Panel of Dundee City Council, which was the reason she had been cited. Mrs. Bennett had supervised a significant number of the contact sessions where C had contact with her parents and her siblings. Mrs. Bennett was entirely credible and reliable, as was Mrs. Cameron, who was straightforward in acknowledging that there had been some deficiencies in the operation of the local authority and that there was a need for reflection about some aspects of the performance of the social work department.

Finally, McL, the second respondent, gave evidence. I do not mean to be unnecessarily uncharitable but his demeanour was that of a person with an alcohol abuse problem and his ability to respond logically to questions was affected, presumably by the cumulative effect of alcohol consumption over a long period of time. I do not think he set out to lie deliberately throughout his evidence but I do not think he told me anything like the whole truth and he had a tendency to minimise his responsibility for anything that went wrong. I am afraid that, like the first respondent, he left me with the very clear impression that he could not be relied upon to care for his daughter effectively.

The General Background:

J was aged 34 at the time she gave her evidence. She told me that she had not worked since she was 18 so she had no real experience outwith a domestic setting. It appears that all she ever did by way of work was attend YTS schemes. As I have already said, she had four children to four different fathers, first a girl, now aged 18, then a boy, now aged 16, then another boy now aged 13 and finally C, the subject of this process, who is now 5. She first became pregnant when she was 17. She had been a pupil at Fairmuir School. The social work department did not appear to have been able to obtain any record of need in relation to J but the evidence was, and it is within local judicial knowledge, that Fairmuir School was a non-mainstream educational facility for children with learning difficulties. It is a matter of some concern to me that no real effort was made by the social work department to get proper insight into the level of J's intellectual difficulties, which led for example to a difference of opinion in the evidence given to the court between SR, whose opinion was that J had the ability to learn and use basic parenting skills but could not be bothered to do so and JF whose opinion was that J's intellectual deficits were such that she did not have the capacity to learn even basic skills. I accept that there was evidence from JF of making enquiry about an assessment of J's intellectual level and being told that no service existed to achieve that, but I do not accept that. The local authority could have engaged the services of a psychologist of some type who would have been able to give a reasonable indication of the level at which J was functioning. I have come to the conclusion on the balance of probability that the opinion of JF is nearer the mark and that J was inherently incapable of learning sufficient basic parenting skills to be able to care for a child without, by omission rather than act, putting that child's welfare at risk. If that had been effectively explored at the outset by the social work department, then they would have learned that there was no merit in pursuing a policy of attempting rehabilitation of the child with J and would not have exposed the child to the risks she was exposed to during the period of rehabilitation. Had J declined to co-operate with assessment of her intellectual capacity, then the department should have assumed she was inherently incapable and let her demonstrate the contrary rather than put the child at risk. They did not.

J seemed to enjoy a period of relative stability when she was cohabiting with JH Snr, the father of her third child, JH Jnr. He did not give evidence, though it would have been interesting to hear from him, but in the light of the conclusion expressed immediately above, I am driven to presume that he had mechanisms which enabled him and J to cope with the children. I do not understand there to have been significant social work involvement with that family unit, at least during the bulk of its currency, though there had been some social work involvement with J's oldest child, her daughter, S, when she was 2.5 years old, and had swallowed anti-depressant tablets. That child was then assessed as being dirty, unkempt, emotionally deprived and developmentally delayed. In August, 1988, she had been admitted to hospital with a broken wrist and concern was expressed at the time about the lack of any satisfactory explanation for this.

The second of her children, P, child of a man to whom J had been married for eighteen months prior to divorce, had also been admitted to hospital when he was about 18 months old. There was no formal diagnosis made, but he was noted to be grubby and suffering from developmental delay. By November, 1990, he was recorded as being dirty, scrawny and unkempt. J was noted as having a history of failure to maintain paediatric appointments. P was underweight and there appeared to be no organic cause to explain this. He was admitted to Ninewells Hospital, Dundee, aged 4, still drinking from a baby's bottle and still wearing nappies. He was recorded as appearing to be under-stimulated and neglected. It was recorded that a social worker who visited the home found that hygiene in the house was poor and there were no toys or play materials.

There seems to have been limited social work involvement with the 'family,' despite the foregoing concerns, between 1990 and October, 1999 when the then three children of J all stopped attending school. J was described as being 'hard to find' and each of the children was seen to suffer from poor personal hygiene. It can be seen that this coincides with the commencement of J's relationship with McL. C's medical records indicate that J suffered 'blows to her abdomen' at weeks 14 and 24 of her pregnancy and a fall at week 38. She continued to cohabit with JH Snr but was spending time with McL. Because of these concerns and the concerns about the welfare of the three other children, SR, social worker, was appointed as social worker to these children and to the unborn child to be responsible for her from birth. Despite that and frankly alarmingly, C was discharged from Ninewells Hospital, as I understand it at three days old, into the care of her putative father, McL, and not J and from her date of birth, 31^st. March, 2000, until she was first made the subject of a child protection order on 26^th. May, 2000, eight weeks after her birth, she was then shuttled between McL and J, largely at the whim of McL but to some extent also to suit the convenience of J, so that the baby had no fixed routine, had little time with her mother and was kept at various destinations where she could not be found either by the social work department or by the health visitor responsible for her care. It was SR's opinion that J was frightened of McL and that McL was using the baby as a lever to get her to sever her relationship with JH Snr. In any event, he was not prepared to allow her to take the baby to the home of JH Snr., irrespective of the needs of the child, and instead he ostensibly cared for the child while he was living in the home of a disabled lady who smoked continuously and whose home was regularly visited by a known Schedule One offender. McL was also drinking heavily at this time. From various sources, concerns were expressed to the social work department, most particularly from the social care assistant tasked with the care of the disabled lady in whose house McL and C were staying, and on 27^th. April, for what it is worth, C's name was placed on the Child Protection Register as being at risk of physical neglect. McL would not co-operate with the social work department and J was untruthful about her level of involvement with the child. On 10^th. May, 2000, J did not accept grounds of referral to a Children's Hearing and a referral to the sheriff was assigned. On 19^th. May, the health visitor, another potentially important witness who was not called to give evidence at the hearing, reported to the social work department that the child had lost weight, specifically, five ounces. The significance of a child at seven weeks suffering weight loss cannot be overstated. It is a rare event and ought to have an obvious organic cause. Had the weight loss continued, the child would have been at severe risk. In the case of C there was no organic cause. When on 24th^.May, 2000 the health visitor reported that, for the second week, the child had failed to gain any weight, SR with the approval of JF and with commendable speed, made an application to the sheriff for a child protection order which was duly granted. This particularly followed an episode on 24^th. May when JF called to see J and C at 17.30 at JH Snr.'s house. J was there but C was not. JF was determined to see the baby for herself and took J to McL's flat at Dens Road to get her, but there was no one in. J then took JF to a tenement at 27 West Street, Dundee, most of which was boarded up, where she seemed to think McL might be with the baby, but he was not there either. It was clear that either J simply had no idea where her baby was or was prepared to lie to conceal her whereabouts from the social work department. C was removed and placed with a foster carer, SS, in whose care she thrived and rapidly gained weight. It emerged in the course of inquiries that J could not make up a formula milk feed for the baby and that McL had been trying to feed her, prior to her being taken into care at eight weeks old, with white chocolate mousse. Between May and October, 2000, while in the care of SS, C became a bright, bouncy, alert and happy child who thrived and gained weight. It was not disputed by either J or McL that the application for and grant of the child protection order on 26^th. May, 2000 was anything other than appropriate.

Petitioners' production 34 is a certified copy of the application under section 57 of the Children (Scotland) Act, 1995 for the child protection order which was granted on 26^th. May which grant was not appealed nor were any of the orders of the children's hearing immediately subsequent thereto. As I have said, both McL and J accepted in the course of the proof before me that the social work department had been justified in seeking and the sheriff had been justified in granting the order. It is, accordingly, worth replicating the basis upon which the order was sought. It reads:-

" There are reasonable grounds to believe that a child is being so treated (or neglected) that she is suffering significant harm and that the child's weight gain is very significantly below that expected and there appears to be no contributing medical cause for this. That the said child has been regularly left in the sole care of her putative father, McL, who has a history of alcohol abuse and alleged violence towards the child's mother, J. McL lived with a woman in her one bedroomed flat while having care of the baby. This woman reported McL as being drunk while having care of the said baby. She also stated that he was violent towards J. Whilst in his present tenancy OOHS visited McL after concerns he might be drinking one evening. They concluded he smelt of alcohol but was not drunk. McL has refused to acknowledge the extent of his problems and reacts by excluding workers from his home. J would appear to have significant learning difficulties and has persistently failed to take steps to protect her child. She has lied about the whereabouts of her baby on several occasions. In the circumstances there are reasonable grounds to believe that the child will suffer significant harm if she is not removed to a place of safety in that safeguards and monitoring that were put in place have not been adhered to and that access to the baby by the social work department has been denied. McL has refused to provide any personal background information to allow social work department to assess his suitability to assume sole parental care of the said child. McL has refused to attend a family centre where he would have received support to enable him to look after the said child. J has continued to leave her baby with McL despite admitting he has alcohol problems and has been violent towards her."

While I will come to discuss the law in due course, the importance of the foregoing undisputed evidence again cannot be overstated. It seems to me arguable that on any objective assessment, on the foregoing information, both parents can be said to have seriously ill-treated the child, before we look at any information subsequent to the restoration of the child to the parents during the attempted rehabilitation. The fact that there was an attempt at rehabilitation does not detract from the initial seriousness of the ill-treatment of C when she was newborn. As I will come to discuss, in my opinion it was a profound error on the part of the social work department for which SR and JF have to take responsibility, to return this child to these parents in October, 2000 but even if I am wrong in that, it is my opinion, without having to look at any other evidence subsequent to the taking of the first child protection order and the lack of challenge of its terms either at the time or in the course of the proof before me, that I am entitled to conclude that each of J and McL has seriously ill-treated the child, whose reintegration into the same household should have been, because of the serious ill-treatment or for other reasons, unlikely. Put another way, on the basis of the foregoing uncontroverted evidence, the ground for dispensing with the agreement of both parents contained in Section 16(2)(d) has already been made out, subject only to the issue of reintegration into the household, to which I will come in due course. This is on account of the failure by McL to recognise that a newborn child should be with its mother and should not be used as a pawn in a game, should not be exposed to a smoky atmosphere, should not be cared for in a house to which a known Schedule One offender has access, should not be exposed to McL's own inability to remain sober while the child is in his care, and his inability to feed her properly in an appropriately hygienic and healthy environment, leading to her being undernourished and not thriving through a lack of security and should not be exposed to being at risk from a Schedule One offender and from a smoky atmosphere. In the case of J she was incapable of feeding the child properly leading to her undernourishment, she lied to the social work department about where the child was so the child's progress or lack of it could not be monitored and she left the child in the care of a violent, alcohol abuser whose principal interest in the child was as a tool to gain her attention.

May to October, 2000.

During the above period, C was the subject of a named place supervision requirement at the instance of the children's hearing in Dundee. She was in the care of SS. SR remained the social worker responsible for her care, with JF remaining as her senior. During the period, C grew in weight from 8lbs. 10 ounces to 21 lbs 15 ounces thus demonstrating that there was no organic cause for her earlier failure to gain weight; merely that she was not being fed properly. SS, another potentially important witness, was not called to give evidence so I do not have any direct information about her assessment of the relationship between McL, J and C as she would see it during contact and when she was, as she was, trying to assist McL and J address their deficits as parents. SR, in her evidence, made it clear that she was aware of the background of J's child, S, being involved in swallowing medication which could have proved fatal, and in historical concerns about hygiene in the home and J's intellectual limitations. She was of the opinion that J demonstrated limited maternal skills. She also considered that J relied heavily on her mother for practical assistance with bringing up the children. Prior to C's birth, there were problems with school attendance for S and P, and JH Snr. regularly did not know where J was. That did not settle, as we have seen, with the birth of C, leading to the child protection order, and it went on to become one of McL's regular complaints to the social work department that he did not know where J was and that he had been left to care for the children.

So there were patently issues about the practical ability of each of the parents to care for the baby, about J's history of not providing adequate practical care for her children, about her, objectively viewed, indifference to the welfare and needs of her older children and as to whether they were attending school, about the nature of the relationship between the couple i.e whether it was stable or abusive, whether McL had an alcohol addiction that was of such ferocity as to render him at least unreliable if not incapable as a carer for a young child and about J's intellectual limitations, all of which issues should have been addressed by the social work department if they were serious about the process of rehabilitating this child with these parents.

I have already said that they did nothing to assess and establish the true extent of J's intellectual limitations. They did not ask McL to undergo any test, assessment or examination to determine the extent of his alcohol abuse, though it is doubtful if he would have co-operated with them. Efforts were made to address the older children's failure to attend school but with limited success until March, 2001 when they too were made the subject of child protection orders and placed with foster carers. Otherwise their approach appears to have been to try to teach these parents practical parenting skills. The social work department did not however have a clear view, as at 26^th. May or for some time thereafter, whether they were trying to rehabilitate this child with one or other or both its parents.

It is fair to say that, following C being taken into care, McL and J both agreed to work with the social work department to improve their parenting skills. Efforts to undertake that work, however, regularly degenerated into disputes mainly initiated by McL, about J's inherent inadequacy as a parent. McL also regularly spent time upbraiding J for the problems in their relationship. Eventually, the social work department, recognising that the foregoing disharmony was counter-productive, decided to try to educate each of them separately. At this stage it would appear that J was still residing in the home of JH Snr. which perhaps, as much as anything else, points up the hopelessness of the approach adopted by the social work department and the lack of any prospect of McL and J ever operating effectively as a couple. At this time, J appeared to be incapable of deciding whether her future lay with McL, JH Snr or neither of them and that added to the complications in future planning for C's welfare. There was a stage at which both McL and J were separately claiming that McL was not C's father and there never was any evidence, beyond the birth certificate, to confirm that he is indeed C's biological father. Members of staff at the Beechwood Child and Family Centre in Dundee working with SS attempted to inculcate some parental skills into J and McL separately but it appears to have been an uphill struggle. For example, on 19^th. June, 2000, when it might reasonably have been expected that J would have been making an effort to impress the social work department if she was anxious to secure the return of her child, when SS and a member of the staff from Beechwood, a Maggie Cussick, went to the home of JH Snr at 09.00, along with JF, to teach her skills in the home setting, they found that she had not yet acquired the skill of getting up out of her bed. Her three other children were also in bed and she appeared to have been in bed with JH Snr., another pointer to the unreality of expecting her to co-operate with McL in aquiring parenting skills so they could jointly care for C. It was also then discovered that, despite J's earlier contrary assertions, there was none of the necessary equipment in that house for a baby - no chair, no sterilising unit, no bath, no changing mat and no measuring jug. The children that were there were roused from their beds and dispatched to school without breakfast. The social work department had supplied her with a sterilising unit but she did not seem to know where it was. The house was unhygienic to the extent that JF had a distinct recollection of her shoe becoming stuck to some item of discarded food on the living room carpet. She said that the kitchen was covered in empty carrier bags and rubbish and she did not consider it to be habitable. The conditions would not have been acceptable to normal people but JF did not consider that she was dealing with 'normal people.' It is surprising that no action was taken at this time in relation to the welfare of the children who were living in that house.

When a similar effort was made at McL's home to train him, the worker claimed to have been made to feel uncomfortable as he tried to involve her in inappropriate discussions.

At this point J said that she did not wish to be with either JH Snr or McL and SR persuaded Womens Aid to offer her accommodation where she could be on her own with the children. Within days, she revealed the address to McL, causing Womens Aid to insist that she move on, as she had broken one of their fundamental rules in revealing the address to a man. She then moved to the Lily Walker Centre in Dundee, the local authority's hostel for homeless persons, where she was given an independent self-contained unit in which to live with the children. Housing department staff there complained that she was not occupying the unit, which was a scarce resource, and JF visited and did not find any of her belongings there. J was given a flat at 86 Honeygreen Road, Dundee, but did not reside there either. She appeared to be residing at her mother's flat or at McL's flat. At about the same time, McL was observed by a member of social work staff coming out of a taxi at 02.00 substantially under the influence of drink. Again at the suggestion of SR and JF, J agreed to make an application to NCH Families Project, a supported family accommodation provision in the north of the city, whose main function is to deal with "problem" families. The referral was for J and the children and did not include McL. It was ultimately rejected as not meeting the criteria.

At about this time, a report (Production 64) was prepared by SR by way of background for a review hearing of C's case by the children's hearing. It was dated 12^th. July, 2000. It recorded that an ongoing assessment of the suitability of both parents as carers for C had been taking place. It recorded J's various moves via Womens Aid and the Lily Walker Centre to 86 Honeygreen Road, reporting that she was about to lose that accommodation because she was not residing there and observing that it had been impossible to assess her ability as a carer outwith the Beechwood Child and Family Centre "due to her transient lifestyle."

McL was also the subject of "ongoing assessment." He coped quite well with the physical requirements of baby care both in the Family Centre and in his flat at Dens Road which was reasonably equipped. It was felt, however, that his own needs remained of greater consequence to him than those of the baby. He was considered to be still trying to use the baby to control J. There was concern that he was continuing to drink despite his denials.

It is then recorded that "At a Child Care Review held on Monday 10^th. July, McL and J asked for contact to be resumed for them as a couple. However, there was little indication that there was any bond between the pair and, although J appeared to seek McL's company at times, she has only ever made vague references to them setting up home together at some time in the future." This is to be contrasted with the content of production 62, the application form for the NCH Families Project, in which J had written, apparently three days earlier, "I need to be on my own with my children to show people that I can do it.." SR's conclusion in the report, No. 64 of process, was that neither parent had shown any true commitment to C and that they both saw her as a possession and bargaining tool. They were unable to put her needs before their own and possibly did not realise that she had separate and very specific needs. The request was for a named place supervision requirement with SS as the named carer as "we do not feel it is safe to return C to her mother's care at the present time."

I would have little difficulty in agreeing with the propriety of the conclusions set out in that document.

To that document there was an attachment, written by Maggie Cussick, from Beechwood Child and Family Centre, about her efforts to teach McL and J basic parenting skills. Her position was that it was "apparent from the first session that both parents lacked the basic skills necessary to parent C." They did not know how to prepare a feed. They did not know how to sterilise a bottle or other equipment and had no appreciation of the reason for so doing. They did not understand the need for a clear routine to be established. They claimed to be willing to learn but efforts to teach them were disrupted by disagreement between them. However, gradually they got to the stage that, in the safe environment of the Child and Family Centre and with help standing by, they could manage." She then made reference to her attendance with SR at the home of JH Jnr to try to teach the skills there to find the family still in bed and none of the necessary basic equipment present. She was also concerned about the poor level of hygiene and concluded, quite simply, that until these issues were addressed, contact in the home could not resume.

She had also been given the task of assessing McL. She described him as nervous about being watched but that his house was clean and tidy and he had all the necessary equipment. However, he was seen to cope well with bathing and changing the baby, sterilising her feed and making up her bottle correctly. She considered McL was making an effort to work with the Family Centre to acquire parenting skills and that he cared greatly for C but "C's needs are often secondary to his own, e.g. arguing with J throughout contact."

The children's hearing sat on 19^th. July and made a named place supervision requirement for C with SS. The hearing recorded, amongst other things, as their reasons for so doing that co-operation between the parents remained poor, that C was thriving in care, that J had no stable address, that the Child and Family Centre staff did not consider the parents could offer a stable home at the moment, that J's home was unhygienic, that McL had an unresolved problem with alcohol and that it was uncertain what the relationship between the couple actually was.

On 28^th. July, 2000 McL telephoned SR informing that he and J were planning to try to get a flat together. This is recorded in production 68. For reasons known only to herself, SR both spoke to and then wrote to the Housing Department a letter dated 4^th. August, some of the contents of which are of the most dubious veracity. The bottom line was that she was seeking to persuade the housing department to house McL and J as a couple in a property which could also accommodate four children, at a point where there was no indication that they could be successful as a couple, let alone as a couple responsible for the welfare of four children. JF conceded that the thinking at the time was that they wanted to keep this family together "even if our instincts were telling us that it would not last." I found that approach quite extraordinary and completely unacceptable as an approach to child welfare.

As a result, on 9^th. August, McL and J were offered the tenancy of a flat. SR discussed this with them on 10^th. August at which time McL was expressing pessimism about the prospect of such an arrangement succeeding. He began to complain about JH Snr., saying that he would not move until that was resolved by which I understood him to mean the position in relation to residence to and contact with JH Jnr.. SR considered he was beginning to demonstrate cold feet.

The next significant piece of evidence was Production 71, a Minute of a case conference dated 24^th. August, 2000. Both SR and JF were in attendance as was the health visitor, J and McL. That report claimed that "Over the last few months both parents have been receiving parenting skills from Beechwood Child and Family Centre and have responded well to this input." SR appeared to accept that she was probably the source of that statement. The report also purported to record that "Both parents have always been punctual and committed to contact." SR suggested that that meant that they had always attended. As at 24^th. August, McL and J had been involved with the staff at Beechwood for a little over two months during which period the staff had been unable to engage with J as she moved from the home of JH Jnr., to a Womens Aid flat, to the Lily Walker Centre and then to 86 Honeygreen Road. The attempts to teach them were marred by feuding between the couple and the different attitude evinced daily by McL towards J as to whether he wished to be with her or not. It is true that SS is recorded at second hand as having been impressed with their efforts but the suggestion that McL and J responded well to this input is largely without justification and, as we shall see once the child was returned to them, the suggestion that they had acquired sufficient skills as a result of this process was demonstrably inaccurate. It is also worth making the point that, as I understand it, there had been little if any opportunity by 24^th. August to assess either McL or J in a home setting, certainly not as a couple, because they had not been living together and were still not as at that date. It is also fair to comment that two of J's sons, P and JH Jnr., had been in England on holiday for a lengthy period over the school summer break and that SR and JF had had no opportunity to assess how McL and J as a couple would cope with the three other children plus C as seemed to be the plan. That plan, as I understand the evidence, never came to fruition because JH Jnr never returned to live with J but remained with his father. So as at 24^th. August, the family dynamics were, to say the least, fluid and not conducive to meaningful assessment. The fact that, contrary to the expectation of the social work department, JH Jnr went to live with JH Snr at least gave rise to the possibility, in relation to the dynamics of this 'family' that JH Snr might yet resume a significant role. So far as contact is concerned, while McL and J may have turned up, the evidence is that he used contact periods to berate her and that she sat back and demonstrated little interest in the child. I would not have regarded that as equating with "being committed to contact." More importantly, what is recorded by the social work assistant supervising contact, is that there was little sign of any emotional tie between the parents and the child, the mother in particular.

The report goes on to say that "this situation (by which I would understand J's lack of any fixed abode) has now been resolved by their decision to live together, and this should be happening soon." I heard no evidence which would explain why, if they were truly committed to each other, all of a sudden, they could not move in together immediately, and one would have hoped that an experienced family social work practitioner would have had some reservations on account of that not happening but there do not appear to have been any reservations. The report continues, "SR confirmed that she feels that between them the couple have learned sufficient parenting skills to resume C's care, but they will require ongoing input in relation to child development, and it is envisage that Centre staff support will continue."

Crucially, there was no test to ascertain whether they had in fact learned sufficient in the way of coping skills to resume the care of C. One obvious way of doing this would have been to monitor closely how they got on as a cohabiting couple when they resumed the care of S and P, both of whom were challenging children as it was. There had been no discussion with the staff at Beechwood Child and Family Centre as to whether they had the resources available to continue to support this family or whether they thought there was anything further useful they could do, so SR's "envisaging" was no more than an unsupported hope.

SR was asked about what appeared to be a Damascan change of attitude on her part to the resumption by the parents of the care of C and all she could offer was that they had now agreed to pull together as a couple. Asked how they could demonstrate that they were pulling together as a couple when they were living in separate houses, she said that it was realistic for McL not to move in completely right away because "he wanted to see how things would go, because the children would also be moving in at that time and it was a reconstituted family." She seemed incapable of recognising the paradoxical nature of this position that it was essential to the exercise that they pull together as a couple, as neither on their own would be regarded as able to be trusted to care for a child, yet she would countenance a situation where his commitment was, at best, part time. Notwithstanding these idiosyncracies, the plan was approved by JF as SR's senior and by a reviewing officer and it was agreed that the social work department would support C's return to her parents. This was agreed despite reservations expressed by the health visitor that she would not be happy about returning the child to the parents unless they were cohabiting, and thus providing, in effect, a check on each other, and unless there was an agreed support package from the social work department in place. JF accepted in her evidence that "normal people" would think the decision to return C to her parents at this time and in these circumstances was "strange." She accepted that "unstable" rather than "steady" would have formed a more accurate adjectival description of the relationship between McL and J.

Another issue which remained unresolved at this stage was McL's general attitude to social work involvement. From the outset he had been unco-operative and he had still not given the department any real information about his background. For all they knew, he could have been a child molester. They certainly had cause to suspect that he had both physically and emotionally abused J in the course of their relationship. It surely was important to have some information from a credible source about his back ground. He did not belong to Dundee. SR believed him to be from Glasgow, but she did not really know. Checks with Glasgow City Council Social Work Department proved negative. She and JF should have insisted in having proper credible background information on him prior to contemplating the return of the child.

It is also apparent that there was no proper discussion between JF and SR on the one hand and the staff at Beechwood Child and Family Centre on the other resulting in the latter being unclear as to what their role was or responsibilities were to be following the return of C. This is a completely unsatisfactory state of affairs.

The upshot of this care conference was that JF was to convene a meeting to draw up a "detailed support plan." It was conceded by JF that this never happened despite the obvious need with this couple to set close parameters. Also, the social work department would ensure that "all necessary supports are in place when C returns home." That is a delightfully vague expression which, in practice, turned out to be virtually meaningless. Finally it was recorded that, "If C's return home does not work out as envisaged, and if there are concerns about her health, development and welfare, the social worker (i.e. SR) was to ensure the appropriate action was taken." As we shall come to see, C's health, development and welfare were all significantly prejudiced during the period of the attempted rehabilitation, almost from the outset, but it took social workers five months to bring the rehabilitation to an end when further child protection orders were sought and granted. This happened because there was no firm plan with firm conditions prepared and agreed between the department and the parents prior to the return of the child and because the increasingly unsatisfactory state of function of the family was simply allowed to drift by SR and JF.

The house obtained through SR's efforts was fresh and newly equipped and furnished by the local authority. Five months later it was to be described by a housing officer as one of the filthiest houses she had ever seen. That steady deterioration should have been obvious to these social workers had they taken any care in the course of visits to the property.

The children's hearing was duly requested to review the named place supervision requirement and return C to the care of her parents. Production 76 is a background report written by SR in support of the department's position that that change should be authorised by the hearing. The report stated, in relation to C were she to be returned to her parents, that "Her progress will continue to be carefully monitored and, as there is likely to be continuing social work involvement with this family for a while to come, there will be ongoing assessment of the parents' skills and continued support will continue to be offered to them at an appropriate level." None of that happened and, viewed objectively after the event, the children's hearing was misled.

Another curiosity to me was that, despite all that JF had to say about the need for rehabilitation to proceed as swiftly as possible in the child's interests, no steps were taken to convene a children's hearing for that purpose as a matter of urgency. The performance of SR and JF is, regrettably, riddled with such inconsistencies.

SR appeared to be driven by two considerations, namely that it was her function as a family social worker to keep families together and that if there was to be successful rehabilitation of a child then it had to be commenced as soon as possible. I accept that it is important, if there is any reasonable prospect of rehabilitation working, that the child must be returned to the family at the earliest possible opportunity and I accept that there will be times that, to achieve that, chances with the welfare of children require to be taken. In the present case, however, it should have been evident to this experienced social worker that there was never any prospect of a successful rehabilitation. Equally, the attempt should have been executed in such a way that the child's welfare was adequately protected and the minute anything went wrong, the attempt at reconciliation should at least have been once more interrupted. It was, in my opinion, negligent to allow this baby to be returned to these parents without a detailed care plan agreed and thereafter monitored effectively. JF appeared to be driven by a guideline that the future of a child taken into care should be resolved within three months and in C's case, five months had now elapsed. I did not understand that evidence as the order was only made on 26^th. May and decisions were being made at the end of August, though not implemented until 9^th. October. The fact remains that any guideline is just that, a guideline, not to be followed slavishly when, at best, the dynamics of the relevant 'family unit' remain in a state of flux. She accepted that there was evidence from which it could readily be inferred, even at about 14^th. August, that McL had not made up his mind about the wisdom of embarking upon full time cohabitation with J and her children, something which, after all, he had not previously done. JF admitted, quite extraordinarily it seemed to me, that he was told at this time that if he did not co-operate with the plan, then C would not be returned - apparently whether or not his reservations were genuine. She also seemed to think that his retention of his separate tenancy at the flat in Dens Road to where he might escape when the going got tough was (a) a good thing and (b) not inconsistent with the need for McL and J to be pulling together as a couple if C's welfare were to be protected. I was unable to understand or accept her position on this.

Production 75, a set of detailed social work entries covering the period at the end of September, 2000 as the 'family unit' prepared for C's return, provides some useful insight into how this couple and the children were "pulling together." On 26^th. September it is recorded that McL sounded "dopey" and that J's son, P, in the course of an argument with McL, had taken C's photograph and had thrown it to the floor, smashing it. At the same time, J's daughter S was not attending school but instead was travelling around Dundee on a daily basis on a bus, having formed an "inappropriate relationship" with its driver. McL complained to JF that he did not want C coming to a house where J "could not control her kids." In a second telephone call to JF, McL apparently suggested it would be in C's best interests to be adopted and that he was thinking about going "back on the drink." J could be heard in the background shouting that McL was on the drink every night and that he had been "hitting" P. It does not have the ring of a harmonious household into which to return a child who would then be seven months old.

It is instructive to read the reasons for the decision of the children's hearing of 6^th. October, 2000 which decided to allow C to return to her mother's care. These were that:-

"1. C still requires to be on supervision because she is a young and vulnerable baby

who has only recently gained adequate weight;

2. Both parents have worked hard to address parenting skills and provide a home for

3. Social work and family centre support will continue when C returns home.

4. C has been having whole day contacts which have been successful.

5. Health visitor report indicated no concerns with C going home if social work

supports were in place."

The only source of information to this children's hearing, as I understand it, would have been SR's background report. The children's hearing were misled by its contents and came to a conclusion that could not be supported on the evidence I heard, though the conclusion was correct on the misinformation which they were given.

Period from October 2000 to 1^st. March, 2001.

C returned to live in family with J and her children S and P on 6^th. October, 2000. J's third child, JH Jnr., came for contact at weekends but was residing through the week with his father. It is not clear how much time McL spent with this 'family unit.' There were undoubtedly times when he was not there. There were other times when he appears to have been the only adult there.

Not long after C was returned, McL telephoned the social work department complaining that J was never at home and that he was being left to look after C on his own. This should have concerned the social work department but they did not respond in any positive way. It should have concerned them because they remained unclear whether McL had resolved his alcohol abuse problem; their conclusion at the time of C's return was that it could only be to both parents so they could keep watch on each other; J's nomadic behaviour was not new - on the contrary it should have indicated a return to her former behaviour of staying out and not caring for her children; and it should have indicated that McL was inclined to complain about J's failures rather than taking responsibility himself for caring for C.

J had agreed with the social work department that she would take C to a mother and toddler group on a weekly basis. She went once, never to return. The background to this requirement had, of course, been a monitoring one so that staff running the group could report on C's welfare. Though SR and JF were aware of J's failure to bring C to the group other than once, they took no steps consequent upon this failure.

SR visited the house on 10^th. November, 2000 and recorded that C appeared to have lost some of her vitality. This should have led to the social work department insisting on a medical examination of the child, but nothing was done.

By 23^rd. November, McL was telephoning SR complaining that J was not doing the washing and that the children were dirty. He repeated that complaint on 27^th. November. Shortly thereafter, the social work department received a letter from solicitors he had instructed intimating his desire to take on sole responsibility for the welfare of C, the clearest possible indication that the relationship between McL and J was breaking down. Still, the social work department did not act.

By 6^th. December, the social work department were made aware that no one was bringing C to her general practitioner for clinic appointments. That should have led to action being taken, in the light of the previous serious concerns about the risks to the child's health and the previous failures to co-operate with the health visitor and attend for appointment, to steps being initiated for the removal of the child from J and McL. Nothing was done. In particular, the health visitor was once more expressing concern about the child's failure to gain weight properly. Having gone from 8lbs. 10 ozs to 21 lbs. 15ozs when in care, during the period from 9^th. October until the child protection order for her was granted on 1^st. March, 2001, her weight only increased by 1 lb. 9 ozs. which is an extraordinarily small amount at that time in an infant's development. Had proper monitoring, including regular weighing of the child, an obviously desirable precaution, been insisted upon, this unhealthy and potentially dangerous state of affairs would have been uncovered. Frankly it ought to have been obvious to the social work staff who did see the child from time to time. However, this lack of normal weight gain did not come to light until C was medically examined after she had been the subject of the second child protection order.

They should also have been aware by 6^th. December that McL had once more started to drink heavily and frequently, if he had ever stopped. He had told them as much. On 27^th. November, J had called the police to the house on account of McL's drunken behaviour. On about 13^th. November the social worker allocated to the child, S, Fiona Page, reported to SR that she had visited the house and found that McL had been drinking and that S was looking after C. J also complained that McL was drinking regularly.

Things finally began to come to a conclusion on or about 18^th. January, 2001. SR went to the house on 19^th. January when the child P complained to her that he had been assaulted by McL both the previous evening and that morning, one of the acts of assault involving McL striking him with a snooker cue. He also said that McL had struck S and she had telephoned the police. Both McL and J denied that McL had struck either of these children. McL called P "a fucking liar." However, S then told SR that McL had "battered" P the evening before and that he had hit her and kicked her in the groin. S said that McL was drunk and was shouting at them. The police had arrived and had asked J if she wanted McL to be charged and she said 'no.' J denied that she was failing to ensure the safety of her children. She led SR to believe that McL had left the house and was gone for good. SR made enquiries of the police and learned that it was McL who had called them.

By 22^nd. January, despite J's assertions, McL was back at the house for he was telephoning JF complaining about J's failure to get the children to school. SR attended at the house. McL was not initially present but he turned up under the influence of drink. He started shouting and swearing at everyone. SR tried to explain why she was there but he would not allow her. He became louder and more agitated. He complained about S and P, leaning over them and jabbing his finger into their faces. SR was, understandably, concerned about her own safety as well as that of the children. She gave the children numbers to call if matters got worse. As she was doing so, McL burst into S's bedroom where this discussion was taking place, holding C in his arms. He was complaining about J's inability to wash clothes and was carrying a discoloured babygro. He pursued SR from the house, still holding C in his arms. SR did nothing further that day to secure the protection of these children.

However, on 28^th. February, 2001, S telephoned the police complaining again that she had been kicked by McL. There had been a meeting that day at which S had been expected and McL and J both misled SR into thinking that S was at the doctors. In fact, S was looking after C. Apparently, she came home later than expected, about 18.30, and McL followed her into her bedroom in a rage, pushed her against the wall banging her head, called her obscene names and kicked her in the groin. She left the house and went to her aunt's home from where she telephoned the police. S did not ever return to reside at her 'family' home again.

This reported activity at long last galvanised the social work department into action and the following day, they sought and obtained child protection orders for S, P and C. The application, lodged as production 103, was unopposed and unappealed. The application alleged that McL had been violent to J, S and P, that he was often drunk and that there were times when he removed C from the house to go to some drinking den. J was not being honest with social workers and had compromised the safety of her children. All three children were considered to be at risk of abuse and neglect.

Period from 1^st. March, 2001 to 14^th. September, 2001.

Armed with the child protection order from the sheriff, social workers found C in McL's care in a sparsely furnished property of which the main feature was a bloodstained mattress. C was examined by Dr. Dewar, a consultant paediatrician at Ninewells Hospital, Dundee, and considered to be under weight and not thriving. P and S were also considered to be under weight. P had a chronic chest infection. S had a head lice infestation.

To their credit, at this point at least, SR and JF recognised that they could not contemplate the return of any of these children to either of these parents. That was formalised by 19^th. April when a review hearing took place and J and McL were told that C would not be being returned to them. C meantime had been placed in foster care.

The department's first plan was to try to find a link carer for the children, that is, a family member who would assume responsibility for them. The two older children, S and P, had initially been placed with J's sister, E and her partner, but the partner was not regarded as a person who was suitable to be responsible for the care of children. McL and J tried to undermine E's care of these children while they were with her, encouraging them to come to their home, notwithstanding that that could have amounted to a criminal offence. E then took an overdose of tablets and the children were removed from her care and placed with foster carers. That was the end of the link carer plan.

In May, 2001, because of complications with the initial foster carer, C was moved to stay with HF and her husband. By that stage, SR and JF had reached the conclusion that, from their perspective, the appropriate route forward for C was to be freed for adoption. However, when the case called before a children's hearing as a review of the circumstances which had led to the child protection orders being granted, one of the members of the children's hearing requested that an independent assessment of the parents' skills should be obtained. Thus began another unusual chapter in this affair. The hearing specifically requested that Children First should work with the social work department to arrange an assessment of parenting skills of J and McL. This is set out in the "Reasons" section of the children's hearing's decision of 4^th. June, 2001, Production 137. It was not clear from the evidence exactly what the children's hearing had in mind in making this request, given that the social work department's opinion by that stage was that there was no point in working further with J and McL as prospective parents of these children. In any event, Children First declined to accept the referral. An attempt was then made to have Douglas Child & Family Centre, another Dundee City Council Social Work Department run child and family centre in a different part of the city, carry out the "independent" assessment but they also declined. This became elevated into an argument that the petitioners had failed to follow the instruction of the children's hearing to have their assessment of McL and J independently reviewed which, at least on a consideration of the precise terms of the decision of the hearing, does not appear to me to be what was in fact called for. SR and JF then produced a document which was described as a child and family comprehensive assessment - see production 139. It contained nothing new but appears to have been accepted without further question by a subsequent children's hearing, without demur. Quite a lot of time was taken up in the course of the hearing with suggestions that the department and JF in particular had demonstrated a lack of understanding of human rights legislation by not having their decision independently reviewed as called for by the children's hearing but, with hindsight, it seems to me that that line of cross-examination proceeded on a misunderstanding of what it was that the hearing was actually seeking. In any event, it is not clear that the hearing was actually seeking an independent review of the social work department's assessment of the capabilities of McL and J to parent C, S and P. Furthermore, when the children's hearing ultimately elected to proceed on the information in the report prepared by SR, and therefore without the "independent" assessment, their decision to do so was not appealed

C settled quickly and very well in the care of the foster carer, HF, in her home and with her family around. She was being taken for regular contact with McL, J and her siblings. McL's response to contact was considered poor. He arrived late and left early, offering various excuses. When there, he used contact as an opportunity to raise various issues he had either with J or with the social work department rather than interacting positively with C. When he was refused permission to bring a friend with him to contact, he himself did not attend. His attendances at contact became more and more infrequent until he stopped coming altogether, claiming that he found the whole experience too upsetting.

At times, J interacted well at contact with C, usually when McL was absent. At first, they saw her together, but then McL wanted to see her on his own. When J then came, so did many other people, not just S, P and JH Jnr. This was unsettling for C and her foster carer, HF, regularly expressed concern at the difficulties she was experiencing getting C to settle after such contact sessions, including periods when she would cling to her, where she would excessively demand attention, where she would not eat properly and where she would either not settle to sleep or would wake up crying in the middle of the night. These things only happened around the time of contact, notwithstanding that the child had a lot of difficulty and discomfort with nappy rash. J also tended to take a back seat at contact sessions and it was generally observed that there appeared to be little if any affection demonstrated either by her or by C to each other on arrival at or departure from contact sessions. It was felt that there was no real attachment between the two of them. It was clear, however, to social work staff that C had quickly formed a strong attachment to her foster carer, HF, so it was not the case that she had any difficulty in forming attachments with people who cared for her.

HF reported that C was developing a number of skills, was responding to instructions and was beginning to say a few words. Her eating and sleeping routines were generally good. She still tended to cry when HF left her. She had initially demonstrated being afraid of HF's husband and her daughter's boyfriend but was fine now that she had got to know them. She enjoyed receiving attention and affection.

As at 14^th. September it was agreed that C's case would be transferred to Dundee City Council's permanence team and SR ceased to be the responsible social worker, that responsibility transferring to CC, a member of the permanence team. SR, however, remained case responsible social worker for the other children, S and P, both of whom remained with foster carers on a long term basis, though S does maintain regular contact with both McL and J. P has weekly contact with his mother, but no contact with McL.

Period from 14^th. September, 2001 up to the conclusion of the Proof

C went to reside with HF, foster carer, on 4^th. May, 2001 and remained with her until 27^th. May, 2002, when she was placed with her prospective adoptive parents. C did not demonstrate much stress when she moved into HF's home, but HF sensed that she was afraid of men. Throughout much of the period, C had contact with her parents and siblings at least once a week. She began to walk about two weeks after she arrived at HF's home.

HF was unable to form any kind of working relationship with either of the parents. She made the mistake of giving J her mobile phone number so she could contact C when HF took her away on holiday only for J to pass the number to McL who harassed HF with constant telephone calls about trivial matters relating to the way C was dressed or how her hair was done.

The older she got, the more significant her adverse reaction to contact sessions became. There was one night C had woken up very frightened. HF made enquiries and discovered that one of the older children had brought some kind of monster toy to the contact session and had frightened C with it. On another occasion HF agreed to J accompanying her and C while she took C for an inoculation. C became so distressed that the procedure could not take place. The following week HF took her on her own and C allowed the procedure to take place without difficulty.

From February until May, 2002, when contact was terminated, the post-contact distress was significant. On every occasion after contact C required reassurance. She would not go to play; she wanted to be cuddled and held close. This did not happen at other times.

C always needed to know that there was food available. She normally ate quickly and then looked for more. There was some concern that she seemed to be particularly open with females displaying no wariness with strangers. There were still times when, even in the presence of HF's husband, she would sob inconsolably and her personality, which was otherwise affectionate, could rapidly disintegrate into anxiety if she sensed any unusual change of activity.

Towards the end of her period with HF, C would cling to HF when social work staff arrived to take her to contact sessions and would shake her head and say 'no' repeatedly. HF also expressed concern about C's speech being delayed but she was never referred to therapy or offered any other assistance in this respect. HF also pestered social workers with her concerns about the emotional distress being caused to C by continued contact sessions. She attended at the Adoption and Fostering Panel on 21^st. February, 2002 and expressed the very clear view that C should be freed for adoption. She met the prospective adoptive parents before C did and was involved in the handover which was a tricky process as well as being emotionally difficult for her.

It is impossible to overstate the importance of this period of stability and attention enjoyed by C in the care of HF. The first fourteen months of C's life had been a complete nightmare given the ineptitude of her biological parents and the extraordinary decision by the social workers responsible for her care to return her to them in October, 2000. HF minimised her efforts in the course of her evidence and emphasised the good points of C's personality but it is quite clear that a huge amount of work and time was involved in giving this unfortunate child a settled home and lifestyle. It must have been heartrending to see these efforts undermined weekly by the contact sessions and it must have been extremely hard, given the level of the bond which had developed between C and HF, ultimately to have to help in facilitating in her transfer to the prospective adopters and to part company with her. It is no exaggeration to say that HF is worth her weight in gold and that if C does turn into an emotionally secure adult that a great deal of credit for that being achieved is due to the hard work and sterling effort of this lady and her family in turning a desperately unstable set of circumstances for this child into one where she enjoyed and responded positively to love, care, affection and a stable home environment. It is also fair to say that the efforts to cross-examine her on behalf of both J and McL were more attempts to engage her in semantics, were desultory and demonstrated as well as anything the respective weaknesses of the parties' cases.

When CC assumed responsibility as C's social worker in September, 2001, she was quite clear that the best solution for C would be adoption and that was the end to which she was working. She never pretended the contrary and got on with the process of completion of forms with a view to the application for freeing for adoption being presented to the court. She was quite clear that both biological parents were opposed to the child being adopted and that that being so, there was no point in contemplating any form of open adoption. Equally, given their treatment of J's sister, as well as their treatment of all of the children who had been in their care, there was nothing to be said for continuing contact beyond what would be necessary to terminate the relationship. She recognised, of course, that this was a decision to be made by the children's hearing. She knew that J's sister had been considered and discounted as a link carer and she knew the background to her being discounted, namely that the sister had demonstrated a lack of stability in her own personality such as would cast doubt on her ability to care for a young child and that J and McL would take every opportunity to try to undermine her position were C to be placed with her.

In an astute observation, she noted that the reports from the social care assistants who were monitoring contact that contact sessions were becoming more and more chaotic with too many people and children involved and C not really paying any attention to anyone in particular. She wondered from what she had read generally whether contact was a reflection of life in general in a household where J was the principal adult. I think she is correct to conclude that the chaos at contact was indeed an accurate reflection of J's life in general and that suffered by her children.

By the time CC became case responsible social worker for C, McL had not attended any contact session for seven weeks. On the last three occasions he had attended, he had left C in the care of social care assistants so he could come and make complaints to social workers about various aspects of her care, rather than spending as much time as possible with the child.

CC met with McL and J both separately and together. When she first met them, they presented as a couple but shortly thereafter McL came to see her claiming to have left J, never intending to return and wanting separate contact to C. She discussed permanence plans with both and both were consistent in stating opposition to such plans. McL was more interested, she felt, in his rights, apparently seeing C as 'his property.' J seemed to have little idea what the role of a parent should be but also felt that C 'belonged' to her and that the social work department had no right to remove her. CC formed the opinion that J did not have the intellectual capacity to put C first, an assessment with which I respectfully concur. She observed that both HF and a respite carer who had had the care of C for a couple of weeks in December, 2001, were both expressing concern about C's state of being very unsettled following contact.

Typical of McL's attitude was a telephone call made to her by him on 12^th. December, 2001 when he complained about C's hair being in "fuckin' bunches." He threatened to change her hair at the next contact session. He was reminded that the foster carer was responsible for the child's current appearance but that his concerns would be passed on. He shouted and swore at CC until she was obliged to terminate the call. She was aware that he, not having been at the contact session, had not actually seen the child's hair or her appearance generally. McL was more interested in doing battle with the social work department that promoting C's welfare.

CC wrote the report contained in Production 153 for a children's hearing requested by J to increase her level of contact to C. This report is dated 9^th. January, 2002. It is interesting to observe, in the context of human rights to which consideration will have to be given in due course that even CC, who was by far and away the most knowledgeable of the social workers involved in the care of C when it came to human rights, was demonstrating limited comprehension when writing, " In preparing this report reference was made to Social Work duties and responsibilities under the Children (Scotland) Act 1995, the Human Rights Act 1998 and the European UN Convention on the Rights of the Child ratified in 1991." It is encouraging that something was said even if the impression conveyed is of one UN Convention for Europe to be distinguished from the rest of the world.

The summary contains a useful and concise history of social work involvement with the family prior to the fourth pregnancy. It suggests a surprising lack of social work involvement with emotionally and physically deprived children.

The report records that after the child protection orders were granted in March, 2001, S was medically examined by Dr. Dewar, Consultant Paediatrician, on 6^th. March, and it was noted that she had lost weight and height. Her presentation was lethargic and she had well established head lice. P was similarly examined and found to have a chronic chest infection which could have been prevented if he had been encouraged to use his inhalers. He had chronic ear wax in both ears and required spectacles. He had missed his meningitis C vaccination through being out of school. Both children required extensive dental treatment as their teeth had not been properly cared for for years. C was found not to have gained weight as she should have and not to be thriving.

In relation to contact she noted that there was little emotional reaction between S and P on the one hand and C on the other, hardly surprising when the picture appeared to have been that C was favoured over S and P during the short period they did all live together. C was not upset by the continuing non-appearance of McL though she was told he would be attending. J demonstrated her lack of parenting capacity by continuing to be unable to engage or sustain engagement with C during the contact periods.

CC was the first social worker to record formally that, in relation to C and J, the experience of C was one of history repeating itself, having regard to the unhappy experiences of S and P over many years. She noted that both parents placed their own needs before that of any of the children. No effort to effect change had been made. The rehabilitation attempt had been "unsuccessful." Neither parent acknowledged responsibility for the defects in C's care. She observed, rightly, that C had a right to a secure and settled family life, a right which her biological parents were incapable of fulfilling. A permanent solution should be sought but in the meantime contact with both parents and siblings should be reduced.

A children's hearing sitting to consider the issue of the level of contact on 17^th. January, 2002, reached the conclusion that the level of contact should not be altered but it is important to consider their reasoning for this decision, which was unappealed. They recorded that, "The parents' situation has not changed significantly and they remain unable to offer C a home providing the necessary level of care and stimulation......C's case was currently being considered for permanency and should be presented to the Authority 'Decision Maker' in about 8 weeks. His decision would determine future contact policy and it was felt unnecessary to change the current contact arrangements, pending the permanency decision."

It can be argued that the children's hearing should have made a decision simply having regard to the current quality of contact but it does seem to me that in the circumstances their decision is understandable and reasonable. It does not mean, as was suggested, that they disagreed with the suggestion from CC that contact was a less than meaningful experience but simply that they concluded that there was no point in altering its level until the outcome of the permanency decision was known.

On the subject of a lack of emotional attachment, CC observed in her evidence that an objective bystander would be more likely to conclude, from observing signs of emotional attachment, that C was CC's child rather than J's. It was her opinion that J did not understand that C had feelings which were different to and separate from her own. C however showed no physical reaction to J's departure at the end of contact sessions nor any emotional reaction. In particular, there was no sign of distress. Eye contact was poor. Physical contact was limited. There was no attachment relationship. C went to either CC or the social care assistants at contact sessions rather than to her mother if she were seeking reassurance or if something upset her. On the first occasion on which her father had appeared for months, a contact session on 16^th. January, 2002, C paid little attention to him although she appeared to know who he was. CC was of the opinion that C "closed down emotionally" during contact sessions only to come back to life and normality on her return to her foster carer. Her demeanour there was completely different. There was lots of eye contact, lots of animation, lots of physical contact, smiling and attempts at speech, in marked contrast to her behaviour at contact.

CC was present on the last occasion contact took place on 15^th. May, 2002. She collected C from HF's home and noted her reluctance to come with her. She said 'No' to the suggestion that she should come and see her 'her mum, J.' That remained the position even when it was made clear that she would be brought back immediately afterwards. She did eventually agree to get in the car. On arrival at the Child and Family Centre, she showed no interest in her mother. For once J tried quite hard to get her attention and get her interested in drawing or painting but C did not interact with her and moved around the room with J following and not leading. C began to throw sand about from a sand pit. J did not intervene to stop this despite the obvious risk to the child's eyes. CC required to intervene. At that intervention, C ran to J who picked her up and comforted her. Then she calmed down and resumed playing as though nothing had happened. At the end, C was reluctant to leave the sand pit. J picked her up and began to carry her to the exit. C became distressed, swivelled round and held out her arms to CC. She sobbed, wriggled and moaned until she was away from J and into CC's car. She buried her head in CC's midriff rather than kiss her mother goodbye. When C was convinced that J had left, she relaxed and her body ceased to be rigid. She stopped sobbing. On arrival at HF's home, her whole faced changed, she smiled and ran to HF, thereafter refusing to leave her side.

The children's hearing, having heard the foregoing account, terminated contact on 23^rd. May, 2002. That decision was appealed to the sheriff under Section 51 of the Children (Scotland) Act, 1995, but the appeal was unsuccessful.

C was placed with her prospective adopters on 27^th. May, 2002. She has settled well in their home and is thriving in their care.

CC had prepared production 200, a contact assessment report, compiled from her own observations and those of the social care assistants who had supervised contact, the conclusions of which were that C had no significant attachment to either of her biological parents and that contact with them therefore had little significance for her. She would leave at the end without any display of anxiety on separation. She displayed no upset when her father failed to appear. She was, however, becoming increasingly upset by the contact experience. McL had demonstrated a lack of commitment to contact. J had always attended but the sessions were now causing distress to C. A continuing level of contact which was unsettling and stressful would be counter-productive as C moved from her long term foster carer into the home of her prospective adopters. She had no significant relationship with her siblings.

CC expressed the opinion that purposeful contact with biological parents in a permanence situation can only be productive if the biological parents have given the child emotional permission to move on. There was no sign of such permission being forthcoming in the present case. There was therefore nothing to be said in favour of continuing contact. Continuing contact would be stressful and unsettling generally and would undermine the efforts of the new family to provide a secure and happy environment for C. It would be contrary to her best interests. Continuing contact would be damaging.

The Adoption and Fostering Panel of Dundee City Council considered the case of C on 21^st. February, 2002. CC and HF were both in attendance and both recommended a permanent solution for C. It was the unanimous decision of the Panel that C was in need of permanent substitute care and that this should be achieved by her being freed for adoption. The Panel's reasons were:-

C had been looked after for some time now following an unsuccessful attempt at rehabilitation with her natural parents;

McL specifically had shown an inability to maintain contact and a personal relationship with C;

The nature of the relationship between C and J was such that members of the Panel could not understand the point in continuing it;

Contact with siblings should be open and postbox contact should be available to all the people involved;

C's parents had consistently failed to provide a safe, caring environment for her; instead she had been a pawn in their games and they had placed their own needs before hers; there was no evidence to demonstrate they would change in the future and be able to act as adequate parents; and

There are no other family members in a position to care for C.

On 4^th. April, 2002, in the absence of consent to freeing for adoption from either of the natural parents, the social work department requested a children's hearing which agreed with the permanence plan and at that stage terminated McL's contact. That hearing is required to give advice to the sheriff considering an application under Section 18 of the Adoption (Scotland) Act, 1978, as amended, and did so, recording the following:-

"Over a number of years, C's mother and father have not provided either C or her siblings with proper care or stimulation. Such grounds for referral were established by the sheriff in June, 2000. There is considerable evidence that both C and her brother and sister failed to thrive while with their mother. Her siblings when taken into care suffered from lice, a chronic chest infection as well as grossly waxed ears and poor dental care. C had poor weight gain and was listless when returned to her mother reversed when she was removed to foster carers. Rehabilitation and a huge amount of support failed to make any ongoing improvement in the level of care provided for C at home. A number of reports on the quality of the relationships note that C shows no attachment to her mother and more recently has found contact stressful, taking time to settle afterwards. McL has attended only two contact sessions since October and failed to attend the hearing despite being aware of it. The Supervision Order was continued with C continuing to stay with HF where she is thriving. In view of the advice given above to the sheriff it is agreed that it was appropriate to plan the reduction of contact between J and C to facilitate her eventual permanent adoption. The condition relating to contact was therefore deleted with arrangement left to the Social Work Department and J to agree. In view of McL's lack of recent contact and the planned permanency no further contact with him was made a condition. His drinking and violence were taken into account."

Thereafter, a number of prospective suitable adopters were considered and a Matching Panel was held on 18^th. April, 2002. J and McL declined to have any part in this process. C moved from HF's home to that of the prospective adopters on 27^th. May, 2002. This was a family with three sons. There was a great deal of co-operation from HF and her family to minimise the trauma for C and the move went well. The new family showed a great deal of insight into C's needs and her close relationship with HF. They had no involvement with J or McL other than peripherally at children's hearings.

CC had been to see C in the home of her prospective adopters a few days before giving evidence and described her from that meeting as being a very healthy little girl with a great sense of humour and a great deal of vocalisation. She was attending speech therapy (as HF considered she should have been) to try to help her establish a greater vocabulary and to begin to make sentences. She was gaining weight and height. She eats well, sleeps well, is fully toilet trained and was reaching all developmental milestones. She was distressed to see CC, whom she associates with change, and was very happy to wave her goodbye. CC had not experienced that situation previously though had heard of its occurring, from colleagues. The family were keen to adopt her when she becomes free for adoption. If she did become free for adoption, then it would be appropriate to terminate the supervision requirement.

The Expert Opinion Evidence:

There are in this case two sources of expert opinion evidence namely that of Dr. Valerie Cairns and that of Mrs. Ellenore Foulis. For the avoidance of doubt, in saying that, I do not intend to detract from the expertise of professional social workers who gave evidence, but because all of them to some extent gave evidence about the facts, as opposed to giving opinion evidence having been asked solely to give opinion evidence, they fall into a different category.

Dr. Cairns is a very experienced chartered clinical psychologist. Her academic qualifications include M.A. (Hons) Psych.; Ph.D Neuropsychology. She is an associate member of the British Psychological Society and a member of the British Association for Adoption and Fostering.

She had worked as a psychologist since 1966 with that being interrupted by various career breaks. She had worked with both adults and children. She held a research post at Edinburgh's Royal Hospital for Sick Children where consideration was given to all children being freed for adoption in that jurisdiction. She had also been involved with the children of dysfunctional families. In the last two years, she had been acting as an independent consultant in cases such as the present and had prepared some 40 reports for courts. She had given evidence on a number of occasions as an expert.

In the present case, her remit from the petitioners was to offer an opinion on what, if any, post adoption contact there should be between C and her biological parents and half siblings on the hypothesis that the freeing for adoption petition would be granted. To this end she was given documentation from Dundee City Council which is listed in her report which does not appear to have a production number but which is dated 10^th. June, 2003. She also met with C at the home of her prospective adopters and spoke by telephone with HF. Her meeting with C was on 28^th. May, 2003, the purpose of which was to observe her in her current situation and to discuss her progress with her present carers. C appeared very shy and anxious, dependent upon her current carer for security. Dr. Cairns considered C to be young for her age and wary of visiting professionals given her life experiences hitherto. She said that that was very typical of the children she tended to see and that they tended to associate new professionals with another change in their lives. She observed that C would only wave to her once she was in her car and patently leaving, leaving her behind.

Dr. Cairns felt that C was fragile and that her ability to cope with every day life was conditional on her being in a stable, calm, supportive, loving environment. She felt that this was being admirably supplied by her prospective adopters. She felt she gained a lot of insight from HF. She was of the opinion that C was at risk from any further unexpected change. She had a need for routine. Change would be likely to cause regression, both emotionally and socially. If she were moved, she would find it difficult to form another trusting relationship with an adult. Her prospective adoptive mother was working hard on trying to improve her vocabulary and on comprehension and C needed someone who was prepared to devote time to do that. There was a deficit with her use of language. There was about an eighteen month difference between her ability to undertake practical tasks and her ability to speak and use language appropriately. The difference was marked. She noted that the prospective adoptive father had observed that C had gradually over the year she had been with them extended her 'comfort zone' from one room to the whole house and garden. He had also noted that C still preferred to sit with her back to a wall which is typical of a protective pose. She was impressed with his perception.

Dr. Cairns learned from the prospective adopters of C hoarding food and of her being "too good" at times. Hoarding food quite simply suggested that the child recalled periods when there was insufficient food around when she could not depend on their being a meal on the table. Being "too good" was a phenomenon commonly associated with children who had been in foster care and who were not prepared to push at boundaries in the way of normal children lest they find themselves "punished" by being returned to the unhappy background whence they came. It is a question of confidence.

Both prospective adopters expressed a degree of frustration at having no help and, in fact, nothing but hostility from the natural parents, feeling that there were some issues where they could help, but there was also a degree of insight into their position. It was significant in considering the merit of future contact that the limited interaction between the natural parents and the prospective adopters had been a negative experience. However, she considered that the prospective adopters were a strong couple with the necessary patience and humour which she considered they would require to deal with some of the difficult issues for C in the future.

Dr. Cairns had concluded from her perusal of some of the contact reports and her discussion with HF that C had clearly displayed a growing reluctance to continue contact with her natural mother. HF was plainly of the view that contact had had an increasingly adverse effect on C. Dr. Cairns considered it correct to attach great significance to the behaviour of a child before and after contact more than behaviour at contact.

She made the point strongly that planning the future of any child who cannot live with his or her biological parents should be regarded as an exercise in damage limitation where there were no perfect solutions. It was her opinion and experience that of all the factors affecting the outcome of adoptive placements, age was the most critical and the younger the age at which a child was placed with adopters, the more successful the outcome was likely to be. Being adopted before the age of five increased the chances of success. This opinion was based on both British and international research. All the legal processes that have to be 'ground through' to protect the interests of others, mainly the inept parents, were counter-productive to the interests of the child. The highest priority, where a child could not be looked after properly by natural parents was to find a suitable permanent alternative arrangement. Children's greatest need was for stability and security. It was not only important that they should at the earliest possible age move to a location where they were having good experiences but also that at the earliest possible age they should move away from a location at which they were having bad experiences. Being in limbo was a bad experience and there was a general failure to appreciate just how important a factor that was.

The maintenance of contact with natural parents was much less important than feeling secure with permanent substitutes. A child's security, in the sense of knowing where he is going to be growing up, knowing what the routine is and knowing what to do for security was all far more important to the child than maintaining a relationship with birth parents. In an ideal world, contact would be a good thing but there are so many conflicting factors which tend to make it a bad thing. It would require the most calm, unemotional birth parents to make contact a positive experience, especially if the starting point is that they are opposed to the adoption.

It was important that a child should retain some sense of his origin but that did not require direct contact but could be achieved by indirect means. She considered that a lot of the research on this area was confused and contradictory.

She felt that as children grew older the decision should lie with them as to whether or not they wanted to have contact with biological parents or siblings. Sensible adoptive parents would be sensitive to such natural curiosities and should be able to assist in accommodating them both practically and emotionally.

You could not get a meaningful answer from a child aged three on any of the issues which were of importance in this type of set of circumstances. Overt behaviour did not always reflect underlying emotions and there was a need to observe patterns over a period. On the hypothesis that Dundee City Council's social work department had accurately portrayed in reports the parenting deficits experienced by C then she would have been damaged by these experiences and now required specialist parenting in the sense that those selected to care for her would need to demonstrate patience and sensitivity.

Recent research demonstrated that contact with the birth parents was to be avoided if they did not support the child's placement for adoption. In the present case, the natural parents remained opposed to adoption and the prospective adopters were not unnaturally wary of them. That was not a good basis upon which to promote contact. Contact would therefore be negative and contrary to C's interests. If, as appeared likely, the natural parents tried to undermine the adoptive parents and the value of the adoptive placement, that would be likely, in turn, to cause further distress and damage to C. In this case, it appeared from social work records that the parents had no insight into their own inadequacies and so they would not accept the need for substitute parenting.

Dr. Cairns' conclusions were that it was important to ensure that C had security. The granting of a freeing order would be a step to providing this. There was reason for optimism in C's case because of the quality of her foster care and the care offered by the prospective adopters. She was young and had demonstrated that she could form attachments. She would remain vulnerable on account of her early adverse experiences, her current language delay and her ongoing anxiety about further separation from her current carers. The future would not be problem free. But security in a permanent placement is in C's interests and the positive factors with the present prospective adopters would help to overcome the vulnerability. It would be important for C to know about her background but that did not necessitate direct contact. Security, rather than the precise legal route by which that was achieved, was more important for C. Dr. Cairns believed that adoption was the best means to achieve that security. Her prospective adopters recognised the importance of her knowing about her roots and were committed to being able to provide her with information at the appropriate time but there should be no order for contact. That should be left for C to determine in the future whether she wished to seek such contact. All the signs were that there was no emotional attachment with either parent. It would therefore be contrary to her interests to have any contact with them now. Reinstatement of contact would be dangerous given her vulnerability. It would require her present carers, whom she trusts, to put her into a situation which, latterly, she clearly demonstrated she did not want to be in. That would be a confusing and distressing message for her to have to try to absorb and that was fraught with danger.

In response to cross-examination by Mr. Sharpe for J, Dr. Cairns expressed the opinion that none of the necessary prerequisites for an open adoption were present here. She was unaware of any practice and would not approve of any such practice by which a local authority would, as a matter of course, discuss the concepts of closed and open adoptions with biological parents as opposed to considering what might be appropriate on an empirical basis and considered no criticism could be made of the petitioners' social work department for having not had such a discussion in the present case. She considered that where parenting defects were substantially practical these could be learned. Where they were constituted by a lack of emotional awareness, that was quite different and her experience was that parents suffering from such a deficit tended to think of parenting classes as unhelpful, as apparently the biological parents in the present case did. In any event, there comes a time, quite swiftly in the case of a young child, where if skills have not been acquired for whatever reason, then an alternative course of action is indicated. She accepted that there was almost an inherent conflict for a social work department trying to achieve a permanent solution for a child within a reasonable timescale. She considered that the return of the child to the parents in October, 2000 was an act over over-optimism on the part of the social work department in the present case.

In answer to Mr. Simpson for McL, she commented that while there was a bond between a child and its natural mother, little importance should be attached to that bond if the mother, for whatever reason, was incapable of meeting the child's needs. If the mother was unable to meet these requirements then what was important for the child was to be "attached" to a substitute carer who would meet those needs, preferably a permanent substitute. The significance of biological factors was secondary to the importance of effective nurturing.

In the present case the necessary interventions which had occurred had compromised the child's relationship with her biological parents. What a child of C's age needs to know is that the same person will be there day in day out to look after her, to feed her and to keep her safe and warm. There is an immediate need for a small child to have security and not to be exposed to further adverse circumstances. Any change now would have an adverse effect on C. A move back to incompetent parents would have a profoundly adverse effect. Hoarding food, for example, was a rare phenomenon for a three year old to engage in. For a small child, not being fed when hungry is a profoundly adverse experience.

It was very clear from the evidence of this witness who I found credible, reliable, experienced and full of common sense, that there would be significant damage to this already vulnerable child were she obliged to return to the care of her biological parents. It also seemed to me that, in the light of her expert evidence about being able to draw conclusions from a pattern of behaviour, standing all the evidence in the social work records about a lack of attachment, reflected in the oral evidence of SR, JF, most particularly HF and also CC about C's growing unhappiness about attending contact sessions and the lack of any normal signs of emotional attachment between C and either of her parents or any of her siblings, I could conclude that by her behaviour thus observed consistently, C was expressing a view about what she wanted to happen, namely that she did not want to return to her biological parents.

The second expert witness was Ellenore Foulis who was appointed by the court as curator ad litem and reporting officer in this case. Mrs. Foulis is a 48 year old family law practitioner well known to this court as an expert in that field and who has served this court well on many occasions as curator ad litem, reporting officer and safeguarder in a variety of types of family proceedings. She has three children of her own. In this case, she had seen C on three separate occasions, once on 5^th. June, 2002 and again early in 2003 and in October, 2003 shortly before she gave evidence. She appreciated that her function here was to consider whether it was in the best interests of C to be freed for adoption. Had what had happened to her in the past been of such a degree that it merited her being freed ? While she had formed a positive view of the prospective adopters, what was more important in the present case was C's own history and whether than demonstrated that grounds for dispensing with the consent of her biological parents to her being freed for adoption existed.

It was a surprise to Mrs. Foulis to learn that after her initial report had been submitted, McL and J had entered into a parental rights agreement in terms of Section 4 of the Children (Scotland) Act, 1995. There had been no indication of any intention to do any such thing prior to the circulation of her report.

Mrs. Foulis found C to be a fragile child quite easily upset by the arrival of strangers. Her speech was such that it would not readily be understood by someone who was not in frequent contact with her. The first time Mrs. Foulis appeared, C ran away. She was more confident the second time and sat beside her. On the third occasion, however, when Mrs. Foulis arrived, she observed that C's eyes filled with tears. She was quite happy to see her go. She formed the impression that, other than the speech difficulties, C was a bright, alert, intelligent, little girl.

Mrs. Foulis had had a relaxed discussion with J and McL together about the process of freeing for adoption and about her functions and duties especially as reporting officer. There was no aggression towards her. She did not feel that J did not understand the issues. Both made it abundantly clear that they were opposed to freeing for adoption. They both considered that they had been treated unfairly by the social work department. J considered that contact had continued to be a worthwhile experience for C notwithstanding being told by CC that C was not eating or sleeping properly after contact sessions. J tried to explain, without making much sense, her theory as to why C had not put on weight while in the care of McL and J. They presented very much as a couple, having been living together continuously since January, 2001. It was a recurring theme of J's that whatever she did never seemed to be good enough for the social work department.

McL was concerned with his own feelings and appeared to have no regard for the interests of the child. He found contact upsetting - therefore he was not going. He could not keep his temper at children's hearings - therefore he was not attending them. He considered that, since he no longer drank at home, he had resolved his drink problem. He wanted nothing further to do with social workers, continually referring to them as "bastards." He said he would not work with them in the future. J had an issue with CC and would not work with her but made positive references to other social workers.

Mrs. Foulis had arranged to meet them at their home and found it to be very tidy. Only the two of them were living there.

She also spoke with HF and her husband. They had been concerned about the effect that contact was having on C and had kept a diary recording significant episodes. They felt this had become significant by February, 2002. C would need lots of reassurance on return from contact and was becoming upset during the night. HF drew the contrast first between C being moved into her own bedroom, which had been without any bother and also with her introduction to her prospective adopters which had gone very well. HF was convinced that J was the problem. Mrs. Foulis was also told by HF and her husband that when she came to them at first, C was wary of men and excited by the presence of food. HF said "it was as though she was unaccustomed to seeing food." Otherwise, she was an easy child to care for who ate and slept well and settled very well into their household.

Mrs. Foulis formed the impression that C was now very settled with her prospective adopters. She seemed very much at ease with the various members of that household and there did not appear to be any negative aspect to that placement. There was an eleven year old boy who had mild learning difficulties but who functioned well socially and who appeared to be delighted at the prospect of having a wee sister. His problem was educational and not social and he presented no risk to C.

The prospective adopters had photographs of McL and J and C knew who they were. She kept them in a box and that appeared to be where C considered they belonged. The current carers understand the present legal process and are anxious not to be seen to be influencing it though they are also anxious, inevitably, about the outcome.

Mrs. Foulis was firmly of the view that C should be freed for adoption and that there should be no further contact with her biological parents. She considered that McL and J had failed to safeguard and promote C's welfare and she reached that view having spoken to a number of sources and read the reports. She was concerned about the length of time this child had been in limbo, echoing one of the main concerns of Dr. Cairns. She asked the question how long was the child supposed to wait while the natural parents strove to get their lives into some semblance of order so that they might be able to bring her up adequately. That questioned seemed to me to be the crux of the matter. Mrs. Foulis felt strongly that C was at an age when her future required to be settled. Lack of care, failure to thrive and the state of being passed between the parents like a parcel were all significant deficits gleaned from the social work reports that indicated that the child should be freed for adoption on the grounds both of unreasonable withholding of consent and on the grounds of neglect. She had been unimpressed with McL and J as potential parental material. They both accepted that some of their behaviour had been in conflict with C's welfare.

Mr. Sharpe for J called Lynne Cameron to give evidence essentially about the failure to permit J and McL to attend at the sessions of the Adoption and Fostering Panel of Dundee City Council and the possible human rights implications of that. These issues have largely been overtaken by the promulgation of the decision of the Inner House of the Court of Session in Dundee City Council v M (supra). However it seems right to me to include a brief reference to her evidence here. Although it was to some extent evidence of fact, the bulk of her evidence was about social work practice based on her eighteen years experience as a family social work practitioner and in particular in relation to the post she had just vacated as Senior Officer in adoption and fostering. She made the point that the Adoption and Fostering Panel does not have any function to re-assess the quality of the information being supplied to it though it does have to be satisfied that it has sufficient information to enable it to reach a conclusion. She made the valid point in this context that in every case of this type there will be a balance to be struck between accepting the considered assessment of an experienced social worker and deferring a decision and calling for an independent review, given the needs of the child for early resolution, and the level of stress generated by the very nature of such investigations.

She explained that it remained the petitioner's policy to exclude natural parents from the deliberations of the Adoption and Fostering Panel. She was aware of only two local authorities who took a different approach and she would be against change purely for the sake of change. She took the point that much of the information being disseminated in this and other similar cases would originally have come filtered through the single source of the social worker in the field and that there might therefore be something to be said for hearing the parents' point of view on the content of reports made to the Panel. She accepted that social work departments generally were grossly understaffed. She recognised that there were aspects about the way the present case had been handled that could be improved upon, but that required the devotion of appropriate resources to the social work department. She accepted that there had been major shortcomings in the present case but did not consider that the outcome would have been different had these not been present.

In this case, as in every case, the recommendation of the Adoption and Fostering Panel then went to the Agency Decision Maker. He agreed with the recommendation. The matter, with a child subject to a supervision requirement, then goes to a children's hearing where there is obviously an opportunity for challenge and review of the decision if appropriate.

Evidence of the Respondents:

J gave evidence confirming that she was C's mother and that she was also the mother of S, P and JH Jnr. She confirmed that she remained opposed to C being freed for adoption. She accepted that when the child protection order was obtained on 26^th. May, 2000, her lifestyle had been chaotic. She was "between" JH Jnr and McL. It was necessary for C's welfare that she had been taken into care then.

She understood that the social work department would then work towards rehabilitation and that she should learn new parenting skills. The six weeks at Beechwood Child and Family Centre, however, was all about how to make up a bottle. They showed you how to level the milk with a knife, how much water to put in and how to make sure it was not too hot. That was about it. They did not do classes in hygiene. They did not teach her how to use a hoover. They did not teach any domestic science skills. They did not carry out any assessment of the skills she had gained. After C was returned, they would come to the house for about twenty minutes at tea time and just sit there. She claimed to have been able to make up bottles to their satisfaction. She was not given further advice about diet or what foods to buy. SS, the first foster carer, had told her about some boxes of powder to which you add water so you get porridge or baby vegetable stuff, as she described it.

She seemed unable to recall a number of significant aspects of the way things developed. She had no clear recall as to how she came to have the tenancy of the modernised flat. She said she did not think that enough had been done to improve her parenting skills which by inference appears to be an admission that her skills remained deficient. She claimed never to have been told by social work staff that they did not like the way she was handling C or the way she was going about doing anything. When they came to the house, she considered that they were only coming to make sure that she was there and was actually feeding the children, which she was. They would talk to S and P about school. Then they would leave. They never looked at the bedrooms or the kitchen.

SR would also appear from time to time usually late afternoon so she could speak to S and P. She did not inspect the house either. There was no discussion with her about what the children were getting to eat or about hygiene or other domestic skills.

At this time after C had been returned to their care in October, 2000, she considered her relationship with McL was good. One of them would get C up around 09.00, change her, put on clean clothes, put her in her bouncer and go and make her bottle. Generally, she would have porridge and J would feed her. McL would then play with her while J did the housework. McL stayed overnight, every night. She would make the beds, clear up the living room and kitchen and do the washing. She would hoover and polish. McL would sit and play with C and they would watch the Telly Tubbies or the Tweenies. C was a happy baby. Sometimes J and McL would walk up to J's mother's house with C in the pram. J knew when C was hungry because she became grumpy. There was no discussion about her not putting on weight and she was rarely weighed. Nor did SR complain about the state of the house. J spoke about Christmas, 2000 and how they had a tree and all the children got presents. C had got a book with pictures in it but she could not remember what they were. There was no question of her going back to JH Snr. McL appeared settled and there was no indication of any likelihood of his leaving. Their relationship was good then and remained good. The police had come once or twice. She thought that had been because of the shouting. Both of them shouted. McL did drink but not in the house. She did not drink. The police never took McL away. Twice he had come in about midnight and woken C up. Twice he had hit J. He had punched her on the arm. She saw the health visitor once a week and she weighed C but never told her how she was getting on. The health visitor never explored the rest of the house either. J claimed never to have failed to attend for clinic appointments unless C was unwell. C had dry skin. She got a bath three times a week. She denied leaving C in the sole care of S. Sometimes if she had been fighting with McL he would phone SR or other people at the social work department and make spiteful comments about her. She did not know why he did that.

She could not recall any time when McL had assaulted P or S, though she remembered him hitting them. He slapped them for being cheeky. He did not punch or kick them. Nothing had happened the night S complained to the police about being kicked. She could not recall ever telling SR that McL had gone for good. Then J decided that there had been an occasion when McL had assaulted S in her bedroom. He had pushed her off the wall, causing her to bang her head. That had happened because S came home late with C. S went to the police and she and McL had gone to Lochee Police Station trying to find her. S had been with J's sister from that night on until she went into foster care. McL had a drink in him that day. He had most days but he was not violent all the time. He was not violent towards P but he had hit him. Sometimes he had hit him a lot when he was bad. One time P threw a fork at him but both S and P liked McL. P does not see him since he moved into foster care.

McL did not hit P with a snooker cue. P was lying about that but J did not know why. She recalled one night that S declined to go to bed when instructed. "She likes staying up." To encourage her to bed, McL had struck her on the back of her head and screamed at her to "get to her fuckin' bed." She still would not go and he continued to shout and next thing the police appeared. They asked J if she wanted him charged and she declined. "It wasn't that serious." Asked why she had not given evidence about this earlier when asked about assaults on S and P she replied, "I canna understand." Then, having been warned about the consequences of prevarication and having had the contents of the referral to the children's hearing which she had accepted put to her, she suddenly remembered that McL had kicked S in the hand and on the leg on 28^th. February, the incident which gave rise to the second child protection order. She then said, "I should have told you that the first time you asked me. I didn't really want to with McL sitting there. I was at that time scared of McL. In case he goes home and starts shouting at us. He has assaulted me before about things he's not happy about on other occasions than those I've told you about to-day. I have not told you about these because I am scared of him. These things happened after C had been sent back to us. I didn't tell SR about an assault on my daughter by my boyfriend because I'm scared of him."

As can be seen from the foregoing, J was unable to give evidence in a consistent manner. Her initial effort at painting a picture of domestic bliss rapidly fell apart as her evidence was tested. At the end of the day it was difficult to regard her as credible or reliable but on one view of her evidence she and her older children were regularly assaulted by her regularly drunken cohabitee, McL, and that was consistent with the information being made known from various sources to the social work department. The picture was not a happy one.

Cross-examined by Mrs. Evans for the petitioners, she accepted that she had had little success at getting her older children to obey her instructions and that her attempts at discipline were ineffective. She accepted that she was too frightened of McL to do anything effective to get C, as a newborn baby, living with her and not him. She described how he shook all the time when he tried to refrain from drinking. Despite what she had said earlier, she now considered that she was not at risk from McL. She had been confused during her earlier evidence and found that she was often confused.

She did not think that she had a learning disability though she recognised that she had been "slow" at school. She thought she had been sent to Fairmuir School because of her poor attendance at Menzieshill High where she went at first for her secondary education.

She did not understand that the new flat that she had obtained the tenancy of was anything to do with C returning to her care. She considered that the level of support that she had had, especially when C was returned to her, was inadequate.

She was a thoroughly unsatisfactory witness, giving evidence that was self-contradictory and in important aspects, particularly with regard to the behaviour of McL generally, her evidence was simply not true.

McL gave evidence that he was 31, unemployed and had been cohabiting with J for the last three years. There had been animosity towards him on the part of JH Snr. when he and J had initially become sexual partners. He thought he had had 'not a bad relationship' with S and P.

He claimed to have had no prior involvement with social workers and to have got on well for at least some of the time with SR. He admitted phoning her and others at the social work department at times "just to get at J." He admitted that he had a lot of trouble with drink just after C was born and was drinking more or less daily. He claimed now to have that under control.

He had had a previous partner who had borne him a daughter, Debra-Lee. He did not consider that social workers required to know about that. He admitted he had been drinking on the evening on which he had threatened SR. He admitted hitting P but not with a snooker cue. He denied ever kicking S other than on the bottom of her leg. Otherwise, all she ever got was 'a slight tap.'

He considered the parenting classes to have been a 'waste of time.' All that was ever done was being shown how to make up a bottle.

He had stopped attending contact because it was 'too emotional' for him but he had tried his best to be a perfect father.

Cross-examined by Mrs. Evans, he admitted that he had been poor at attending school. He admitted what appeared to amount to a congenital distrust of social workers without offering any justification for his attitude. He admitted that he had made complaints about J's ability to look after her children, claiming that he had done this 'mostly while under the influence of alcohol.'

He considered that when C was returned that was the social work department setting him and J up to fail. He accepted that he was abusing alcohol at that time and was thus unable to care for C properly. He considered that JF had tried to 'blackmail' him into putting C up for adoption. He would be reluctant to co-operate with social workers in the future.

He then went on to reveal that he had had a second child who had died after falling from a tenement window in Barrhead. This had happened in his sister's house about 4.5 years ago. He had been living in Dundee at the time. He claimed to have told SR about this.

He seemed to accept that C lost weight during her first few weeks of life because she was not being fed properly. He accepted that she put on a lot of weight when she was placed with the foster carer, SS, and that that suggested that she had not been being properly fed.

He said that he had not worked for fourteen years and had been diagnosed as suffering from epilepsy. He accepted that he had not taken proper care of himself and that it was therefore hard to see how he could be trusted to take care of C.

He admitted that there were times that the house was filthy. J did not clean it nor did she clean clothes or bedding. He admitted that that was a progressively worsening situation.

He admitted that all contact with P had terminated since he had gone into foster care but that S visited regularly and usually stayed overnight at the weekend, but was otherwise remaining in foster care.

It appeared from his evidence that the only thing that might have changed since the second child protection order for C had been granted was that he might have managed to exercise some control over his abuse of alcohol. He seemed to have no appreciation of the changes through which C would have gone in the meantime or how he and J with their continuing inadequacies could successfully care for her now. His concern, in many ways apparently a genuine rather than contrived concern, was how to redress his loss. I regret that nothing that he said persuaded me that he would be able to care for any child let alone one who had previously suffered significant emotional damage on account of his earlier failures.

I had grave reservations about his credibility and reliability and on the critical issues where his evidence was at odds with that offered by the petitioners I preferred the evidence particularly of SR and JF and the contents of various contemporaneous reports.

Submissions for the Petitioners:

Mrs. Evans, under reference first of all to Sheriff Court Practice by Sheriff I.D. Macphail, as he then was, and in particular to chapter 28 of the second edition submitted that the process of adoption was regulated by the Adoption (Scotland) Act, 1978, as amended, mainly by the Children (Scotland) Act, 1995. Adoption proceedings were sui generis. She quoted the passage at para. 28.02 in which the learned author states:-

" Where a local authority wishes to place a child for adoption, without the agreement of the child's parent or guardian, it must generally make an application to the court for an order declaring the child to be free for adoption to determine whether, in principle, adoption is the appropriate course. Freeing for adoption is the procedure which involves a determination in principle whether a child should be adopted before there is any transfer of parental rights and parental responsibilities to adopters."

The proper approach for the court in making this determination, she said, was first to decide whether, as a matter of fact, one of the grounds contained in section 16 of the Act for dispensing with parental consent existed and then if it did, the test set out in section 6 of the Act, which involved an exercise of discretion, should be applied. All that was subject to the over-riding principle that, as with other orders in relation to children, no order should be made unless the court considers that it would be better for the child that an order should be made than that no order should be made, which is clearly a further exercise of discretion requiring a balance in favour of making the order before one could be made. Section 6 sets out the main principles to be applied in adoption proceedings, namely that the court must regard the need to safeguard and promote the welfare of the child throughout her life as the paramount consideration; the views of the child must be taken into account so far as practicable and regard has to be had to the child's religious persuasion, racial origin and cultural and linguistic background.

It was suggested at para.28.84 that "great weight" should be given to the report of the curator ad litem who has the opportunity to see the parties in an informal way. I would not demur from that generality but it perhaps becomes less vital in a case where proof takes place over some twenty five days during which I had ample opportunity to see the parties. Nonetheless both the reports and the evidence of Mrs. Foulis are very important in this case.

With regard to the European dimension, it was submitted that I am required to apply the Scottish legislation and only resort to Europe where there was ambiguity. I was referred to T, Petr. 1997 SLT 724 at pp 733H-734H. Things have perhaps moved on somewhat since that decision was promulgated but most of the potential difficulties have been resolved by the Inner House decision already referred to of Dundee City Council v M.

The Civil Evidence (Scotland) Act, 1988 Section 2 applies to adoption and freeing for adoption proceedings and therefore it was competent for the court to consider the contents of affidavits and other documents. It was submitted that I should have regard to the contents of the productions insofar as these had not been challenged.

If I were making an order freeing the child in this case for adoption, I should, having regard to section 12(6) of the 1978 Act, terminate the supervision requirement to which she currently remains subject.

The child, subject to the freeing application, must have been placed for adoption or it must be likely that she would be so placed. In the present case, the child has been placed with prospective adopters since May, 2002.

If an application to free a child is granted, parental rights and responsibilities in that child are then transferred to the local authority leaving the natural parents with no role to play and no rights available to exercise in connection with any subsequent adoption or to make any other application to the court in relation to the child.

There is no power to insert any terms and conditions in an order declaring a child free for adoption. Local authorities are constrained to make freeing applications in disputed cases - see, for example, P v Lothian Regional Council 1989 SLT 739.

It was, accordingly, Mrs. Evans' submission that I should pay particular attention to the reports prepared by Mrs. Foulis and to her evidence. She suggested that a similar position pertained in relation to the reports and evidence of CC but, with respect, that cannot be, given that she was not appointed by the court as an officer of the court. She has to be assessed in the same way as any other witness. Mrs. Evans submitted that, while efforts had been made by counsel for the respondents to undermine the professionalism and independence of the social workers involved in this case, that was a diversion from their inability to attack in any meaningful way the factual contents of the reports which had been prepared from time to time. She made the point that the case had not solely involved one social worker, though in reality when it comes to a determination of the facts critical to the issue whether grounds for dispensing with consent exist, the evidence of SR is critical given her central role relative to the welfare of C at that time. She suggested that the witnesses for the petitioners and, in particular, the local authority staff, had been aware of human rights legislation and had acted in accordance with its sentiments. As will already be obvious, I have significant reservations about the propriety of that statement. All the social work professionals had to work "under the auspices of" the children's hearing system, she submitted. There were, therefore, numerous checks and balances in the process of determining the fate of the child and that could not simply be driven by one individual.

She submitted under reference to section 2 of the Civil Evidence (Scotland) Act, 1988 that I should have regard to the productions lodged. She especially referred to the four affidavits which had not been the subject of any opposition or observation in the course of the proof. For guidance on how to approach this and the other documentary material lodged she directed me to McVinnie v McVinnie 1995 SLT (Sh. Ct.) 81 and Glaser v Glaser 1997 SLT 445, as well as Sheriff Court Practice, 2^nd. edition at para. 28.112.

She then turned to the statutory requirements on which she said the court has to be satisfied, namely:-

that the child is placed or is likely to be placed for adoption - there was ample evidence that C had been matched with her prospective adopters.
That the respondents had been given an opportunity to make a declaration that they prefer not to be involved in future issues pertaining to the adoption of the child - it is plain that J was given such an opportunity by CC and that at the material time McL had no parental rights or responsibilities. In any event, it can be inferred that McL would not have made any such declaration.
That, except for what might be extracted from the evidence of others, there could not have been any formal extrapolation of the views of the child from the child given her age.
That the parents have either agreed to the adoption or that their agreement should be dispensed with; and
That, in terms of section 6 of the 1978 Act, the court has regard to all the circumstances, having regard to the need to safeguard and promote the lifelong welfare of the child as the paramount consideration, having regard to the views of the child, the child's religious persuasion, racial origin and cultural and linguistic background. None of these latter factors had been raised as an issue in the present case. The curator ad litem was clear that the child was happy in her current environment. Section 24(3) required that the court should not make any order unless it considered that it would be better for the child that an order was made than that no order should be made. Here the respondents were unable to provide the child with a safe and stable home environment due to their poor parenting skills, lifestyle and associations and that they cannot provide the child with the safety and security that she needs. Thus the submission was that the most suitable way to promote her welfare throughout her life was to place her with a permanent substitute family and this would be achieved by adoption once she was free to be adopted. This would give the child an opportunity to have a normal family life. To do this would be in the best interests of the child and therefore the balance favours the making of an order rather than not making an order.

The grounds for dispensing with consent were:-

that agreement is being unreasonably withheld;
that the parent has failed without reasonable cause to fulfil one or other of the following responsibilties in relation to the child -

the responsibility to safeguard and promote the child's health, development and welfare; or
if the child is not living with him, the responsibility to maintain personal relations and direct contact with the child on a regular basis; or

has seriously ill-treated the child, whose reintegration into the same household as the parent or guardian is, because of the serious ill-treatment or for other reasons, unlikely.

Mrs. Evans next referred to Lothian Regional Council v A 1992 SLT 858 and the two stage exercise through which the court has to go therein described, namely (1) is one of the foregoing grounds established and (2) if so, is it in the child's best interests to make the order.

She then turned to the meaning of "unreasonably withholding consent" and directed me to the judgments in AB, Petr. 1973 SLT (Sh.Ct.)49 and A v B 1971 SC 129. The test was an objective one. She further referred to the terms of section 6 and D v F 1994 SCLR 417, submitting that the test was whether a reasonable parent would in all the circumstances have withheld consent.

She directed me to the passage at pp 146 - 149 of Wilkinson & Norrie, 2^nd. edition, Parent & Child on how to apply that test to particular circumstances. Her submission was that no reasonable parent would withhold their consent in the circumstances which had occurred here to their child being freed for adoption. This, she said, was against a background of the events immediately after C was born, leading to her being taken into care under a child protection order when she was about eight weeks old. That was followed by the unsuccessful attempt at rehabilitation with her parents, leading ultimately to a second child protection order being granted when she was eleven months old. The evidence demonstrated that J and McL had failed to fulfil their parental responsibilities, to provide a routine for a new born child, to provide a consistent home, to feed the child properly and to have the necessary equipment to fulfil obligations to a new born child. They had also exposed her to hostility between them and other persons and used her as part of their agendae rather than taking care of her as an independent individual. Their lifestyle was chaotic. J had demonstrated an inability to care for children, having regard to the histories of her three older children. She had a limited capacity to act as a parent and had not benefited from the advice given to her by professionals over a long period of time. Neither she nor McL had been able to acknowledge their failures or learn from them. They could not alter their parenting styles. Therefore it was in the best interests of the child that her future be secured by becoming a member, permanently, of a family who would care for her effectively and where she would receive the stability, safety and security she needs and deserves. If McL and J were reasonable and objective, they would see that.

In relation to post adoption contact, which might be an issue relevant to the exercise of discretion under section 6, there was no evidence in the present case of any bond worth preserving. All the evidence was to the contrary effect that at least latterly contact between C and J was a distressing and disturbing experience for C and there was other evidence that suggested more generally that there was no benefit to C at any time from contact with either natural parent or with her siblings. McL's attendance at contact was erratic but there was no indication from C that he was missed. Some of the sessions were chaotic with too many adults and children present. At some S in particular did things which C found frightening and would not desist when told. HF had described vividly how C would cling to her on return to the foster home, would have trouble eating and sometimes would wake up at night plainly disturbed. This would only happen around the times of contact, C otherwise being good at both eating and sleeping. This is supported by the affidavits of the social care assistants, Kay McMahon, Jean Bennett and Maureen Petrie, all of whom observed a lack of affection between mother and daughter in particular. She founded strongly on the expert opinion of Dr. Cairns who described the move to permanence as an exercise in damage limitation and stressed the importance of adoption at the earliest point in time if it were to have a chance of being successful. This meant, inevitably, that efforts at rehabilitation had to be time limited. It was more important that the child should have security with an effective substitute than maintain contact with a biological family if all that achieved was the maintenance of the biological connection. It was important that a child should be aware of his or her origins but that did not necessitate personal contact where there was no value in that contact. Dr. Cairns had given evidence that it was vital to use whatever evidence was available from past history and observations, including current observations, to draw inferences about what would be in the best interests of the child. It was her expert opinion, albeit predicated on the hypothesis that the content of the reports prepared by social workers were accurate, that C had been the victim of poor parenting. If that was right, then she now required sensitive handling to avoid further damage. Recent research suggested that, if the biological parents did not accept the merit and propriety of an adoption, then continued contact was likely to have the effect of undermining the security of the adoptive placement. It was essential to provide C with security now. If she got that, there was reason for optimism that she would develop into a mature adult, but she would remain vulnerable. The prospective adopters appeared to have a good understanding of the difficulties and appeared to be well placed and motivated to give C that chance. The resumption of contact with her biological parents would be damaging. It should be left open to C to make contact in the future should she desire to do so and at her own pace. The prospective adopters understood and appreciated the importance of making sure that C knew where she had come from.

CC with her experience was also of the view, especially given her personal experience of what had happened on the last occasion on which there was contact, that it would be damaging to C if contact were to be resumed.

Reference was made to the unreported decision of Sheriff A.M. Bell in City of Edinburgh Council v MH and MH, unreported, Edinburgh Sheriff Court, 23^rd. June, 2000.

J and McL had remained hostile to the social work professionals who had been involved in the case. It may be that they had managed to resolve their differences and live together since March, 2001, though their differences seemed to be many and various prior to that date, but it was worthy of note that none of J's other children had returned to live with them. McL did not understand the need to control his own feelings for the sake of a child. Hence his reason for giving up attending at contact, because he got too upset. He seemed to have no appreciation of the cumulative effect of the child not seeing him over a period of time and seemed to think he could just take up where he left off. This was to be contrasted with the obvious care and attention being devoted to the child by the prospective adopters. The hope, therefore, of a resumption of contact was not a valid reason for withholding consent to adoption.

Mrs. Evans then turned to the ground of persistently failing to fulfil the responsibility to safeguard and promote the child's health, development and welfare and to maintain personal relations and direct contact with the child. McL had failed to maintain direct contact with the child. His right to contact was terminated in April, 2002 as he had only attended once at contact since October, 2001.

As we have already observed, in the case of McL, he had no parental rights until he entered into the parental rights agreement in July, 2002. When a children's hearing makes a supervision requirement under section 70 of the 1995 Act it is not conferring any parental right on anyone by permitting contact to take place but is rather requiring the child to comply with a condition of the requirement - see section 70(3)(b). The fact therefore that McL appears to have failed to fulfil a parental responsibility could not justify dispensation with his consent under this ground because he did not have a parental right or parental responsibility to maintain personal relations with the child at the material time, or any other parental right or responsibility. McL's failures to attend for contact are, however, relevant when it comes to considering the reasonableness of his refusal to consent.

The same applies to any allegation that he failed in the parental responsibility of safeguarding and promoting the health, development and welfare of C. He has no such parental responsibility until he enters into the parental rights agreement in July, 2002, since which date he has had no contact with the child, so he cannot be held to have failed to fulfil a responsibility which is not incumbent upon him.

That of course leaves the position of J who has, by virtue of motherhood, all parental rights and responsibilities vested in her. She cannot be said to have failed to maintain personal relations with the child, at least in the physical sense, as she attended all contact sessions until contact was terminated. No argument was advanced that the quality of that contact was so poor that it did not amount to the maintenance of personal relations and in the absence of such argument it is not for me to explore that possibility any further, in my opinion.

However, there is a large volume of evidence from which it would be possible to conclude that she failed in her parental responsibility to safeguard and promote the child's health, welfare and development. The failure, in terms of the statutory provisions, has to be persistent. That had been interpreted in G v M 1999 SC 439 as meaning "of enduring significance." In my opinion, that, however, has to be considered in the light of the expert evidence about the need to make decisions in as short a time scale as possible and that a particular failure may be of enduring significance, at least on the balance of probabilities, can be inferred. It is clear from the affidavit of the prospective adoptive mother, and from the evidence of HF and the report of Mrs. Foulis, that C was always excited about the prospect of food and anxious to ensure the availability of future stocks so that it is a reasonable inference from that behaviour taken along with her acknowledged failure to gain weight properly while in J's care that J failed to safeguard and promote her health by not feeding her properly. C's speech difficulties do not appear to have any organic cause and again it is a reasonable inference that that is attributable to the lack of interest and stimulation from J. It remains to be seen of just how much enduring significance that may be. The same applies to her exposure to unhygienic conditions and to violence and disharmony in the home. When C was returned after the initial child protection order J did not co-operate in taking C to clinic appointments with the health visitor, in securing that all inoculations were performed or in taking her to a mother and toddler group for stimulation. She patently failed the test, subject only to the consideration of "without reasonable cause."

Mrs. Evans then dealt with the suggestion that McL and J had received insufficient support from the social work department. The contrary was true, she said. It was them who had failed to co-operate with social workers. J was given a considerable amount of support, both practical and emotional, but that did little to effect change. She was encouraged to part company with the two men whom she claimed were making her life miserable and SR assisted her to obtain accommodation through Womens Aid only for her to give McL the address. Further efforts were thwarted by her not living in the accommodation SR managed to get allocated to her. She was eventually allocated a completely refurbished flat fully equipped with new equipment which would enable a family to operate comfortably. Within months, the flat and contents were wrecked. J and McL were impervious to professional assistance.

It was suggested that J had learning difficulties but no evidence in support of that claim had been led. However, there was a body of evidence that she had some degree of capability but that she was simply unwilling to follow advice. She had succeeded albeit not very well in bringing up three other children. In any event, it had always been the intention of the social work department to return C to J and McL as a couple, not as individuals. No reasonable cause for the failures had been demonstrated.

She then addressed the suggestion that had run through cross-examination that McL and J were set up to fail by the social work department. She regarded that as an inappropriately emotive suggestion devoid of evidential support. The court should be in no doubt about the integrity of the social workers involved and should accept that at all times they were acting in good faith in an effort to reunite this family. It may be that errors were made - given the pressure and limited resources that would be not altogether surprising - but the suggestion that there was a deliberate ploy to create a situation in which this couple were bound to fail was ludicrous and unfair.

It would have been wrong to engender a culture of over-dependency which would have done more harm than good in the long run. Either they could address the practical deficits quickly or they could not, in which case an alternative solution would require to be found.

Finally, she turned to the ground of serious ill-treatment of the child. She submitted that a child could be ill-treated by commission or omission. When the first child protection order was granted, C was found by Dr. Dewar, a consultant paediatrician, to be suffering from severe neglect and failure to thrive. There was evidence about the condition of the house being filthy and wholly unsuitable for a new born child and about a general failure on the part of each of the parents to provide her with a safe, stable environment. C's reintegration to the household was thwarted by their failure to co-operate with social work professionals. McL, in particular, would have nothing to do with social workers and had influenced J to take up a similar position. The emergence of his violence towards the other children was an additional factor rendering reintegration unlikely. I should find that this ground was also made out against both parents.

The court, she continued, then has to consider whether, if any ground for dispensation is made out, it is in the best interests of the child to make the declaration freeing the child for adoption. It was Mrs. Evans' submission that, standing all the professional evidence against the parents, but particularly that of Mrs. Foulis, the curator ad litem, the court could come to no other conclusion but that making a freeing order was in the best interests of the child.

Mrs. Evans then turned to consider matters arising from the application of the European Convention on Human Rights. She firstly directed me to the judgments in Johansen v Norway and K & T v Finland, of which, she said, the former was the more important. The European Court accepted that Norwegian procedures for taking a child into care were in accordance with Norwegian law and were in pursuit of a legitimate aim. It was accepted that there were circumstances where the interests of the child must override the interests of the parent.

In the present case, one area of criticism libelled at the petitioners was their failure to permit the parents or their legal representatives to attend at and address the Adoption and Fostering Panel. This criticism fell to be considered in the light of the decision of the Inner House in Dundee City Council v M where the judgment had been issued on 27^th. February, 2004. The submission that the petitioners were open to criticism in this respect was based upon a mistaken understanding, she submitted, of adoption law and practice. In the present case, there had been a number of major decisions. Two child protection orders had been granted leading to associated procedure before the children's hearing, leading, in turn, to a named place supervision requirement being made. The respondents had a right to be heard in these proceedings and had rights of referral and appeal as appropriate to the sheriff if they did not accept the decisions. They had, under section 73 of the 1995 Act, a right to request a review of the named place supervision requirement and a right of appeal to the sheriff if they did not accept the review decision. In this case, no decision made by the children's hearing has been successfully appealed.

Then there is, of course, the present petition in which the ultimate sanction of freeing for adoption is sought. The respondents had a right to oppose this petition, which they had exercised, with the benefit of the assistance of counsel over a very lengthy hearing. They had had ample opportunity to present evidence and argument to the court. They would have rights of appeal against the ultimate decision of the court were it to be unfavourable towards them. The only effect of the decision of the Adoption and Fostering Panel was to determine to recommend that the permanent solution for C should be adoption as opposed to any other form of permanent solution. From the legal standpoint of the parents, nothing turned on that decision. In particular, they had not been prevented from opposing the petition for declaration of freeing for adoption.

The Adoption and Fostering Panel was a creature of statutory regulation. Those regulations did not give natural parents a right of audience. The proceedings of the Panel were not adversarial but advisory. There was no basis for an argument that the procedures generally have been prejudicial to the respondents or that their rights under the Convention have been violated. The specific issue of their not having been invited to appear before the Panel had been the subject of a preliminary debate in this court before Sheriff Ian Dunbar whose interlocutor of 20^th. January, 2003 in effect allowed a proof before answer. The Panel did not alter nor did it have the capacity to alter any of the parents' rights or responsibilities - bearing in mind that only J had those rights and responsibilities when the Panel convened - and the parents were kept informed of the outcome. She also referred to Sheriff Dunbar's observations in his judgment and to the decision of Sheriff N.M.P. Morrison Q.C. in City of Edinburgh v D 2001 SLT 135. She submitted that the balance was overwhelmingly in favour of the child.

Rounding off her submissions, she said that it was plain that adoption was the most advantageous way forward for the child given the range of options otherwise open. Reference was made, in particular, to the evidence of Dr. Cairns. Dundee City Council Social Work Department had acted with the best intentions and had used its best endeavours, having regard to resource limitations and the constraints of the real world. Any flaws in their actions, ascertainable with the benefit of hindsight, do not undermine the fundamental conclusion that it is correct to free C for adoption. One error, if there be an error, does not invalidate the whole process. Local authorities generally and Dundee City Council in particular have been entrusted with certain statutory functions, duties and responsibilities to children. It should not be assumed that they will perform these functions etc. carelessly or without regard to the statutory requirements. To call for an independent review of their performance does not answer the perceived lack of independence since persons carrying out the review will be paid by the local authority. That raises an issue of the best use of resources, she submitted, and the risk of any system which is said to require such a review grinding to a halt through a lack of reviewers. The internal systems, the children's hearing and the court have provided sufficient checks and balances in relation to the present circumstances to negate the need for further independence. To the foregoing, she might have added the appointment of a safeguarder to C at various stages of the children's hearing, and the inevitable appointment of a curator ad litem in the present proceedings, both of which appointments were entirely independent of the social work department and the city council in general, albeit their fees would ultimately be paid by the local authority.

Finally, she reminded me that, if the freeing application were to be granted, the named place supervision requirement should be terminated, in terms of section 18(9) of the 1978 Act, as amended.

I was grateful to Mrs. Evans for her careful and comprehensive coverage of all the issues in her submissions and the careful research of the authorities she had carried out. In a perfect world I might have wished that she had been a little more selective in relation to her nearly 300 productions but this brave new world of full disclosure no doubt increasingly this is what courts will have to contend with no matter how limited in value much of the documentation may be.

Submissions for first respondent:

Mr. Sharpe, for J, submitted that the court should find in fact that there was no assessment of parenting skills of either J or McL in any formal sense, immediately following the grant of the first child protection order and therefore the petitioners were unable to say whether the parenting skills had improved by the time of C's return in October, 2000. No evidence had been led about what parenting skills had been taught. He wanted the court to find in fact that the period from May to October 2000 was too short a period for preparation for rehabilitation and that the preparation was inadequate. He submitted that the court should hold that the decision to promote C's return to McL and J as a couple at the time the decision was made had no proper factual basis. It seemed a curious decision, coming as it did shortly after a report written by SR highly critical of both parents for engaging in their own agendae and for using C as some kind of bargaining tool. Both were said to be unable to put the needs of the baby, as she then was, before their own. That report had also concluded that it was impossible to assess J on account of her transient lifestyle. For these reasons, the decision to rehabilitate was unreasonable and the rehabilitation was unlikely to be successful, he submitted.

He went on to submit that the court should conclude that during the period from 9^th. October, 2000 until 1^st. March, 2001, the social work department made no referral to the reporter to the children's hearing, though they were supposedly monitoring the position, and so it had to be inferred that the situation in the house was not as bad as they now sought to suggest in evidence. Also that the decision to seek and obtain a child protection order on 1^st. March, 2001 was unreasonable and unnecessary and was a disproportionate response to an allegation of assault on S by McL. At least in respect of C, there was no urgency of the nature contemplated in section 57 of the 1995 Act. Nor was there evidence to support a conclusion of persistent failure on the part of the parents to discharge their parental responsibilities to C. It seems to me that these are arguments that should have been advanced in the appropriate fora at the appropriate times, rather than in the course of the submissions on this hearing, standing the unchallenged or unsuccessfully challenged decisions of the children's hearing and the sheriff.

Mr. Sharpe went on to submit that there had been a lack of independence on the part of SR. She had written the parental assessment report on 21^st. August, 2001. She should not have written this report. She had come to a prior conclusion about the parents in April, 2001 and the conclusions of the report were, accordingly, fixed in advance. There was no adequate response to the request from the children's hearing for an independent review.

The decision to seek a permanent alternative solution for C was also arrived at with undue haste. It was extraordinary that, as at 31^st. March, it was being recorded in a minute of a Looked After Child review meeting that contact had gone very well but that by 19^th. April, it had been decided by the social work department that no further attempt at rehabilitation would be undertaken.

Even after CC became the case responsible social worker in September, 2001, it was still being noted that J never missed a contact session and that she enjoyed her time with C. JB, who had supervised a number of the contact sessions, had recorded that C was "fine" during contact and was "put on a pedestal" by family members. HF, her then foster carer, was, at least at that stage, not reporting any difficulties with C's behaviour before or after contact. However, the social work department was bent on a policy of reducing contact to facilitate the permanence plan. This policy ignored the good contact which was taking place. The policy was aggressively pursued, he submitted, by CC. She was not independent. She prepared a contact assessment report for 3^rd. May, 2002 in which she concluded that C should have no direct ongoing contact with her birth family. She should not have made this assessment. The outcome was a foregone conclusion. The assertion it contains that C had not established healthy attachments with her birth family was contrary to the evidence, he submitted. The termination of contact in May, 2002 was a direct result of the contents of this report. There was no proper basis for this decision. That, again, seems to me to be an issue that should have been pursued at the time of the decision, by way of appeal to the sheriff, and it is inappropriate to argue that now. There was no appeal against this decision.

He went on to submit that the Adoption and Fostering Panel meeting on 21^st. February, 2002, proceeded on the basis of inaccurate material supplied by the social work department and that the parents had been excluded from this meeting contrary to their rights in terms of Art. 6 of the European Convention. The present application, which should be refused, was a violation of their Art. 8 rights.

He moved me to refuse the application. He referred to the statutory provisions, especially those contained in sections 16 and 18 of the 1978 Act. He accepted that, in terms of section 18(1)(b) that, if the court was satisfied that a section 16(2) ground was established, then the court would be entitled to dispense with consent and grant the freeing order. It was not my impression, however, that he intended to concede that section 6 had no application, for he then proceeded to refer to the case of Lothian Regional Council v A (supra) which prescribed the two stage approach, already discussed. He reminded me that the court would have to have regard to the child's welfare throughout her life. He referred to West Lothian Council v M 2002 SLT 1155 where, he said, it had been determined that "the reasonableness of a decision by a birth parent to withhold consent is to be judged objectively by the standard of a hypothetical parent who has in mind the paramount consideration set out in section 6 of the 1978 Act." He also directed me to the passage in Norrie & Wilkinson, pp. 146-152 on the meaning of "unreasonably withholding consent."

He submitted that there had been no evidence of serious ill treatment of C by J or McL and that, in fact, the evidence of the social workers had been that they did not consider that they were relying on this ground. The court should hold that this ground was not established.

Nor had the section 16(2)(c)(i) ground been established. There was no persistent failure without reasonable cause. If there had been any real concern about a lack of parental care, during the period from October 2000 to March, 2001, the circumstances should have been referred to the reporter to the children's hearing. No such referral was ever made despite the statutory duty contained in section 53 of the 1995 Act. The second child protection order was triggered by an alleged assault on S by McL. Previous allegations of assault had not even triggered a referral never mind an application for what was recognised to be an emergency order. One could reasonably ask anyway what an assault on S has to do with the welfare and safety of C. The ludicrousness of the decision was illustrated by the fact that the day before the child protection order was sought and granted, SR had decided to try and find a new washing machine for the family.

If the grounds contained in section 16(2)(c) and (d) were not made out, then it could not be argued that the ground in 16(2)(b) was. If there had neither been serious ill-treatment nor persistent failure to fulfil parental duties of care, then it could not be argued that J's withholding of consent was unreasonable. C had been compulsorily removed from her care against her wishes on 1^st. March, 2001 and had remained in care since, as a consequence of a series of wrong decisions by the social work department. He referred me to the decision in H v Stark, an unreported decision from Edinburgh Sheriff Court of 16^th. April, 1999.

He submitted that there had been no assessment of J's deficiencies and no focussed effort to help her address these deficiencies. The decision to return C to her parents was absurd, in the light of the evidence which had emerged in the course of the proof. The social work department had closed their eyes to any alternative approach other than the permanence solution after the second child protection order, demonstrating a lack of independence, he submitted, as I understood him. That in conjunction with the refusal to allow the parents to participate in the proceedings before the Adoption and Fostering Panel constituted a flagrant breach of both Arts. 6 and 8 of the European Convention. Any interference in family life by Dundee City Council must be proportionate. He referred me to "A Practical Guide to Human Rights in Scotland" edited by Lord Reed, at pp.181-182. He also referred to Johansen v Norway. The approach of the petitioners, he submitted, constituted a contemptuous disregard for the principles underlying Art. 8. Human rights, generally, had been ignored by Dundee City Council.

He accepted that SR was, generally, a credible witness but said that at times she had been unreliable and at other times evasive. He accused her of being defensive about her lack of independence. She was part of what he categorised as a "formulaic approach" by the social work department to the parents in this case. Yet she and JF, her senior, were at odds in their approach to rehabilitation. C was prematurely returned to her parents as a consequence. One unanswered question was if a full training programme in parental skills had been undertaken, why did the parents demonstrate little ability to cope almost from the moment that C was returned. If it were the case that their ability to care for the child remained so poor after her return, why was that not obvious from the monitoring that had been put in place ? The reality, he submitted, was that if the parents had indeed learned nothing from parenting classes and guidance then they were bound to fail.

Having returned C, if the evidence of the social workers were to be accepted, they then did nothing about the parents' failure to bring her, as they said the parents had agreed to do, to a mother and toddler group on a weekly basis. If that were a material part of the rehabilitation plan, then why had they done nothing about such a failure ? Why did no social worker or social care assistant pick up the allegedly deteriorating conditions in the house during this period of so-called close monitoring ? It could only be that the situation was nothing like as bad as they were now trying to make out. SR was evasive and unconvincing about why nothing was done at this time. If she was to be believed, it would seem that she and JF spent a great deal of time talking about this family but did precious little in the way of action to address their problems.

The social workers involved appeared to take very little account of J's intellectual limitations. It was suggested that she was resistant to advice and able to understand the need for particular actions but wilfully declined. The issues of how well she understood why it was necessary to keep her house and children clean and well managed were not addressed.

He submitted that SR's response to the failure to permit the parents to attend at the Adoption and Fostering Panel was inadequate. It seems to me, however, that if it was the petitioner's policy, in common with that of most other Scottish local authorities, to exclude parents from such sessions, it was unlikely that that policy would be challenged by a basic grade social worker and that this is an unfair and unjustified criticism. It was not SR's decision that the parents should not be permitted to attend.

SR gave no evidence about serious ill-treatment of C, he submitted. In my opinion, that rather depends how you categorise evidence of matters such as failure to feed the baby to the extent that she loses weight, failing to provide her with a secure home, failing to take her to clinic appointments, keeping her when a few weeks old away from her mother, for spite, and in a smoky atmosphere, leaving her in the care of a disabled woman and in the presence of a Schedule One offender and having her in unhygienic conditions.

Her evidence about the events of the period between 18^th and 22nd. January, 2002, was cast into doubt on account of her inaction then to protect the children. Her credibility, generally, was undermined by her unacceptable answers on vital issues, he submitted. She could not explain the change in the attitude of the department from 28^th. February to 1^st. March.

SR admitted to having doubts about the veracity of the information given to her by S and P. There were no marks on P consistent with having been struck with a snooker cue, for example. She accepted that some allegations had later been retracted. No evidence had been led from any police officer about his or her assessment of what had occurred.

What had happened since the second child protection order was taken demonstrates the fallacy of taking it, he submitted. Contrary to expectations, J and McL had continued to cohabit, apparently co-existing successfully. S visited them regularly and had made no further allegation of assault.

Mr. Sharpe reminded me that the court would have to apply the 1978 Act in a manner compatible with the European Convention on Human Rights. He referred me to section 3 of the Human Rights Act, 1998. In relation to Art. 8 there required to be "openness, transparency, fairness and independence." In the present case, he submitted, there was no independent element to the assessment or decision making process. Those doing the assessments made the decisions and vice versa. The one request that was made for an independent review was circumvented. Reports by SR and CC were written to support conclusions which had been reached before they put pen to paper.

Art. 6 rights were also breached. The parents should have been permitted to attend the Adoption and Fostering Panel. The social work department knew that they opposed the plan for adoption. In their absence, there would be no contradictor. Lynne Cameron in her evidence acknowledged that the Panel could not realistically look behind the content of the documentation placed before them. There was a failure to act in accordance with the law and for this reason alone the application should be refused. SR's training on the impact of the European Convention on her work had been minimal.

Mr. Sharpe submitted that the same criticisms could be made of the evidence of JF.

HF, he accepted, was "extremely credible" but was "used" by the social work department to further the permanency plan. It will be seen that his submission about the social work department was increasingly taking on the air of an all embracing conspiracy. In my opinion, there is no foundation in the evidence which would support a deliberate conspiracy with evil motivation on the part of the social workers involved and the suggestion that HF would participate in any such conspiracy beggars belief.

He suggested that HF had move away from the notion that all of C's observed difficulties had occurred around the times of contact in the course of her evidence. Some of the upset, for example, resulted from a period with a respite carer. There was evidence of a persistent problem with diarrhoea and rashes on her bottom caused by acidic stools. There was, on the other hand, no evidence of distress at contact. The inference HF sought to draw was the wrong one.

CC had no intention other than to progress permanence. Contact was reduced to nil on her recommendation. There was no basis for doing this. It was nothing to do with the welfare of the child. She should not have undertaken the contact assessment report. There was no evidence that the social work department had ever tried to promote contact. CC did not review the earlier decisions. She aggressively pursued a policy of getting contact reduced to nil. J had faithfully attended for contact throughout and was wholly committed to her child. CC was driven by policy considerations and never considered, for example, discussing with J the possibility of an open adoption. The application, he submitted, should be refused on the evidence of this witness alone. I understood that submission to mean that she had started from such an unfair and biased position that her evidence should be regarded as supportive of the position in law of the first respondent, which seemed to me to be a somewhat unusual approach to the assessment of evidence.

Lynne Cameron said nothing which supported the petitioners' position and, in particular, had said nothing which justified the exclusion of the parents from the Adoption and Fostering Panel.

Ellenore Foulis was entirely credible but reliant on the social work department for her information and thus for formulating her conclusions.

Dr. Cairns had been of no assistance to the petitioners. She accepted that there should have been an assessment of the parents' parenting skills deficits. Her evidence was flawed as she too had to rely on the accuracy of information from sources which were demonstrably inaccurate. Her conclusions should be ignored, he submitted.

The application should be refused. No criticism attached to Mrs. Evans, the solicitor for the petitioners for that conclusion as she had presented the case professionally and fairly. The witnesses SR, JF and CC, were to blame. There had been a failure to assess the parents and their deficits. The decision to rehabilitate C when that was done was patently absurd. After C was returned to the care of her parents, there was no adequate monitoring which could form the basis of evidence about the quality of her care. It was inappropriate and unnecessary to seek the second child protection order in relation to C in the absence of any evidence of risk to her. After that had been granted, the plan immediately was for permanence and everything that followed thereafter was driven towards that conclusion. Even if there were evidence which supported a finding that there was a ground for dispensing with consent, this is a case where discretion under section 6 of the 1978 Act should be exercised in support of a refusal of the petition. The respondents had had their rights breached. The social work department should be sent away to think again and the whole issue of contact should be urgently re-visited.

Submissions for the Second Responent:

Mr. Simpson's submissions for the second respondent were confusing and unhelpful. He invited me to find that his client had "an alcohol difficulty" but that he had made strenuous efforts to overcome this, that he had had a poor relationship with SR and CC which was not exclusively his fault, that he cares for C and had tried to be a good father to her, that his relationship with J was now much more stable and that it would be in C's best interests if this application were refused. So far so good.

There then followed a poorly focussed submission on the effect of the European Convention, Arts. 6 and 8, on the circumstances, ostensibly supported by a number of references to European Court of Human Rights authority. I was accordingly very pleased when we re-convened on 21^st. June, 2004, following the promulgation of the decision in Dundee City Council v M, that, having regard to paragraphs 29 and 30 of that decision, he now sought leave to abandon his arguments based on the alleged breaches of Arts. 6 and 8. He then adopted Mr. Sharpe's submissions, adding only that it appeared from the evidence that the minute that CC was appointed as social worker to C, the road to adoption was inexorably established. Questions for the court were was permanence the correct conclusion and was the policy of involving the permanence team the right one; was freeing for adoption the appropriate route by which to proceed; did the local authority get the balance wrong.

Secondly he submitted that the second respondent's position had suffered from a personality clash between him and social workers. They considered him to be a difficult nuisance. Throughout the proceedings he had striven to get his act together and he now had a good relationship with J's other children but was, ironically, at risk of losing his own child. It was accepted that his behaviour had been inconsistent. His relationship with J, however, had improved as the litigation had progressed. He accepted that he had an inbuilt dislike of social workers. However, C was never at any risk from him and there was no evidence to suggest that. J was largely to blame for the first child protection order being granted. McL had to be viewed on a child by child basis. I understood him to mean by that submission that the position of McL in relation to C differed from his position in relation to S or P. The petition should be refused.

Response by petitioners:

Mrs. Evans accepted that, paradoxically, it appeared that the relationship between J and McL had gone from strength to strength since March, 2001 but that was not wholly supported by the evidence, especially from J or some of the evidence from social work sources about their behaviour to each other, nor by aspects of J's demeanour while giving evidence which suggested that she remained fearful of and influenced by McL. She observed, in my opinion with much justification and validity, that both respondents' submissions had founded upon their rights and said nothing about what might be in the best interests of the child. The stark conclusion was that J and McL continued thus to demonstrate that they were incapable of acting as her parents in a way that would safeguard her. It was ironic that they found life easier to cope with since C's removal but that was irrelevant. What mattered was that they could not cope with her when it mattered.

The attack on CC was misplaced. She was a specialist operating in a difficult and emotive field. Her mind was not closed to the possibility of rehabilitation in general terms but she had a job to do and she undertook it professionally. The Adoption and Fostering Panel meeting was not one at which the parents' rights were prejudiced by their non-attendance. It was not just a rubber stamping exercise but one connected with advancing the future rather than debating the propriety of the permanence decision. The professionals in this case did get the balance right, especially CC. The approach was appropriately concentrated on the best interests of the child but did not ignore the rights of the parents. The court should grant the petition and discharge the corresponding supervision requirement.

Mr. Sharpe for the first respondent acknowledged that much of his earlier submission about alleged breaches of Arts. 6 and 8 of the European Convention on Human Rights had been overtaken by the decision in Dundee City Council v M. He continued to maintain, however, that J was not unreasonably withholding her consent. The second child protection order had been taken for the wrong reason. The local authority should have invoked procedure under section 52 of the 1995 Act, perhaps at an earlier stage, to review the supervision requirement if they had grounds for misquiet. CC missed an opportunity to reconsider how the local authority had reached its conclusions and to revisit them. She could have encouraged an approach to adoption utilising section 12 of the 1978 Act which would have allowed post adoption contact which might have been an acceptable solution. But instead she pursued a course of reducing contact to nil which prejudiced the position of the parents. If it was correct that consent was not being unreasonably withheld, then the court would require to dismiss the petition. It was not unfair to obtain an independent report when this was called for. The whole issue of what was right for C and her contact with her mother required to be re-visited. Meantime this application should be refused.

The law:

I understand that the law relating to adoption procedure is currently undergoing review. That can only be a good thing for, in my opinion, it is presently in a state where its operation is difficult and cumbersome and imposes unnecessary duplication of work for adoption agencies at very considerable public expense.

Section 18 of the 1978 Act regulates the process of freeing for adoption. It 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 -

he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or

his agreement to the making of the order should be dispensed with on a ground specified in section 16(2),

the court shall, subject to subsection (8), make an order declaring the child free for adoption.

Dundee City Council are an adoption agency which is a local authority, so the first requisite is met. Section 56 provides that an authorised court includes the sheriff court of the sheriffdom within which the child is, and the child is in this sheriffdom, so that second requisite is also met. In the report by Mrs. Foulis who had been appointed by this court both as curator ad litem and as reporting officer, particularly in her report in that latter capacity, no. 8 of process, she reported that "each of the parents of the child have stated that he and she refuse to sign any consent to the child, C, being freed for adoption and both had declined to sign declarations in terms of section 18(6)." She further reported in terms, " Both parents understand the effect of an adoption order would be to extinguish their parental rights and responsibilities, that alternatives to adoption have been discussed with them and that each parent understands the implications of an order freeing the child for adoption to which neither is prepared to agree." Given that those are the terms of the report prepared by the court's appointee as its officer, I would be at liberty to proceed on the basis of that information alone but the one simple truth in this case, which counsel for the first petitioner was unwilling to recognise, standing the terms of his submissions, is that all the evidence in this case from both the petitioners and respondents is that the respondents are implacably opposed to adoption or freeing for adoption of C and will only countenance an outcome in which she is returned to them. All the evidence and submissions about discussing or failing to discuss the option of an open adoption were, accordingly, in my opinion, a complete waste of time.

Anyway, the evidence apart from the report demonstrates that neither parent agreed generally and unconditionally to the making of an adoption order and so the matter can only proceed if the agreement of each parent to the making of an adoption order can be dispensed with on a ground specified in section 16(2). I will return to that.

Section 18(2) requires that in a case where the application is made without the consent of either parent, as here, then it must be one in which the adoption agency is applying for dispensation of the agreement of each parent and the child is in the care of the adoption agency. While the position is perhaps not as clear as I would like it to be, it appears to be able to be inferred from section 71 of the 1995 Act that where a child is subject to a named place supervision requirement and the place named in the requirement is the home of a local authority approved foster carer, then the child is in the care of the local authority, so that requisite is met.

It is clear from the evidence of CC, Lynne Cameron and Ellenore Foulis, as well as her curatory report and the affidavit from the prospective adoptive mother, that C has been placed with a family for adoption and so the requisite in section 18(3) is met.

There is no agreement by the mother so section 18(4) is inapplicable. 18(5) deals with the effect of making the order so need not be considered at this stage. I have already dealt with the requirement in 18(6) under reference to the report by Mrs. Foulis as Reporting Officer so that requisite has been met. There are no declarations made under section 18(6). With regard to section 18(7) the father has in this case entered into a parental responsibilities and rights agreement under section 4 of the 1995 Act so that sub-section has no further application. C is not 12 so 18(8) is inapplicable. I have been invited by Mrs. Evans for the petitioners to give effect to sub-section (9) if I am otherwise minded to grant the petition.

I turn then to section 16(2) which sets out the various grounds on which parental consent can be dispensed with. The first ground is that the parent "is not known, cannot be found or is incapable of giving agreement." It was not suggested by anyone that any of these considerations had any application in the present case.

The second ground is that the parent is "withholding agreement unreasonably." This apparently straightforward and unqualified expression has caused the development of a not insignificant body of case law, including at least parts of the judgments in Lothian Regional Council v A; T, Petitioner; AB, Petitioner; A v B & C; D & D v F; City of Edinburgh Council v MH & MH; RG & RAG v FM; City of Edinburgh Council v D; City of Edinburgh Council v S and Angus Council v C. The most venerable of these authorities is A v B & C which is a decision of the House of Lords, reported at 1971 SC 129. This was a case where the natural parents were not married at either the time of conception or birth of the child, but were subsequently married and wanted to care for their child. After the birth and after some vacillation, the mother had given the child up for adoption. The child was duly placed with prospective adopters where she had been for some considerable time prior to the marriage of the natural parents. The natural mother then withdrew her consent to the adoption. In determining what the test was for withholding agreement unreasonably, their Lordships affirmed the earlier expounded test of the objective reasonable parent. At page 132 of the judgment, which was later approved in the House of Lords, the sheriff-substitute quoted a passage from Lord Denning M.R. which is in the following terms:-

"I must say that in considering whether she [i.e. the parent] is reasonable or unreasonable we must take into account the welfare of the child. Her anguish of mind is quite understandable: but it may still be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case."

The reference to "woman" rather than "parent" makes the point that society and its views have changed dramatically in this field since 1971. There is no longer, it appears, any opprobrium to be attached to unmarried pregnancy and little social and only limited legal stigma to the status of illegitimacy. Termination of pregnancy had only just become lawful then by contrast with now, and contraception is highly developed, sophisticated and generally well understood and used habitually by young people these days. Accordingly there are not very many unplanned illegitimate children around. Adoption then was commonly the result of social pressure not to be seen to have an illegitimate child and that was bound up with the general perception that the classic nuclear family was the only proper way to bring up children, another notion which is now far less prevalent. So confused, anguished young women under family pressure to conform to the norms of society as they then were gave up children for adoption and then had second thoughts. Much of the present law in relation to adoption is promulgated against that background, a background which has completely disappeared. What remains of interest from this judgment, which predates all the present statutory law, apart from the test to which I have referred, is that even in 1971 their Lordships in the House of Lords were bemoaning the delays and unsatisfactory procedures which had bedevilled the resolution of that case. They also seem to have approved of the approach taken by the sheriff substitute that the point in time to consider whether withholding consent is unreasonable is the date when the order falls to be granted or refused. Usefully, for the present case, Lord Simon of Glaisdale oberved, at page 147, "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 (1971) than it would have been at the end of 1968." It is encouraging to know that there is still a place for the application of common sense.

The second oldest case is A.B Petitioner 1976 SLT (Sh Ct.) 49 where Sheriff Henderson, at Stirling, had to consider a sad case where an illegitimate child had been placed with the consent of the mother with a couple with a view to adoption and the male prospective adopter died in traumatic circumstances. The child had been with the couple for about six months. The natural mother withdrew her consent citing her own experiences as the child of a single parent as her reason for her change of heart. Sheriff Henderson applied the reasonable parent test and concluded that she was withholding consent unreasonably though one can imagine that that was a very difficult and delicate task in these circumstances.

The modern law really starts with the decision in Lothian Regional Council v A 1992 SLT 858. In this case the judgment of the sheriff was held to be open to the criticism that his findings in fact were inadequate to support the conclusion that the parents were withholding consent unreasonably. It was in this case that Lord President Hope, giving the Opinion of the Court, established the two part test for the court of first instance, firstly to determine whether one of the grounds for dispensing with consent was established, which was a question of fact and degree, and then, if such a ground were established, whether it would be appropriate to make the order sought, dispensing with parental consent, which would be an exercise of judicial discretion. In exercising that discretion, the first consideration was the welfare of the child. The test for whether agreement to freeing for adoption was being unreasonably withheld was again said to be the objective test of whether a hypothetical reasonable parent would withhold agreement. Lord President Hope states the test at page 862 thus:- " The question must be looked at objectively, and the test will be satisfied if no reasonable parent in all the circumstances, would withhold agreement to the making of an adoption order."

That test was applied in D and D v F 1994 SCLR 417, by Sheriff P.G.B McNeill, Q.C., who may properly, in my respectful opinion, be regarded as an expert in this field, even in circumstances where he appears to have been more than a little disapproving of the way in which the petitioners came to be in possession of the child. What was important was the period throughout which the child had been in the care of the petitioners and that the child had formed an attachment to them.

The issue was also considered, along with other important issues, in T, Petitioner 1997 SLT 724 where the child concerned was a 4 year old profoundly disabled child and the petitioner was of homosexual orientation, in a stable relationship and with experience of both nursing and the provision of professional care, where the Lord Ordinary refused the petition (which had been remitted to the Court of Session by the sheriff) holding that it had not been shown, where the intention was to place the child with a practising homosexual, that the natural mother was withholding her agreement unreasonably. Lord President Hope, in giving the Opinion of the Court overturning the decision of first instance, repeated the objective test as stated in Lothian Regional Council v A. He went on however to make the point that a natural parent could not frustrate the process of adoption by declining to have anything to do with it and made it clear that the court was at liberty to treat her refusal to participate in the proceedings, including as she had done refusing to meet with the curator ad litem, as amounting to withholding her consent. He then went on at page 729I to expound the test applicable in that case thus, "I think that a mother who had no contact since birth with a child who was so severely disabled as the child S, and who was unable or unwilling to care for him herself in view of his disabilities, would not hesitate, if she was giving first consideration to the need to safeguard the welfare of the child throughout his childhood, to give her agreement to the making of an adoption order where this would lead to the child being placed in a secure home of the kind which can be provided to him by the petitioner." Similarly, Lord Wylie, at page 737I said, "I am perfectly satisfied that where the natural mother had made it abundantly clear that she had no further interest in her child and no interest in any adoption proceedings in relation to her child it is tantamount to withholding her agreement..."

While the facts in that case at least in relation to the position of the mother are quite different from the present and present a more clear cut picture of disinterest than in the present case, the test remains the same.

In a case which has a number of similarities to the present, RG and RAG v FM 1999 SC 439, the Inner House of the Court of Session overturned a decision of a sheriff who took the view that a mother was not unreasonably withholding consent on the basis that to do so would terminate all contact with the child. The child had been placed with foster parents who now sought to adopt him, the child having been placed with them by the local authority social work department. The natural mother had a series of difficulties of some significance associated with a personality disorder which had led to the child being taken into care and there had been an unsuccessful attempt at rehabilitation. There was conflicting evidence as to whether further contact with the natural mother was in the child's best interests. The sheriff took the view that the child should stay with the foster carers but should continue to have contact with his natural mother and so made a residence order under section 11 of the 1995 Act in favour of the foster parents and an order for contact. He also held that, as a matter of fact, she had persistently failed to fulfil her parental duties without reasonable excuse. The Inner House were again critical of the sheriff's decision in the absence of explanation for certain aspects of it. They made reference to the objective parent test and the range of reasonable responses. They confirmed that, given the failed rehabilitation, and notwithstanding evidence that the mother's circumstances had improved, the sheriff had been entitled on the facts to conclude that there had been a persistent failure to fulfill her parental responsibilities without reasonable excuse. They were concerned about the prospect of the child being returned to the natural mother, that continuing contact would undermine the placement with the foster carers and that that was contrary to the best interests of the child. They accordingly concluded that adoption was the correct course with no continuing contact. However, they did not demur from the conclusion that the natural mother in the circumstances had not withheld her consent unreasonably because they accepted that there was a body of evidence that there would be adverse consequences for the child if contact were terminated. The case therefore turned on the reasonableness of making a decision which provided the best route forward for the child, standing it had been established that the 16(2)(c) ground of persistent neglect had been established in the case.

In City of Edinburgh Council v MH and MH E/13/99, decided on 23^rd. June, 2000, Sheriff A.M. Bell was confronted with natural parents who had at one stage consented to a child being freed for adoption and had then withdrawn that consent and while he applied the objective test it was perhaps of greater importance in that case that he was also able to determine that the section 16(2)(c) ground was also established.

A more difficult case is City of Edinburgh Council v S 2000 SLT (Sh.Ct.) 147, a decision of Sheriff N.M.P. Morrison, QC. This was an application for freeing for adoption of two children who had been taken into care after one of them had apparently been severely assaulted by a cohabitee of their mothers, not at the time of the assault, as the assailant appeared to have left the home then, but on the local authority social work department learning that the mother intended to resume cohabitation with this individual and against a background of her being warned that the children would be removed if she did so. The children were duly placed in foster care. There were further complications including the mother disappearing for a period but eventually she reappeared having finally separated from the alleged assailant. At that point the social work department refused to permit her to have contact with the children on the basis that they were petitioning the court for the children to be freed for adoption, notwithstanding that the foster carer was informing them that the older child wanted to see her mother. That wish on the part of the child had, inexplicably, not been explored by the social work department by the time of the hearing. The sheriff was left in the unfortunate situation of recognising on the evidence that there was merit in these children being adopted but that, standing the position of the older child, it could not be said that the natural mother was unreasonably withholding consent. That seems, so far as I can make out from the judgment, to have been the only ground for dispensation advanced.

His decision turned on the fact that, in the absence of exploration of the child's wish to see her mother, it could not be said that the mother was unreasonably withholding her consent to the child being freed for adoption which order, if granted, would have put an end to any possibility of contact. I understand that position though, given the conclusion otherwise that adoption of both children appeared to be in their interests, I think I would have continued the hearing and requested the curator ad litem to carry out further investigation. Be that as it may, what really disturbs me is the unfortunate generalisation offered by my learned colleague at 152D of the report that "An attitude which prevails in some quarters, that for older children a closed adoption would be the norm and that once adoption has been contemplated contact must stop in order to achieve a closed adoption, will have to change." If, as I understand it, that observation is offered as a generalisation, then I profoundly disagree with it and observe that it is wholly inconsistent with the evidence of Dr. Cairns in the present case which I considered to be impressive. I can understand that there will be cases where continued contact with one or both parents would be in the best interests of the child. Where, however, as in the present case, the parents oppose adoption and oppose freeing for adoption, it is difficult to conceive of circumstances in which, human nature being what it is, and most of these cases having a background of ill-treatment or neglect where the natural parents do not recognise their guilt, continuing contact will do anything other than undermine the adoptive placement. I would be very concerned if adoption agencies generally were influenced by my learned colleague's observation into thinking that that should apply in all cases where adoption is being considered. It will discourage some potentially gifted prospective adopters. But, more importantly, it will not help children in the process of seeking out the security that, by definition, has been missing from their experience with their natural parents. I accept that there is a need for flexibility, which currently does not exist, in relation to post-adoptive contact, but I consider that it would be wrong to determine the propriety of such contact other than on an empirical basis. I have to say that that seems to me to be consistent with the approach of the higher courts in determining these difficult cases.

I am, with respect, much more impressed with and influenced by the judgment of Lord Penrose in Angus Council v C 2000 SLT 761, which, highly persuasively from my perspective, concludes that the amendments to section 16 introduced by the Children (Scotland) Act, 1995, Schedule 2, do not affect the two pronged approach promulgated by Lord President Hope in Lothian Regional Council v A.

Similarly, the line taken by Sheriff Morrison in City of Edinburgh Council v D 2001 SLT 135 is a much more persuasive authority in terms of its content. There are, again, a number of similarities with the present case. The child involved had been placed with foster carers after failing to thrive, as here. There was a history of violence by that natural father to the natural mother, as here. She suffered from ataxia. In the present case, J suffers from unspecified and undefined learning difficulties, or so it would appear. Neither would co-operate with the social work department, as here. The child seemed uncomfortable with the mother during the supervised contact sessions, as here. The father had only attended one out of four contact sessions, similar to the present case. The prospective adopters were prepared to countenance twice yearly visits. The question for the court was said to be whether, at the date of proof, a reasonable parent would withhold agreement, and even if a particular decision in the process was in breach of the European Convention on Human Rights, which the court did not accept was established, it did not follow that all that had happened thereafter was invalidated; that it was unsatisfactory that the adoption panel included members belonging to the same team as the social worker involved in the case....but that the decisions reached were correct and that it could not be said that the parents were withholding consent reasonably simply because they were being denied the amount of contact that they sought. There was no reasonable alternative to adoption given the undercurrent of violence and that both parents had shown that they were prepared to put their own interests first and adoption would promote and secure the child's welfare throughout her life.

Turning to the second potential ground for dispensation being that contained in section 16(2)(c), there is less authority on the application of the statutory provisions. These are that the parent has persistently failed, without reasonable cause, to fulfil one or other of the following parental responsibilities in relation to the child -

the responsibility to safeguard and promote the child's health, development and welfare; or
if the child is not living with him, the responsibility to maintain personal relations and direct contact with the child on a regular basis.

It is to be noted that each of these sub-grounds, if I may so describe them, are categorised as being parental responsibilities. Since there were no parental responsibilities incumbent upon McL, the father, at this point in time, he cannot be said to have failed to fulfil any. However, in looking at whether he is unreasonably withholding consent to adoption, in my opinion it can be prayed in aid that he has both failed to safeguard and promote the child's health, development and welfare and failed to maintain personal relations and direct contact with her.

The ground can only therefore potentially apply to the behaviour of J, the mother, who has parental responsibilities vested in her by virtue of the provisions of section 3 of the 1995 Act. So the questions which arise in relation to the evidence pertaining to her seem to me to be (a) has she failed to safeguard and promote the child's health, development and welfare; (b) if so, has she so failed persistently; and (c) if so, has she so failed without reasonable cause.

There is not a lot of guidance on what amounts to a failure to safeguard and promote the health of a child. In the 3^rd. edition of Adoption of Children in Scotland, by Sheriff P.G.B McNeill QC., he confines himself at page 127 to observing that the current provision includes the modification or perhaps more accurately elaboration introduced by the 1995 Act, Schedule 2, but that the substance of the law is not thereby altered. He states that a parent has by reason of the relationship of parent and child the duty to aliment the child and guide the child in his upbringing. He records that in England it has been said that parental duty includes the "natural and moral duty of a parent to show affection, care and interest towards his child." This would include adequate provision of housing, clothing and food, as well as ensuring that the needs of the child, such as education and medical treatment were properly met. He then discusses the issue of aliment, which is not material to the present case.

Of course the words of this provision echo those contained in section 1(1)(a) of the 1995 Act which provide that a parent has a responsibility to safeguard and promote the child's health, development and welfare. Some of this language, in turn, owes its derivation to the United Nations Convention on the Rights of the Child.

There is a helpful passage on this ground for dispensation now to be found at paras 4.51-4.55 of the 2^nd. edition of Wilkinson & Norrie on The Law relating to Parent and Child in Scotland. The following statements therein contained are of consequence to the present case. "The ground clearly refers to past behaviour rather than future prospects; so in L. v Central Regional Council 1990 SLT 818 the sheriff was overruled for holding that the equivalent ground before the 1995 amendments did not exist because the mother had recently established herself in a more settled environment and was now better able to provide properly for her children. This is a matter relevant to whether consent should be dispensed with because of the ground, rather than to the existence of the ground itself." "Neglect of the appropriate responsibilities is when a parent shows want of reasonable care - that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind....provided the parent had such means as would enable him to take the necessary steps." "In order to be obnoxious to the statute, the failure must, however, be significant in kind and degree; it must relate to an aspect of the child's well-being to which a reasonable parent would attach importance and be of such seriousness as reasonably to cause concern for its adverse effects on the child. Not only neglect of physical welfare but also emotional neglect and rejection may be in point. Although there is in the adoption legislation no express provision corresponding to section 12 (2)(a) of the Children and Young Persons (Scotland) Act, 1937 relating to failure to provide adequate food, clothing, medical aid or lodging such failure falls, it is submitted, within the ordinary meaning of failure to fulfil to responsibility to safeguard and promote the child's health, development and welfare."

I am happy to adopt the foregoing statements. They appear to mean that the test to be applied to the evidence is an objective one.

The failure or failures, for it seems to me that the cumulative effect of a series of failures is plainly encompassed by the terms of the legislation, require to be persistent. In City of Edinburgh Council v MH and MH, at page 26 of his judgment, Sheriff A.M. Bell said that there was no true synonym for the word "persistent" and he did not accept that it meant permanent. In the case he was dealing with, however, he was able to conclude that the failures amounting to a failure to safeguard and promote had existed throughout the lives of the children concerned. At page 151, para 4.54, Wilkinson & Norrie suggest that in order to be characterised as persistent, the failure must endure over a substantial period of time. The length of time required is, they suggest, a question of circumstances. Standing the vitally important evidence of Dr. Cairns about the risk to a child from being left in a state of limbo and the importance, if adoption is to be successful, of placing the child as early in his life as possible, it seems to be that the repetitive element of behaviour comprised in the dictionary definitions of the words "persist," "persistence," and "persistent" is to be given prominence, rather than any over-emphasis on for how long a particular course of conduct has continued, provided it is not unduly short. To take an obvious example, failure to feed a infant for 48 hours should be regarded as a persistent failure to safeguard and promote its health, development and welfare. I was not addressed by any of the parties as to the application of the word "persistent" in the present case.

The failure also has to be "without reasonable cause," another expression the meaning of which in the light of the evidence of this case was not addressed. In relation to J, I certainly wondered whether there might be an argument that she did not have the intellectual capacity to appreciate her inadequacies or their consequences for the child but if the test is objective, having regard to the effect of the failure on the child, then that would appear to be an irrelevant consideration. In any event, there is no clear evidence from which I could properly conclude that J's intellect was so limited as to render her incapable of appreciating the effects of her failure, whatever impression she may have created by her demeanour. In considering this difficult aspect of this case, I was assisted by consideration of the terms of the judgment of Lord Penrose in Angus Council v C, where the mother of the child was said to suffer from a personality disorder into which she had no insight, nor did she have any insight on its impact on her child. He said, at page 762, "The examples considered in the literature relate to the significance of imprisonment, for example. There is then a potential for voluntary contribution, as it were, to the circumstance which prevents contact. Mental incapacity does not fit that model. If one adopts a purely objective test, then a psychopathic personality disorder might be thought to be a cause, but not a reasonable cause, of a pattern of conduct. Ms. C is not insane. She is, ex hypothesi, responsible for her conduct. Her conduct is undoubtedly mitigated, in terms of moral guilt, by her disorder, but that disorder cannot be relied on as a reasonable cause of that conduct, viewed objectively." I am greatly assisted by that analysis. In the present case on the evidence I do not think I can go beyond concluding that J presents as intellectually dull. She cannot therefore rely on that inherent condition as a reasonable cause otherwise for her failure, viewing that failure objectively.

It was argued that McL, the father, had failed to maintain personal relations and direct contact with the child on a regular basis. McL did not obtain any parental responsibililty to do that until the completion of the parental rights agreement which was registered on 18^th. July, 2002. His right to contact to the child as a "relevant person," as that expression is defined by section 93 of the 1995 Act, was removed by the children's hearing on 8^th. April, 2002. Therefore he was prevented by the conditions of the named place supervision requirement from having contact from the date he acquired parental responsibilities until now. Though this was not argued by any of the representatives, that cannot be other than a reasonable excuse in this context and the court cannot therefore find that this ground is made out against McL.

The final potential ground is that contained in section 16(2)(d), that the parent has seriously ill-treated the child, whose reintegration into the same household as the parent...is, because of the serious ill treatment or for other reasons, unlikely. I have to say that this is a strangely worded provision when contrasted with the others. All the other grounds substantially call for the application of objectivity. This would be true of this ground too if it were restricted to the words "has seriously ill-treated the child." But that is not what the provision says. It requires a connected determination that the child is unlikely to be reintegrated into the household as a consequence of the serious ill-treatment or for other reasons. I do not consider that the word "reintegration" in this context means anything more subtle than "returning." At what point in time is the court to have regard to in determining the lack of likelihood? Is regard to be had to the possibility of returning the child to the household in the near future, notwithstanding the serious ill-treatment ? If so, why should that be with serious ill-treatment but not with persistent failure to safeguard and promote health, development and welfare, a failure which might be more susceptible to change? What might be an apt "other reason" in this context ? Is that a reference to the child forming an attachment with substitute carers during the time the child is necessarily away from home consequent upon serious ill treatment ?

Wilkinson and Norrie suggest at page 152, paras 4.56 and 4.57, that there must be something that justifies the explicit qualification of ill-treatment by the epithet "serious." They suggest that "ill-treatment that amounts to an offence will nearly always be serious, as will any treatment whose deleterious consequences last for more than a very short period of time." They go on to suggest that the prospects of reintegration will in most cases afford a good indication of whether or not the ill-treatment was serious. I regret that I have considerable difficulty with that proposition as a generality and particularly in connection with this case. In this case, I have already expressed grave concern at the decision of the social workers involved to return this child to its parents in October, 2000. Put another way, had I been looking at this issue in June, 2000, I would undoubtedly have concluded that reintegration was unlikely. Unfortunately, as we know, it took place. Does that have the effect that I cannot conclude that reintegration was unlikely when it happened even though I am very clearly of the view that it should not have happened ? Because of the unhappy terms of the section, I am driven extremely reluctantly to the conclusion that I cannot hold that this ground is made out against either parent because I cannot say that reintegration is unlikely because it has in fact taken place. Both the legislature, social work departments, reporters and members of children's hearings may want to take note of this difficulty. These issues become particularly poignant in the present case where I have no doubt that C did suffer serious ill treatment at the hands of both parents prior to the first child protection order being granted in May, 2000.

That leaves the terms of section 6 which only come to be considered if one of the grounds for dispensation set out in section 16 is established. It provides, so far as relevant to the present case, that in reaching any decision relating to the adoption of a child, a court shall have regard to all the circumstances but (a) shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration; and (b) shall have regard to the views of the child taking account of his age and maturity and to his religious persuasion, racial origin and cultural and linguistic background.

Wilkinson & Norrie deal with the issue of the determination of the merits at paras 4.68 - 4.72. It is there made clear that, as well as section 6, regard must also be had to the terms of section 24(3). They propone that the child's welfare now, having regard to the amendment introduced by the 1995 Act, must be the determining factor. It is not the only factor but they submit that factors are relevant insofar as they indicate wherein the child's interests lie and that the court is prohibited from making a decision relating to adoption which will go against the child's welfare. The interests of the natural and of the prospective adoptive carers are relevant and should be taken into account, as should all the circumstances of the case, but are subservient to the welfare of the child.

Section 24(3) provides that the court shall regard the welfare of the child as its paramount consideration and shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not. I do not consider that that imposes any particular onus of proof but merely a very wide and important discretion upon the court, all subservient to the paramount consideration of the welfare of the child.

Just before I leave consideration of the legal issues, an interesting issue arose about the application of Section 2 of the Civil Evidence (Scotland) Act, 1988, which provides, so far as relevant:-

"In any civil proceedings -

evidence shall not be excluded solely on the ground that it is hearsay;
a statement made by a person otherwise in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible; and
the court, or as the case may be, the jury, if satisfied that any fact has been established by evidence in those proceedings, shall be entitled to find that fact proved by the evidence notwithstanding that the evidence is hearsay."

Mrs. Evans, who had lodged 287 productions including a number of affidavits and reports, was concerned that these should not be ignored merely because the bulk of these was only acknowledged in the Joint Minute as being the records of the petitioner's social work department. She referred me to the authorities of McVinnie v McVinnie and Glaser v Glaser as containing practical demonstrations of how section 2 of the 1988 Act should be applied . Essentially, her submission was that all these documents were statements for the purposes of section 2 and should be admitted in evidence and should form findings in fact insofar as they had not been the subject of controversy, provided their contents consisted of matters of which direct oral evidence would have been admissible. The same, she said, for the avoidance of doubt, applied to the affidavits and to the reports. Esto any of them were the subject of controversy, I had to weigh their content with the conflicting evidence and come to a conclusion as to which evidence should be preferred. The representatives of the respondents made no competing submissions and it seemed to me, particularly on a consideration of the opinion of Sheriff I.D. Macphail Q.C, as he then was, in the former case, to which great weight should be attached particularly on the law of evidence and, especially, hearsay, that Mrs. Evans was correct in her submissions. I have therefore considered all the documents lodged and have made findings-in-fact as appropriate having regard to their content, whether their content was or was not the subject of controversy.

Application of the European Convention on Human Rights to the circumstances of the present case:

The relevant Articles of the Convention which fall to be considered are Art. 6 and Art. 8. These provide, so far as relevant :-

" 6. 1 In the determination of his civ il rights and obligations......everyone is entitled

to a fair and public hearing within a reasonable time by an independent and

impartial tribunal established by law. Judgment shall be pronounced

publicly......"

8. 1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

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 and morals, or for the protection of the rights and freedoms of others."

There seemed to be something of a lack of awareness or at least a reluctance to acknowledge, on the part of the petitioners, that every petition for a declaration that a child should be freed for adoption, dispensing with the consent of the natural parent(s) to adoption is a prima facie breach of Art. 8 requiring to be justified by reference to one of the exceptions. Certainly it was difficult to see that that was understood by social work staff or at least the majority of them who gave evidence in this case. Mrs. Evans referred to two European Court decisions in support of the petitioner's position, namely Johansen v Norway and K and T v Finland and it is instructive in considering the judgments in both these cases to observe just how much trouble the judicial and administrative authorities appeared to have encountered in dealing with cases where children were the subject of attempts to remove them permanently from their natural parents, notwithstanding that the two countries concerned are regarded as socially advanced societies with significant experience of the operation of the Convention. The bottom line in both cases was that the European Court of Human Rights acknowledged that the procedures in both countries had been operated in accordance with the law for dealing with child welfare issues and that the laws designed to protect children were in pursuit of a legitimate aim. In particular, it was accepted that, notwithstanding the terms of Art. 8, there were cases where the interests of the child must override the interests of the parents.

In the present case Mrs. Evans observed that particular criticism had been levelled at the petitioners' failure to permit the parents to attend and/or be represented before the Adoption and Fostering Panel. Under reference to the Inner House decision in Dundee City Council v M, she submitted that such criticism proceeded upon a mistaken understanding of adoption law and practice. Using the instant case as an illustration, she made the point that there had been already a number of important decisions made in this case. Two child protection orders had been granted on application to the sheriff. There had been associated procedure at the children's hearing which had twice led to named place supervision requirements under section 70 of the 1995 Act. Decisions of the children's hearing could be appealed to the sheriff under section 51 of the Act and could be the subject of regular review, in relation to supervision requirements in terms of section 73. The grounds and statement of facts in support of any application could be referred in terms of section 68 to the sheriff for determination of the facts and of whether the particular ground was made out and there were rights of appeal to higher courts from decisions of the sheriff. Both the children's hearings and the sheriff were independent and impartial tribunals. In the present case, no decision of the children's hearings had been successfully appealed. The respondents had been legally represented at all stages of the proceedings and had had ample opportunity to state their positions and to adduce evidence in support of it. These decisions, of the children's hearings and the sheriffs, were of greater consequence to the process of removal of the children from their biological parents than what was in reality an administrative decision by the Adoption and Fostering Panel as to how best the process of permanence in this case might be achieved. The principal legal process, however, submitted Mrs. Evans, was the present one where the respondents were at liberty to argue both that they had not done anything which would give rise to a ground for dispensing with their consent and that, in any event, the court should exercise its discretion not to grant the freeing order as to do so would be contrary to the best interests of the child.

The evidence demonstrated that the vast majority of local authorities in Scotland did not permit natural parents to have a right of audience at the Adoption and Fostering Panel but made Mrs. Evans made the point that the recommendation both of the Panel and of the Agency Decision Maker had, in any event, to be ratified by the children's hearing. She referred to the provisions of section 73(4)(c) and (13) of the 1995 Act. The natural parents had a right to attend and be represented at that hearing which she understood they had exercised.

It could not therefore be said that in this particular respect the effect of not being permitted to attend at the Adoption and Fostering Panel was of such significance that it deprived the respondents of their Art. 6 rights. More generally, the procedures had been sufficiently fair and open as to be consistent with the requirements of Art. 6.

It had appeared to be a major plank of Mr. Sharpe's cross-examination that there had been a fundamental lack of independence on the part of the petitioners' social work department, illustrated by reports being written to support permanence by the social worker who remained the social worker allocated to two of J's older children, by the disinclination of the department to implement a request from a children's hearing for an independent assessment of the parenting abilities of McL and J and by the report on the assessment of contact being written by CC, a member of the permanence team, whose avowed aim was to terminate contact to facilitate freeing for adoption. I have to say that, at least in the course of the conduct of the litigation, I thought that there was some merit in this line of criticism but I cannot say that it was clearly focussed in the submissions ultimately made to me. What he did say was that the petitioners made an unreasonably swift decision to proceed to seek a permanent alternative solution for the care of C after the second child protection application had been made and closed their "corporate eyes" to any alternative solution. That, in conjunction with the refusal to permit the attendance of the parents and to allow them to participate in the proceedings of the Adoption and Fostering Panel constituted "flagrant breaches" of Art. 6 and 8. Dundee City Council is a public authority and must comply with the provisions of the European Convention. Any interference by them with family life must be proportionate. He referred me to "A Practical Guide to Human Rights in Scotland" edited by Lord Reed, and especially to the passages at pp.181 -182. There appears to be something incorrect about that reference since that appears to relate to torture and inhuman or degrading treatment which would constitute a breach of Art. 3 and has nothing to do with the present circumstances. He also referred to the test for the application of Art. 8 which he said was to be found in Johansen v Norway, which test, he submitted, had not been met by the local authority in this case. In fact he described the approach of the petitioners as demonstrating a "contemptuous disregard" for the principles underlying Art. 8. Their training of social workers on the import of Art. 8 in particular and the Convention generally had, on the evidence, been woefully inadequate. There had to be "openness, transparency, fairness and independence." In the present case, there was no independent element to the assessment or decision making process. Those doing the assessments made the decisions and vice versa. The request from the children's hearing for an independent review was circumvented. Reports by SR and CC were written to support conclusions formed before they put pen to paper. It had been acknowledged by Lynne Cameron in the context of her being in charge of the Adoption and Fostering Panel that the reality was that panel members would not and could not effectively look beyond the terms of the reports placed before them by the social work department. There was, therefore, no effective contradictor before the Panel.

Mr. Simpson for the second respondent acknowledged that his submissions on the application to this case of the Convention had been fundamentally undermined by the decision in Dundee City Council v M. It is, accordingly, to that judgment of the Inner House that I first turn in considering this issue.

The case is clear authority for the proposition that the sheriff should not dismiss a petition to free a child for adoption because he considered there had been a procedural irregularity. He should consider the merits, obviously including evidence and submissions about any such irregularity, and then reach a determination which considered all the issues. That approach, if I may respectfully say so, best supports the plea from Dr. Cairns in her evidence which I accepted as both accurate and apposite, that the most important aspects for a child were not to be in limbo for any longer than necessary and if adoption were to be the outcome to ensure, so far as possible commensurate with the rights of other parties involved, that that would occur at the earliest possible age.

The case is also authority for the proposition that any remedy to be granted must avoid undermining the primary purpose of the proceedings themselves i.e. whether a child should be freed for adoption.

It is particularly authority for the proposition that a decision of the Adoption and Fostering Panel did not determine the rights of natural parents and, since it did not determine them, it could not infringe them. These rights were determined by the children's hearing where the natural parents had a right to be present and a right of audience and a right to be represented, as well as rights of appeal and review. In particular, the rights of the natural parents were determined by the hearing before the sheriff of the petition to free the child for adoption, that being the decision which fundamentally affected the rights of the parents. It was, in the Opinion of the Inner House, significant that the decisions of the Adoption and Fostering Panel were not legally irrevocable, that the respondents were promptly informed of them and that they had an opportunity to influence the course of events by attending and making representations to the children's hearing and, in due course, before the sheriff. They, the respondents, had been involved in the process, seen as a whole, to a degree sufficient to afford due respect to fairness and to the protection of their interests. Their Art. 8 rights had not been infringed.

There is, at least in relation to the issues arising from the recommendations of the Adoption and Fostering Panel, no material difference between that case and the present and I am accordingly bound by the determination of the Inner House, with which, in any event, I respectfully concur. I would go further and say that I consider that the same principle extends to the criticisms made of the individual social workers in this case. Esto they demonstrated a lack of independence, and I rather think that that depends on how you define independence in this context, their lack of independence could and should have been explored in hearings before the children's hearing and was explored in the course of the hearing before me in which proceedings I am, of course, free to determine whether the opinions expressed by the social workers have an adequate factual basis and are otherwise correct. Mrs. Evans in her submissions made a stalwart defence of the position of local authorities in general and Dundee City Council in particular, arguing that they were trusted to undertake certain statutory duties in relation to children and that it should not be assumed that they would not carry out these duties responsibly and objectively. While I admired her loyalty and while in her case it was true, that, unfortunately, is not the universal experience in dealing with local authorities, though I accept that it should not be assumed that they will not fulfil their duties correctly, and that is why the independent elements of the children's hearing and the courts are important. Of course, the local authority being a public authority has an obligation to act in a manner compatible with the provisions of the European Convention by virtue of section 6 of the Human Rights Act, 1998, but that must be determined by looking at the process or processes as a whole, by determining as the Inner House have done in a manner which is binding upon me, whether the law of Scotland in relation to freeing for adoption and the associated procedures is so compatible and by applying that law broadly to determine matters in such a way that the fundamental point of the process is not undermined by an excessive over-emphasis on procedure.

In the present case, I think there was ample evidence to enable me to reach conclusions in accordance with the law of Scotland as so held to be ECHR compliant in Dundee City Council v M. I see no material difference between the present case and the circumstances considered generally in Johansen v Norway and K and T v Finland. While I have made it clear that I do consider that there is scope for criticism of the social workers, it is in the context of determining that the child, C, should ever have been returned to McL and J rather than in relation to her removal. I consider that, where a child has been removed against a background of grave concern that she was not thriving and was losing weight, at eight weeks, for no apparent organic reason, with all the other unsatisfactory aspects of her care at that stage, and was then the subject of a comprehensive failure so far as an attempt at rehabilitation is concerned, it simply cannot be argued that there is anything wrong with the conclusion following on the second child protection order granted in relation to this child that the objective of the social work department should be to secure an alternative permanent solution for the child. Nor do I consider that there is any merit in the criticism that was directed at CC for undertaking tasks which were assigned to her in her capacity as a member of the permanence team where her function was to facilitate a permanent solution. It may be that the social work department should look again at the propriety of a member of the permanence team preparing a contact assessment report but I do not say that it would be wrong for such a person to prepare such a report, certainly in circumstances where, as here, there was a strong body of evidence from social care assistants supervising contact and from foster carers, including respite carers, that the child was reacting adversely to contact, especially in its latter stages.

I am satisfied, looking at the whole circumstances, that the rights of the parents under Art. 6 have not been breached and that, insofar as their rights under Art. 8 have been the subject of prima facie breach, then that breach was justified having regard to the rights of the child and the paramount consideration of the welfare of the child, given the basic requirement to ensure that the child was protected from the continuing consequences of bad parenting.

Decision and reasons:

I have set out in the foregoing sections why I consider that all the peripheral statutory requisites are made out on the facts of this case and so I am now left to consider whether any of the grounds for dispensation with consent, not already excluded as a matter of law, is made out on the evidence in this case. I then would require to consider whether it would be right, having regard to C's welfare as the paramount consideration, either to grant or not grant the order and also deal with the ancillary and inter-related issue of the discharge of the supervision requirement.

In relation to the issue of dispensation of consent, I have as a matter of law, to look at the position of each parent separately, even though I am of the opinion that they are jointly at fault here. With regard first to J, the grounds remaining for consideration are 16(2)(b) and 16(2)(c). I think it makes sense to consider the latter first as if J has persistently failed without reasonable cause to fulfil the parental responsibility to safeguard and promote C's health, development and welfare then, given the additional factor that C has been out of her care since March 1^st, 2001, it is difficult to see how a reasonable objective parent could conclude that it would be in the interests of the child to uproot her from her present settled and satisfactory environment, as reported in evidence by CC, by Mrs. Foulis, by HF and in the unchallenged affidavit of the prospective adoptive mother. Suffice it to say, despite the criticisms made of SR and JF, there is a welter of evidence which supports the conclusion that, from the time of C's birth, J has persistently failed without reasonable excuse to fulfil the relevant parental responsibility. C was J's fourth child. At the time of her birth J was, at least notionally, living with the father of her third child. The child was discharged from hospital into the care of its father, McL, only, that itself being an unusual state of affairs, particularly when he had no parental rights or responsibilities as a matter of law. McL was known to J to have an alcohol addiction problem of such ferocity that no reasonable parent would have contemplated trusting him with their new born child. Despite advice from the health visitor to the contrary, he kept her in a house where three people, including him, were smoking, leading to her being exposed to the risk of respiratory disorder. McL would not co-operate with the health visitor or the social worker who had been appointed to the child prior to its birth. J also misled them and failed to co-operate in producing the child for observation and examination by the health visitor. A reasonable parent would ensure that a newborn child was made available on a regular basis to an expert in infant care who would be able to assess whether there were any health care problems and part of whose function is to advise new parents on baby care. As far as the witnesses could discover, the newborn baby was being shuttled around various locations, resulting in a lack of routine, a lack of an identifiable safe home environment and an inability on the part of social worker and health visitor both to see the baby regularly and to assess the home situation for the state of its hygiene, to see that the baby was being looked after properly, and to see that the parents had access to all the necessary equipment, most notably sterilising equipment. A reasonable parent would not have exposed a newborn baby to such an inconsistent and unacceptable set of risks. While I cannot conclude that J knew that the child was left in the care of Maureen Kennedy, a disabled lady, in the company of Norman Young, a Schedule One offender, she knew who Norman Young was but did not know at times where her baby was or who was looking after her. A reasonable mother would not have countenanced a position wherein she did not know where her newborn baby was.

Most significantly it is almost unheard of for a newborn baby to lose weight in the first few weeks of life in the absence of some obvious organic cause. C lost five ounces in a week. No organic cause was found. She had simply not been fed properly. No reasonable parent would have failed to feed their newborn child properly. Any reasonable parent who was unsure of how to feed a child or how to ensure that formula milk was properly prepared would have sought advice either from a family member or an experienced professional such as a health visitor. J failed to feed her newborn baby properly or to seek advice as to how it should be done, endangering her health.

There is clear evidence from SR and JF that on 23^rd. May, 2000, McL had care of the child while he was drinking. No reasonable mother would have left a newborn baby in the care of a man with a well known significant alcohol abuse problem when he was drinking.

There is a lot of evidence, from SR, JF, from records kept of contact sessions, from CC and from HF which suggests that J demonstrated no or very little maternal instinct and that there was no attachment between mother and child. No reasonable mother would have failed to love and care for her child and nurture her to assist her to thrive and thus cause her to be at risk of being emotionally deprived.

There is also a body of evidence, including admissions from

McL, of a level of violence against J and her older children S and P to which C was exposed - having on at least one occasion been in McL's arms while he was evincing violence. No reasonable parent would have exposed a child of only a few weeks or at worst months of age to the presence of violence against one of the child's parents and the child's half siblings in the presence of the child.

There is a body of evidence both in records and to a lesser extent from SR and JF that J was incapable of maintaining her house in a hygienic condition. Records indicate that Maggie Cussick of the Beechwood Child and Family Centre was so appalled at the conditions in JH Snr.'s home, where J was living with the older children at the time, that she would not agree to parenting classes taking place again at that location. There is another record that a housing officer with Dundee City Council on resuming control of the flat in March, 2001, of which McL and J had been given the tenancy in August 2000, found it to be completely filthy throughout with almost all of its contents including items such a cooker, table and chairs, beds and bedding and a three piece suite in such disgusting conditions that they required to be disposed of immediately. No reasonable parent responsible for the care of a child under one year of age would have allowed such unhygienic conditions to prevail persistently in the home in which she was accommodated.

The question is begged whether any reasonable parent would have permitted conditions in relation to a child to get to the state where a child protection order had to be taken, but let it be that that was a reasonable thing to have happened, no reasonable parent would have failed to make every effort to work with the social work department and the health authorities to address her deficits, nor would a reasonable parent have continued to associate with someone whose alcohol abuse problem was so bad that he was seen to suffer from tremors at a time when she was seeking to persuade the authorities to restore her child to her. The evidence demonstrates that when SR and JF attempted to get McL and J to engage with them and their colleagues in learning parenting skills, they spent most of the time fighting with each other and learned nothing. When SR and Maggie Cussick went to JH Snr's home to engage in the process there, J and all the other occupants of the house, including three school age children, were still in bed at 09.00 and could not initially be roused. A reasonable parent concerned about the health, welfare and development of her child would have participated in the formulation of and would have adhered to a clear plan for the return of the child and would not have vacillated as to with which of her two current admirers, if any, she was going to reside, would have taken advantage of the social work department's assistance in finding her alternative accommodation and have stuck with that alternative accommodation and would not have created circumstances in which she had four different addresses in as many weeks, rendering the process of assessment of her by social workers virtually impossible.

A reasonable parent would not have contemplated resuming cohabitation with McL with a view to the return of C to the family home at a time when he was drinking heavily. Even McL accepted in the course of his evidence that he had been drinking heavily throughout this period and that really his drinking only moderated after he was prescribed a drug of the antabuse variety after the second child protection order.

A reasonable parent whose child had been removed but was then returned would have co-operated as fully as possible with the authorities with a view to retaining the child in her care and to safeguarding and promoting that child's health, welfare and development. SR and JF discussed with J that on C's return she would attend weekly at a mother and toddler group and would attend all appointments with her general practitioner and health visitor. J attended one out of five possible mother and toddler group appointments and missed a number of significant appointments with the health visitor and general practitioner including appointments for inoculations. Similarly, a reasonable parent would have ensured that the home for the baby was kept in a hygienic state. Instead, there was evidence from SR, JF and McL that the house was filthy, compounded by evidence that the older children, when they did appear at school, which was not often, did so in clothes that were filthy and led to their being the subject of taunts and abuse by other children. Similarly, no reasonable parent intent on keeping her child would have remained with a drunken cohabitee who challenged the children's social worker in a drunken aggressive manner or who assaulted the older children by pushing them about and by kicking and slapping them, as he and J admitted had occurred and which drunken behaviour was recorded in detail and spoken to in evidence by SR, with the complaints of assaults by the children also being recorded by her. Generally McL's behaviour, which was well recorded and was spoken to in relation to several of its facets, by SR, JF, HF and CC, was appalling, was unnecessarily aggressive and consisted of exaggerating trivial issues.

Finally, no reasonable parent would have left their eleven month old child in the care of a fourteen year old daughter while attending a meeting with social workers to consider aspects of the child's welfare.

It is quite apparent from the foregoing that during the two periods, the first of the first eight weeks of the child's life, the second from when the child was about seven months old till she was about eleven months old, while she was in the care of J or at least supposedly in the care of J, she was exposed to persistent failures to feed her properly, to keep the house in which she was living clean and to protect her from exposure to emotional abuse when her drunken father either physically or at least verbally abused J and her older children. Her health was potentially prejudiced by J's failure to take her to regular appointments with her health visitor and general practitioner and to take her for inoculations. J herself seemed incapable of forming any real attachment to the child and demonstrated no sign of any maternal instinct, adding to the risk of emotional distress. That lack of attachment was observed and repeatedly remarked upon in relation to contact sessions from March 2001 through to their termination in May, 2002, when there was evidence from HF, CC and from reports prepared by various social care assistants who collected C and took her to and from contact sessions and who supervised the contact sessions, that C was becoming increasingly upset by the contact sessions and was demonstrating increasing reluctance to attend. A reasonable, objective parent would have recognised that and stopped insisting on contact taking place.

The evidence supporting the conclusion that J has persistently failed, without reasonable excuse, to fulfil the parental responsibility of safeguarding and promoting C's health, development and welfare is overwhelming and I have no hesitation in concluding that this ground for dispensing with her consent to C being freed for adoption is established.

For all the foregoing reasons to which I would add the recognition that C thrived while in the care of SS, the original foster carer during the first period of separation and HF during the period from May, 2001 to May, 2002, whereas she had not thrived whilst with J and McL, that she became increasingly distressed over contact with J in particular between May, 2001 and May, 2002, that J has had no physical contact with her since May, 2002 and that in the meantime C has settled well, has been seen to be thriving, has been seen to have suffered from a developmental delay in relation to her speech which is being addressed by therapy and is having her health, welfare and development promoted in the family setting with her current prospective adopters, I further conclude that J is unreasonably withholding her agreement to C being freed for adoption, as no reasonable parent objectively considering the whole circumstances of the case and regarding the welfare of the child as paramount could contemplate the return of the child to persons who will now be virtual strangers to her and in whose former care she failed to thrive, she failed to be fed properly and she failed to be given proper care and nurturing and to form any real attachment.

For the reasons set out in the foregoing paragraph and having regard to McL's conduct since the child was born, including taking no steps, until he learned she was the subject of a petition to free her for adoption, to secure any parental rights or responsibilities in relation to her, in removing her from hospital when she was newly born and keeping her from her mother, physically preventing any bond developing between them, on account of his desire to manipulate J and to keep the child away from the home of JH Snr., irrespective of the harm he was doing to the child, in thus preventing her monitoring by a health visitor and by a social worker, in thus preventing her have a safe and secure home environment, instead of which she was moved around like a parcel and kept in unsuitable, smoky accommodation occupied by a disabled lady who was visited by a known Schedule One offender, in having her in his sole care when he was under the influence of drink, in treating her with contempt by perpetrating violence and abuse on J and on C's half siblings S and P while in her presence, in failing to take positive action to try to address his parenting deficits when given the opportunity, in failing to ensure that C was fed properly and kept in a safe, clean environment and in failing to maintain regular positive contact with her after her second removal into care, again I have no hesitation in reaching the conclusion that no reasonable father regarding the welfare of his child as the paramount consideration would fail to recognise how much better off the child would be by remaining in her present home and being freed for adoption.

Accordingly, in respect of both McL and J, again I have no hesitation in reaching the conclusion that in each of their cases the ground for dispensing with their consent to C being freed for adoption, having regard to their failure to agree, set out in section 16(2)(b) is established.

Given the foregoing catalogue of disasters in relation to the relatively short period of this child's life when she was in the care of McL and J and given all the evidence, most particularly from Mrs. Foulis and Dr. Cairns, but also from CC, of how well she is settled with her prospective adoptive parents, again I have no hesitation in reaching the conclusion that when one has regard to the paramount consideration of the welfare of C for the rest of her life that she should be freed for adoption. While I have been critical of SR and JF in some of the decisions which they reached in relation to the care of C and the response of the social work department to that lack of care, that criticism pales beside the contempt I feel for McL, who does not have the mitigating factor of limited intellect, but who was prepared and did use this unfortunate baby as a bargaining tool to get what he wanted to achieve, without regard to her welfare, to her needs as a newborn child, to the well recognised circumstances of professional health workers monitoring a new born child and thus putting her at risk, at continuing to keep her in his sole care when he was drinking heavily again putting her at substantial risk and in interfering with any prospect of her forming any kind of relationship with her mother. Why J has stuck with him, goodness only knows.

It follows, since I am plainly of a mind to make a declaration freeing C for adoption, that it would be better for C that such an order be made rather than that no order be made. Similarly, it follows if I am to grant the petition and declare C free for adoption as I now do, that I should also make an order in terms of Section 18(9) of the 1978 Act determining that the current named place supervision requirement shall forthwith cease to be effective.

Finally, on the subject of the expenses of the cause, as there are a number of potentially relevant considerations, I have assigned a separate hearing on expenses on a date to be assigned.