Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B2/15/08

JUDGEMENT of Sheriff D. J. Cusine.

in causa

ABERDEEN CITY COUNCIL, Town House, Broad Street, Aberdeen, AB10 1AQ

PETITIONERS

against

JM,

FIRST RESPONDENT

and

AL.

SECOND RESPONDENT

For an Order to free for adoption under the Adoption (Scotland) Act 1978

The child C, born 26^th March 2007

ABERDEEN, 23 September, 2010.

The sheriff, having resumed consideration of the whole cause:-

(a) finds the following facts to be admitted or proved:

1.     The Petitioners are Aberdeen City Council, Town House, Broad Street, Aberdeen, AB10 1AQ. In terms of the Adoption (Scotland) Act 1978, ("the 1978 Act.") the Petitioners are an Adoption agency.

2.     The First Respondent is JM, the mother of the child, C born 26^th March 2007. JM formerly resided at an address in Aberdeen and is now at another address in Aberdeen. JM has Parental Rights and Responsibilities in respect of the said child.

3.     The Second Respondent is AL, the father of the said child. AL formerly resided at the first address of JM. AL has Parental Rights and Responsibilities in respect of the said child.

4.     JM and AL are also the parents of KL born 11^th July 2005 and SL born 4^th June 2006 who have subsequently been freed for adoption by an order of this court and thereafter have been adopted. They are the siblings of C.

5.     The Social Work Service of the Petitioners became involved with JM and AL in relation to their eldest child, KL, and have subsequently been involved with them since in relation to all three children.

6.     Following C's birth, he was discharged from hospital on 4^th April 2007 and was placed in foster care under section 25 of the Children (Scotland) Act 1995 on a voluntary basis. Given the previous concerns relating to the older siblings, KL and SL, a Parenting Assessment was undertaken.

7.     On 22^nd August 2007, JM and AL indicated to the Social Work Service that they wished C to be returned to their care.

8.     The Social Work Service thereafter sought a Child Protection Order from this court in respect of C. This was granted on 22^nd August 2007.

9.     C was referred to the Children's Reporter of Aberdeen City Council and the grounds of referral were established at this court on 30^th October 2007 It was determined that in terms of section 52(2)(c) of the Children (Scotland) Act 1995, C would be likely to suffer unnecessarily, or be impaired seriously in his health or development, due to lack of parental care (conform to the First Respondent's production in the Third Inventory 6/3.1).

10. On 21^st November 2007 a Children's Reporter Hearing imposed a Supervision Requirement in respect of C that he reside with AR, the prospective adopter, but provided that JM and AL should have supervised contact for three weekly sessions of two hours. The Petitioners' production 5/1/4.14 is a true and accurate record of the decision of the said Hearing. C is still the subject of that Supervision Requirement.

11. A meeting of the Aberdeen City Council Adoption and Fostering Panel took place on 21^st November 2007 and it recommended that it was in the best interests of C that he be adopted as this would best meet his life-long needs. It was decided that a Freeing for Adoption Order should be pursued. A decision in accordance with this recommendation was made by Sandra Power of the Social Work Service and she notified the parents accordingly. The Petitioners' production 5/1/1.3 is an accurate record of the discussions and decisions made at the said Panel.

12. A Looked After Child Review ("LAC") was held on 20^th November 2007. The Review recommended that the Freeing Order for C should be pursued. The Petitioners' production 5/1/2.11 is an accurate record of the discussions and decisions made at the said Review.

13. A Children's Reporter Hearing was held on 14^th February 2008. At the Hearing, the Panel made recommendations to the sheriff. The Panel agreed to recommend that C be freed for adoption. The Panel decided that JM and AL had not demonstrated enough sustained progress in their ability to care for C. AL put his emotional needs before those of C, as evidenced by not participating in contact. Historically, there had been issues of neglect with the other two children and the Panel's opinion was that neither parent had shown an awareness or capability of dealing with this and making the appropriate changes. The parents had had a large amount of professional input, but had been unable to make good use of this, and because C is young and vulnerable, without the necessary changes to their parenting, he would be at risk in their care. At the same Hearing, it was decided the Supervision Requirement for C would be continued and that the parental contact would one hour, twice per week, such contact being supervised by the Social Work Service. The Petitioners' production number 5/1/4.19 is a true and accurate record of the decision made at the said Hearing.

14. A Children's Reporter Hearing was held on 10^th April 2008 at which the Supervision Requirement for C was continued whereby he continued to reside with AR, the prospective adopter, MT her partner, and their child M, aged 13. At the same Hearing, contact for JM was varied whereby she was to have contact twice per week, each session lasting one and a half hours, to be supervised by the Social Work Service. Contact for AL was varied so that he would have contact twice per week, each contact session lasting one hour, with the contact being supervised by the Social Work Department. The Petitioners' production number 5/1/4.21 is an accurate record of the decision of the Hearing.

15. A Parenting Assessment was undertaken by the Social Work Service of Aberdeen City Council and a report was prepared by Miss Meena Tanna, Social Worker, and dated 23^rd August 2007. The Petitioners' production 5/1/5.2 is a copy of the report prepared by Meena Tanna. Miss Tanna concluded that the parents had not demonstrated that their parenting of C would be "good enough", if he was to return home to their sole care. Miss Tanna concluded that C should not be rehabilitated to his parents' care and that the decisions already made for his long-term care should be pursued.

16. A Parenting Assessment was undertaken also on behalf of Aberdeen City Council and a report dated 15^th August 2007 was prepared and produced by Margaret Watt, Family Support Worker. The Petitioners' production 5/1/5.3 is a copy of the report prepared by her. She concluded that although the parents had cooperated with professionals during the Parenting Assessment and there had been some improvement in their care of C, there were significant concerns regarding their ability to look after a young baby safely. She was further of the opinion that the parents had still not addressed the significant risk factors which were an issue with the two older children, who had subsequently been freed for adoption, e.g. smoking, heating and attention-span of the parents. In particular, JM's lack of sustained commitments with AL, and as they had put their own needs and those of their extended family first, they found it difficult to prioritise C's needs. JM and AL had both failed to attend a significant number of parenting classes or cookery classes which were to help them and which they had requested. That again questioned their commitment and sustainability. There were issues regarding the relationship between AL and JM. There were concerns about JM in relation to past experiences in her own life and how this affected her ability to show emotion to C and to the older two children.

17. A report dated 12^th November 2007 was prepared by Mr Barry Fry, Psychologist, on the instructions of the legal representatives of JM, (Petitioners' production 5/1/5.1.) The report is an accurate record of Mr Fry's expert findings, summary and recommendations.

18. A further report dated 28^th September 2008 was prepared by Mr Fry, on the instructions of the legal representatives of JM, (the First Respondent's production 6/1.1.) The report is an accurate record of Mr Fry's expert findings, summary and recommendations.

19. A further report dated 28^th January 2009 was prepared by Mr Fry, on the instructions of legal representatives of JM (the First Respondent's production 6/3.3.) The report is an accurate record of Mr Fry's expert findings, summary and recommendations.

20. Thereafter joint reports dated May 2009 and 18 August 2009 were prepared by Mr Barry Fry and Mrs Sheila Archibald, Social Worker, on the joint instructions of the legal representatives of all the parties to the proceedings, (the First Respondent's production numbers 6/3.4 and 6/3.7 and the Petitioners' production number 5/5/12.1.) The reports are an accurate record of Mr Fry's and Mrs Archibald's expert findings, summaries and recommendations.

21. A report dated 20^th June 2010 was prepared by Professor James Furnell, Consultant Psychologist, on the instructions of the legal representatives of JM (the First Repondent's production number 6/4.1.) The report is an accurate record of Professor Furnell's expert findings, summary and recommendations.

22. C's parents have separated as was determined following an Evidential Hearing. (Interlocutor of this court dated 14^th December 2009.)

23. C has had more or less regular contact with JM since his birth. JM has attended contact sessions reliably and in an organised and positive manner. C is clearly acquainted with JM and she deals very well with him and they get on well together during periods of contact and they enjoy each other's company. He calls JM "Mummy."

24. JM's parenting skills have improved considerably and they are sufficient to allow her to care appropriately for C, were he to be returned to her permanent care.

25. JM has the appropriate parenting skills that could potentially encourage attachments of a child of C's age.

26. C has a hierarchy of attachments. His primary attachment is to the foster family. AR, the foster carer/prospective adopter, is the person to whom the child has his primary attachment. He calls her "Mummy" and her partner "Daddy." The child has a stable family life with them, and is a happy child.

27. It is unlikely that there is a significant attachment to the birth mother, JM, for whom C has an affectionate familiarity, as, for example, a nursery nurse of the child's acquaintance.

28. Professor Furnell's report in para. 1 contains a brief synopsis of the definition of "attachment" based on the authorities of John Bowlby and Professor Sir Michael Rutter (the First Respondent's production number 6/4.1, page 19).

29. In terms of Professor Furnell's report dated 20^th June 2010, it is agreed by both Mr Fry and Professor Furnell that, "in essential terms, in terms of attachment, it would appear that rehabilitation would require the forming of an attachment to JM, and the loss of an attachment to AR, both for C." (the First Respondent's production number 6/4.1. at page 20, the last sentence of the first paragraph)

30. The process of any potential rehabilitation of C to JM would have to be a planned, gradual process, overseen by a senior member from Social Work Services in whom both parties have confidence. It would have to be initiated by that Service. JM's family members would also need to be involved and they would need to initiate this. Such involvement might last several months.

31. Professor Furnell and Mr Barry Fry agree that, "There is always the risk that once the first part of this process had been achieved, that the second part, that is the re-attachment to the other care figure might not occur satisfactorily, leaving the child in a disastrous limbo in emotional terms." (the First Respondent's production number 6/4.1, page 20, last sentence of the second paragraph.)

32. There is nothing to suggest that the first seven years of JM's life were not stable and secure, but the death of her adoptive mother was a significant event to her emotional detriment.

33. JM has said that she is prepared to cooperate with the Social Work Service in the rehabilitation of C to her permanent care in a planned and gradual process. She has not got on well with some members of that Service in the past and would wish others members to be involved.

34. JM told Professor Furnell that she has a brother Paul, aged 35, who has care of three children aged 17, 15, and 8, whom she would as her primary or initial source of support. She has another brother, John, on whom she believes she could also rely. However, JM did not draw the existence of these family members to the attention of those conducting LAC reviews. There is mention in the Minutes of a meeting held on 21 November 2007 of the Petitioners' Adoption and Fostering Panel (Petitioner's Production No. 1.3, p8) to a letter written by JM and AL that they know of "No extended family member who could offer permanent care for C.

35. JM is currently in arrears with her rent and would not be allocated another house by the local authority until some effort is made at least to reduce the arrears. Until that happens, it is likely that JM would have to reside with her adoptive father, Mr John M.

36. In the past, John M has not had a good relationship with the Petitioners' Social Work Department and he revealed to Professsor Furnell that he is "public enemy number one to the Social Work Department." (the First Respondent's production number 6/4.1, page 13) At present, he is not permitted by the local authority to see C.

37. JM has been required to provide her agreement to C being freed for adoption, but she refuses to do so. She maintains that she is not withholding her agreement unreasonably. She has provided full reasons for her view that she is being reasonable in withholding her consent.

38. The following risks (which are accepted by both Mr Fry and Professor Furnell) could arise where any child is removed from its primary carer to another, viz:- (i) "A lack of emotional spontaneity and a flattening of effect; (ii) periodic distress and lowered social responsiveness; (iii) emotional withdrawal; (iv) troublesome and troubled behaviour, through which the child acted out his feelings; (v) hostility and oppositional behaviour directed at the birth mother (vi) grief-related feelings at his separation from his foster family and the loss of the positive components of a current relationship with the birth mother; (vii) short and medium-term resistance to the development of a new form of attachment to the birth mother; (viii) loss of trust in adults; (ix) some difficulties in forming attachments to people who might come into contact with him. His attachment would serve a very personal need-reducing purpose. He might bring a strong need of acceptance and self-confirmation to his relationships." ((the First Respondent's production number 6/3.7, page 10, para. 72)

39. Professor Furnell accepted that some or all of these concerns could arise with any child, but he doubted whether any psychologist could make them "C specific." He did not express a view about whether C should be returned to the permanent care of JM. However, he says in his report, "The first difficulty arises in that, given what appears to be a well-established attachment between C and AR, there would require to be, first of all, the diminution and loss of that attachment, prior to an attempted re-attachment of the child, but this time to his birth mother....There is always a risk that once the first part of this process had been achieved, the second part, that is, the reattachment to the other care figure, might not occur satisfactorily, leaving the child in a disastrous limbo in emotional terms. (the First Respondent's production number 6/4.1, page 20, last sentence of the second paragraph.). However, he also says, "[T]here do appear to be the likely measures in place, and hence the prospects for such rehabilitation are, in my view, more positive when considered comprehensively, than the position appearing to be promulgated by Mr Fry. (ibid, page 21.)

40. In the past, JM has been offered and accepted the need for professional counselling, in particular in relation to the loss of her adoptive mother, but has not recently attended any sessions.

(b) finds in fact and in law

(1)              that the first and second Respondents are each withholding their consent to a freeing order in respect of the child, C, unreasonably;

(2)              C's prospective adoptive family are an appropriate match in terms of his religious persuasion, racial origin and cultural and linguistic background, all in terms of s.6(1)(b) of the 1978 Act;

(3)              Because of his age, C is unable to express a view;

(4)              that there is no better alternative to a freeing order;

(5)              that C's welfare will be safeguarded and promoted by the making of an order freeing him for adoption.

THEREFORE GRANTS the prayer of the Petition and declares the child, C, born 26 March 2007, to be free for adoption; REVOKES the supervision order in respect of C; CERTIFIES Mr Barry Fry, Psychologist and Professor James R. G. Furnell, Consultant Psychologist, as skilled witnesses.

NOTE.

In this case, JM and AL, the natural parents of C, oppose the granting of a Freeing Order in respect of the child. It is accepted by their respective representatives and the solicitor for the Petitioners that whether the order should be granted turns to a large extent on the views expressed by Mr Fry and Professor Furnell. The Petitioners were represented by Mrs Reid, the first Respondent by Mr Brown and the second Respondent by Mr Lindsay, all solicitors.

Submissions for the Petitioners.

It was submitted that, in terms of s.16(2)(b) of the 1978 Act, C's parents are in all the circumstances, withholding their agreement unreasonably. In the circumstances, C should be freed for adoption.

Reference was made to s.6(1) of the 1978 Act. This requires the court to have regard to all the circumstances, but s.6(1)(a) provides that the court shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration; and under s.6(1)(b), the court shall have regard, so far as practicable, (i) to his views (if he wishes to express them) taking account of his age and maturity; and (ii) to his religious persuasion, racial origin and cultural and linguistic background.

Section 6(A) of the 1978 Act was added by the Children (Scotland) Act 1995 and it requires the Adoption Agency, before making any arrangements for the adoption of a child, to consider whether adoption is likely best to meet the needs of that child, or whether for him there is some better, practicable, alternative (and, if so, it shall not proceed with a freeing for adoption).

These requirements mirror the three overarching principles of the Children (Scotland) Act 1995 which require (a) the court to consider the welfare of the child to be paramount, (b) that regard to be had to the views of the child, and (c) that the court adhere to the minimum intervention principle and be satisfied that it is better that an order be made than that no order be made at all. With reference to the evidence, it was submitted that the statutory requirements are met.

C was born on 26 March 2007. After birth, he was accommodated under s. 25 of the Children (Scotland) Act 1995 and placed with foster carers. Following a short period of illness--he was diagnosed with a milk allergy--he was placed with his current foster carers/prospective adopters AR and MT on 19 April 2007. C has been subject to a s. 70 supervision requirement since 21 November 2007.

Both parents have parental responsibilities and rights in respect of C, but they are no longer a couple. AL is, however, supporting JM's opposition to the application.

It was accepted that JM has improved her parental skills, but it was submitted that this is too little too late.

I was referred to the following documents:- Adoption Agency Report, Curator ad Litem and Reporting Officer's Report, Children's Hearing Advice and Decisions, Adoption & Fostering Panel Minutes, LAC Review Minutes, Child Protection Case Conference Minutes, Parenting Assessment of JM and AL, Reports by Mr Fry and Sheila Archibald, Report by Professor Furnell, Joint Minute of Agreed and Disputed Issues between Mr Barry Fry and Professor Furnell

A number of pieces of historical documentation were produced. In accordance with the Practice Note issued by Sheriff Principal of Grampian, Highland and Islands at paragraph 4.3.3, it was submitted that consideration can be given to all reports placed before the court even if the authors have not been called to speak to them.

Reference was then made to the oral evidence:

(a) Evidence of Mr Fry (Expert Witness)

Several reports by Mr Fry been lodged in relation to the parents and later, two reports on JM, all between 2007 and 2010. It was submitted that Mr Fry has been measured, impartial and objective in his reports. His oral evidence was of the same standard. His view was that (i) to remove C from the prospective adopters to birth mother was an unacceptable risk; (ii) it is not justified; (iii) there is no guarantee of success; (iv) if there was a transfer from a family with whom he has primary attachment that has naturally occurred, into an engineered placement, there would be no guarantee of success; (v) there is a concern about the ability birth mother to manage prolonged distress; (vi) there is a concern about family support to birth mother which has not been present in the past; (vii) the birth mother's needs are being met by the returning C to her care, but not C's needs; (viii) there is a guarantee that C will react adversely; (ix) if there is not successful rehabilitation, that could leave C in a dangerous emotional limbo.

Reference was made to para. 72 of Mr Fry's Report dated 18 August 2009 (Petitioners' Production 10.2) detailing distress that C is more likely than not to experience, which may not be displayed all at one time, and may be of varying degrees, the fact that C's needs are being met by prospective adoptive parents, that C's primary attachment is to AR, the prospective adopter, and that C believes that AR and MT are his mother and father and M (the prospective adopters' own child) is his sister.

Reference was then made to the affidavit evidence from Susanne Sommerville, LAC review Senior Social Worker, Child Protection, about the role of LAC Review System, the role of Review Senior, and the review of LAC reviews chaired by Susanne Somerville and Lillian Flett. In planning for C's future, I was asked to consider the LAC Reviews, the Children's Hearings decisions, the views of the Adoption & Fostering Panel, the problems with rehabilitation, and contact and its current effect and the long-term willingness to facilitate contact on the part of the adoptive parents. I was also asked to consider what care by relatives there might be, the problems of long-term foster care, and the future for C, given that he is matched with the prospective adoptive family. On contact, I was referred to evidence given by Eleonor McKee and Andrew Devaney.

All of that should be contrasted with the Report of, and evidence from, Professor Furnell, who has not, on his own admission, had the involvement that Mr Fry has had with the family. Even Professor Furnell accepts that (i) there will be no guarantee of success; (ii) it could leave child in a disastrous limbo in emotional terms if unsuccessful; (iii) the process of rehabilitation will not be painless for C; (iv) there is likely to be adverse reaction, indeed inevitably by C; (v) that support is required during period of rehabilitation from JM's family, over a period of months, not weeks. He also accepts that the primary attachment is to prospective adopter, that attachment with JM is no more than one similar to a that of a familiar nursery nurse, that it will be C's behaviour would determine when rehabilitation is not working, classic signs of which are smearing faeces. Mr Fry said that he was not in a position to answer question of risk, but on questioning, perceived the risk to be less than Mr Fry did. Professor Furnell has not said that there is no risk, nor said there is a substantial risk, nor that it is an acceptable risk to C. It was submitted that these are crucial omissions.

Reference was made to the relevant case law. It is long established that there is a two-stage process in the decision which the court has to make. In Lothian Regional Council -v- A 1992 SLT 858, Lord President Hope, delivering the opinion of the court, said, (page 862 E, G.) "[I]t is necessary to approach the question whether the parents' agreement to an adoption order should be dispensed with in two stages. The first stage is to decide whether one or other of the grounds mentioned in s.16(2) has been established by the evidence. This requires a decision to be taken on a question which is essentially one of fact.... "The second stage is to decide whether, if one or other of the grounds in s.16(2) has been established, an order dispensing with the parent's agreement to an adoption order ought to be made. At this stage discretion must be exercised by the court, and it is plain that the court must do what s. 6 of the Act requires ...."

The first stage is to consider whether a ground set out in s.16 been established, i.e. is a person with parental rights and responsibilities unreasonably withholding consent? (s.16(2)(b).)

In connection with that, reference was made to the objective test explained in Lothian Regional Council -v- A supra and in D and D -v- F (IH) 1994 SCLR 417 which has been applied by courts when deciding whether or not a parent's decision to withhold agreement to an adoption is reasonable. In D and D -v- F, Lord President Hope delivering the opinion of the court, said, (at page 423B), that the court should not look at a parental decision and consider whether it amounts to a reasonable exercise of that parent's discretion. The court has to apply an objective test, taking into account the whole circumstances and ask whether a reasonable parent with a full knowledge of all these would have withheld agreement. It was submitted that other cases have referred to and applied that test, e.g. C -v- S 1996 SLT 1387 per Lord President Hope at 1393 G,H; B -v- C 1996 SLT 1370 Lord President Hope delivering the opinion of the court at 1373; G -v- M 1999 SC 439 at 448G, per Lord President Cullen.

It was submitted that, having regard to all the circumstances, what has been led in evidence including the whole history, the opportunities given to the parents, the support given, the benefit to C of long-term stability, and in particular, the damage to him were he to be moved now, I should conclude that a reasonable parent would not have withheld agreement to this freeing for adoption which is in the best interests of C.

The second stage has been described as the "welfare" stage. This requires the court to consider whether an order dispensing with consent should be made. At this stage, the court must exercise its discretion and must have regard to the requirements of s.6 of the 1978 Act. Regard must be had to all the facts and circumstances including the evidence of the Senior Social Worker, the Children's Hearing, the Report of the Curator Ad Litem and Reporting Officer, that of the Adoption & Fostering Panel, and Mr Fry's Reports. All of them have stated that adoption would be in the best lifelong interests of C. Notice has been taken of C's religious, racial, cultural and linguistic background and the evidence shows him to be well matched. There is no better, practicable alternative to freeing C for adoption for and that best meets his lifelong needs.

There is guidance from the case law on the application of the second, or welfare, stage of the test. Reference was made to Central Regional Council -v- M 1991 SCLR 300 at 303A, where Lord McCluskey, delivering the opinion of the court said, "it was the duty of the sheriff to identify all the circumstances that bore upon the issues before him and, in particular, to identify and spell out all the facts and opinions relating to the welfare of the child, to form and express a clear view as to what was needed to safeguard and promote the welfare of the child throughout her childhood and to deal expressly with the other matters referred to in s.6, or arising in the course of the hearing before him".

In the case of C -v- S 1996 SLT 1387, Lord President Hope said, at 1393(I),(K) "it is necessary to examine each factor with the welfare of the child as the primary consideration and to disregard those factors which are plainly in the sole interest of GS or Mr & Mrs C ..... In [the sheriff's] opinion [the mother's] whole approach towards recovering the child was self orientated and she had totally closed her mind as to the effects which this might have on the child".

In L -v- Central Regional Council 1990 SLT 818, the mother's lifestyle had improved, but the Extra Division held that, "in the long and troubled history of this family, the present capacity of Mrs L to care for her children is only one factor" (p. 822K). In FB and AB, Petitioners 1999 Fam.L.R.2, the mother had successfully reformed her previous drug-addicted lifestyle, but the court held that the welfare of the child was the most important consideration in terms of s. 6 of the 1978 Act. The sheriff found that, "the child would suffer most unfortunate consequences were she removed from the family of the petitioners to the care of the mother." The child had spent more than two and a half years with the prospective adopter.

It was submitted that these cases give some guidance on the approach to be adopted.

In the present case, it was submitted that the evidence makes it clear that a freeing order would safeguard and promote the welfare of C throughout his life. In terms of s.95 of the Children (Scotland) Act 1995, which amends s.6 of the 1978 Act, that is the issue the court has to consider. In determining that welfare, the opinions of the Adoption Agency and the Reporting Officer and Curator Ad Litem are of importance. Reference was made to Petition of AB and CD to Adopt X and Y 1990 SCLR 809 at 811 (Notes). The final reference was to the view expressed by Sheriff Principal Nicholson in Lothian Regional Council -v- S 1991 (unreported, 14 February 1991) where he recognised the practical circumstances in which a child, like C, may find himself. He said, "Even if the present Petition were refused, the child was still subject to a Supervision Requirement where there was no obligation on the Children's Hearing or the Local Authority to return the child to the care of her parents. In that event she would be left in a kind of limbo, possibly for the remainder of her childhood years, during which time she would neither be adopted nor returned to live with her parents. The mother's decision to refuse agreement to adoption was not therefore within the band of reasonable decisions open for a reasonable parent to make". That was a case on the former s. 18(7).

Having regard to the case law and the evidence of all the circumstances, it was submitted that: (a) a reasonable parent would not withhold consent to the proposed adoption. The parents should recognise from all of the reports and evidence that the best interests of their child lies with the secure environment of the prospective adopters and that for the lifelong care of C, a freeing for adoption order is in his best interests; (b) The parents are withholding their agreement unreasonably, s.16(2)(b); (c) The need to safeguard and promote C's welfare throughout his life is the court's paramount consideration and he should, therefore, be freed for adoption, in terms of s.6(1)(a) of the 1978 Act; (d) C is happy and very settled where he is and in many ways that is an expression of his views. However, he is too young to express those views verbally; (e) C's prospective adoptive family are an appropriate match in terms of his religious persuasion, racial origin and cultural and linguistic background, al in terms of s.6(1)(b); and (f) Adoption is likely best to meet C's needs and there is no better practicable alternative. Accordingly, it is better that the order to free be made than no order be made at all, in terms of s.6(A). C's parents signed a statement declaring there were no relative that would be in a position to offer C life-long sustainable care on 30 August 2007.

The blood relation does not outweigh the considerations, such as the great distress that C would be bound to feel if he were removed from what is agreed as a settled and happy environment that he knows as his family to a new and strange one with JM. The grounds set out in s.16(2)(b) have been established. Having regard to all the facts and circumstances, an order dispensing with consent of JM and AL should be made and an order granted declaring C free for adoption, and in the circumstances, the Supervision Order under s.70 of the Children (Scotland) Act 1995 ought to be revoked.

Submissions for the First Respondent .

I was invited to find the following:-

1.                 In all the circumstances, it is not appropriate that the Petitioners should have the crave of the Petition granted to make an order declaring that the child C should be freed for adoption and to dispense with the agreement (or consent) of JM and AL.

2.                 An opinion has been expressed by Mr Fry in relation to the risks of any potential rehabilitation of C to JM due to the breaking of the primary attachment he has to AR and the foster family as outlined by him in the joint report with Mrs Archibald dated 18^th August 2009 (the Petitioners' production 5/3/10.2, page 10 para. 72) Mr Fry was quite firm in his opinion that he had tailored these potential reactions to the potential breaking of the primary attachment for C from the general list of difficulties that might be expected with any child as outlined by him in para. 40 at page 6 of the said joint report dated 19^th August 2009. Mr Fry stated that he would expect potentially and more probably than not, some or all of these potential difficulties outlined in the said paragraph 72 to arise, but not necessarily all at the same time, or all of the same intensity, or of the same duration. Mr Fry did state that even if one of the difficulties were to arise, but not very intense, but were to last for any significant duration, this would have the same detrimental impact upon C as if one of the difficulties were to arise intensely.

3.                 Mr Fry gave evidence that JM would need support from both her family and the Social Work Service over a significant period to support any rehabilitation of C child back into her permanent full time care.

4.                 Professor Furnell identified in his report at pp. 13 and 14 family members who would be in a position to provide JM with such support as may be required. JM has indicated that she would be prepared to work with the Social Work Service, but not with the individual social worker who was previously responsible for C and whose opinion has clearly stated that she does not consider that JM should have C returned to her care and that C should accordingly be freed for adoption.

5.                 Mr Fry gave evidence that he is comparing the two households of JM and the prospective adopter AR. He admitted that when considering the merits or otherwise of returning a child to his birth family that he does compare what the child has at the moment against what he might have if he were to be moved. He said he would only feel comfortable if there were more positive benefits to the child in moving him before he would feel comfortable in recommending a change. Professor Furnell gave opinion that he did not consider that Mr Fry was applying the appropriate test in his consideration of the question of rehabilitation by having such a view. Given that Mr Fry should consider whether or not what was being offered by JM to care for the child is "good enough" as opposed to better than the care being provided currently to him by the prospective adopter. Reference was made to the case of Lothian Regional Council -v- A, 1992 S.L.T 858 at page 865C.

6.                 JM has maintained that it is reasonable that she withholds her consent to C being freed for adoption. She had maintained relations with C since his birth and has always expressed a clear wish that she would wish C to be rehabilitated back into her full-time care. She has ended her former relationship with AL, C's father, as a direct consequence of the various risks that were identified as pertaining specifically to AL and which would prevent him in the view of the professionals being involved in the potential permanent full-time care of C if he were to be rehabilitated back to the birth mother. Since the initial involvement of the Social Work Service, JM has sought professional assistance from a counsellor, has cooperated fully with the Social Work Service and has undertaken parenting classes and other various skills that would assist in the care of a child. JM has cooperated fully and would intend to continue doing so and seek such appropriate support as is required either from her family, the Social Work Service or appropriate professionals if C were to be placed in her permanent full-time care.

7.                 Regard should be had to the evidence given by the member of the Social Work Service involved with C that they have not accepted the positive parenting skills or indeed the improvement of JM as reported and commented upon by Mr Fry, Mrs Sheila Archibald and Professor Furnell. As a consequence of the Social Work Service not accepting these positive aspects, they have not supported at any stage the potential rehabilitation of C to the permanent full time care of JM, in particular following the separation of his parents.

8.                 There was an issue about the level of risk to C if he were to be removed from the current care of AR, the prospective adopter, and the foster family. Mr Fry stated that he had tailored the potential behaviour that might arise either some or all arising immediately or in the future as outlined in para. 72 of his said report dated 18^th August 2009 in the Petitioners' production 5/3.10.2. Professor Furnell in his said report in the First Respondent's Production 6/4.1 does not agree that this assessment of the level of risk as suggested by Mr Barry Fry is correct. Professor Furnell's opinion is that it is important that consideration should be given that C has had appropriate care and an appropriate attachment to his foster family during the first three years of his life. It is also important that there is no evidence to suggest that during the first seven years of JM's life that she had other than an appropriate upbringing and an appropriate attachment primarily to her late adoptive mother and prior to the death of JM's late adoptive mother and that she did receive appropriate parental care. Professor Furnell commented that he was surprised that no reference was made to this by Mr Fry and Mrs Archibald in their assessments, albeit that Mr Fry did accept when giving evidence that there was nothing which he could give by way of contrary evidence to suggest that there was any detrimental care or attachment for JM during the first seven years of her life prior to the death of her late adoptive mother.

9.                 It was a matter of agreement by Professor Furnell and Mr Fry that the death of JM's late adoptive mother was and is a significant event in her life and would have had an impact upon her. Professor Furnell however commented that in his view JM was addressing that and by talking about it, in his professional view, that was a positive sign that JM was addressing the issues arising from that.

10.            Evidence was given by Mr Fry that there was a good relationship between JM and C, despite the limited contact which they have had, which is not the fault of JM. That was the contact which she was permitted owing to the existing conditions attaching to the Supervision Requirement for the said child. When contact was arranged to take place at JM's home in relation to the Parenting Assessment undertaken by Mr Fry and Mrs Sheila Archibald, C settled into the new environment without difficulty. C centred on JM and was focussed on her throughout the period of contact. This took place, despite the initial reservations expressed that C would have difficulty and may not be comfortable in this new environment due to his previous contact only ever taking place primarily at the Social Work Services' Quarry Family Centre.

11.            Professor Furnell did not agree with the high level of risk identified by Mr Fry.

12.            Professor Furnell opined that if there was to be rehabilitation of C to the permanent full-time care of JM, the process would likely take a number of months for a child of C's age. The process would require to be carefully and well-managed for a period which would require to be a number of months. There would require to be supports in place for the process if it were to be successful.

13.            Mr Fry gave opinion as to what he believed that C would want, which would be to remain permanently with his current foster and prospective adoptive family and if possible to continue seeing JM, his natural mother. Professor Furnell questioned how Mr Fry would know this, despite Mr Fry having had more involvement with C during various assessments and contact observations than Professor Furnell. Professor Furnell also questioned how Mr Fry would know how to tailor the various potential risks that may emanate from the breaking of the primary attachment with AR, the prospective adopter, as opposed to indicating some of the general potential indices of behaviour that might arise in such situations. Professor Furnell was quite adamant that he did not accept the level of probable behavioural difficulties and emotional distress on which Mr Fry opined. He did accept that there was a risk, but it was certainly lower than that opined on by Mr Fry.

14.            Reference was made to P -v- Lothian Regional Council, 1989 S.L.T 739, and Lothian Regional Council -v- A, 1992 S.L.T 858.

15.            It was submitted that if the court were to apply an objective test to the evidence, it would not determine that JM was unreasonably withholding her agreement and in all the circumstances, no reasonable parent would give their agreement C child being freed for adoption.

16.            JM's position is that she withholds her agreement as she does not consider it to be of benefit to C to be freed for adoption, but should instead be rehabilitated into her permanent full-time care. The opinions expressed by the adoption agency and the reporting officer and Curator Ad Litem are based upon the opinion expressed by the Social Work Service that JM did not have the appropriate parenting skills despite the subsequent opinion being expressed by both Mr Fry and Professor Furnell that she has such skills and not just sufficient but to a high level. In considering the welfare stage identified by the case law, the court has to determine whether or not an order dispensing with the consent of JM should be made. The court requires to exercise its discretion and to have regard to the requirements of s.6 of the 1978 Act in doing so. It was submitted that JM has the appropriate parenting skills and abilities to care for a child including C. The only issue in considering welfare is the potential detriment to the child in the breaking of the primary attachment which he has to AR, the prospective adopter, and the prospects of JM managing the likely behavioural responses of C in the breaking of the primary attachment and the forming of the necessary attachment between C and JM. Both Mr Fry and Professor Furnell state that JM has the potential to form such an attachment, but that the unknown quantity is how C will react both to the breaking of the primary attachment and the attempts to form a new attachment between him and JM. There were detrimental and emotional consequences identified by Professor Furnell if C were to be freed for adoption and have no subsequent relationship with his birth family. It was submitted that JM can safeguard and promote the welfare of C if he were to be placed in her permanent full-time care.

17.            It was submitted that the Petition should be dismissed and that C should not be freed for adoption.

18.            In the event that the court was minded to grant the Petition freeing C for adoption, the First Respondent reserved her position regarding the issue of post adoption contact, either direct or indirect.

19.            It was invited to should certify Mr Barry Fry, Psychologist and Professor James R. G. Furnell, Consultant Psychologist, as skilled witnesses.

Submissions for the Second Respondent.

It was accepted that the second respondent was a vulnerable person with a difficult background. It was accepted that he is withholding his consent unreasonably. Reference was made to Mr Fry report dated 12 November 2007 (the First Respondent's 3^rd Inventory, item 2, paras. 81-84.)

In relation to the reports from Mr Fry and Professor Furnell, I was invited to prefer that of Professor Furnell, in that Mr Fry's reports contain generalisations which are not supported. He mentioned 9 issues which he said were specific to C, whereas Professor Furnell indicated that it was impossible to say that C would have any of the reactions indicated by Mr Fry. The appropriate test is that laid down in Lothian Regional Council -v- A 1992 SLT 858 at 865C, D. It was submitted that this is not a "beauty contest" comparing what C has with what he might have. Rather the issue was to determine whether JM is a suitable person to have long term care of C. I was invited to refuse to grant the Petition.

DECISION.

I need say very little about the second Respondent whose agent, quite properly, accepted that his client was withholding his consent unreasonably. AL has significant problems of his own which make him unlikely to be able to look after C's needs. Having had a preliminary proof, I concluded that he and JM had separated. The issues are now therefore (a) whether she is withholding her consent unreasonably, and (b) whether, in all the circumstances, C's future welfare would point to an order being made freeing him for adoption.

(a)  Withholding of consent.

I have to look at this matter objectively. That is clear from decisions such as Lothian Regional Council -v- A 1992 SLT 858, D -v- F (IH) 1994 SCLR 417, C -v- S 1996 SLT 1387 per Lord President Hope at 1393 G, H; B -v- C 1996 SLT 1370 Lord President Hope delivering the opinion of the court at 1373; G -v- M 1999 SC 439 at per Lord President Cullen at 448G. It is clear therefore that the issue is not whether JM's decision, as a parent, is reasonable, but whether a reasonable parent would, in all the circumstances, withhold consent. That approach accords with common sense in that it must be unusual for a parent not to resist any attempt on the part of a local authority to separate him or her from a child, of which he or she is the natural parent. Applying that objective test, I have come to the conclusion that JM is withholding her consent unreasonably. While there is no doubt that her parenting skills have improved considerably. It is not in dispute that JM dealt well with C during the contact observed by Mr Fry and Mrs Archibald, but although that is so and C calls her "Mummy," he has, in the words of Mr Fry, a relationship with her which can be equated to that of a familiar nursery nurse. JM is also prepared to accept assistance from the Petitioners' Social Work Department and her family and accepts that these supports are not only important, but essential. However, as the court in L -v- Central Regional Council 1990 SLT 818, made clear, an improvement in the mother's lifestyle, or in this case, approach to parenting, is only one factor. By contrast, C has formed an attachment to AR, her partner, and their child which is his primary attachment, and one which has developed since he was placed with AR following upon a decision of Aberdeen City Council Adoption and Fostering Panel on 21 November 2007. I use the term "attachment" in the technical sense referred to by Professor Furnell which in turn refers to the literature, of John Bowlby and Professor Sir Michael Rutter (the First Respondent's production number 6/4.1, page 19).

C is in a stable and settled family relationship and is thriving. Were C to be returned to his natural mother, it is accepted that she would require support for a period of months (a) from her family and (b) from the Petitioners' Social Work Department. There is no evidence that the family members that she identified would be both willing and able to provide that support, and I cannot speculate on that. I observe that in her affidavit dated 19 August 2010, Susanne Somerville, a senior social worker with the Petitioners, says that this family support, beyond that of JM's father, has not been mentioned in any LAC review.

Both Mr Fry and Professor Furnell agree that that support is essential, i.e. support from persons other than JM's father. JM would have support from him, but that itself is not without its problems in that, at present, he is not allowed to have contact with C. In addition, there have been problems between him and the Petitioners' Social Work Department. Furthermore, because JM is currently in arrears with her rent, she has nowhere to stay, except with her father. Without apportioning blame, it is possible that there may be some tension between the Department and her father which could have an adverse effect on C's future and JM's ability to cope with his return to her. In addition, it is not in dispute that the death of JM's adoptive mother had a profound effect on her, something with which she has not, as yet, fully come to terms. She has not yet availed herself of all of the necessary counselling in relation to that. Professor's Furnell's opinion was that she was addressing that issue in that she had spoken to him about it. It has to be said that she had also spoken to Mr Fry about it, but what she requires, and both Mr Fry and Professor Furnell agree that she requires professional help, which so far, she has not sought.

Furthermore, account has to be taken of the problems which may arise from any attempt to sever the existing attachment to AR and her family, and create a new relationship with JM, as the mother, and not someone who C does not, at present, see as his mother, notwithstanding what he calls her when they meet. Both Mr Fry and Professor Furnell are agreed on the following, viz:- that (i) there will be no guarantee of success; (ii) it could leave C in a disastrous limbo in emotional terms, if unsuccessful; (iii) the process of rehabilitation will not be painless for C; (iv) there is likely to be adverse reaction, indeed inevitably by C. These very important factors also point to the conclusion that a reasonable parent, looking objectively at the matter objectively, would not withhold consent. While Professor Furnell doubted whether the 9 factors mentioned above and contained in Mr Fry's report of 18 August 2009 (Petitioner's Production No. 10.2 para. 72) could be "C-specific," he accepted that some or all could manifest themselves in any child removed from the person with whom it has the primary attachment to another, to a greater or lesser extent and for a shorter or longer period. Taking all of these factors into account, and looking at the issue of consent objectively, I have come to the conclusion that a reasonable parent would not withhold consent to the freeing of C for adoption. I am therefore satisfied that s. 16(2)(b) of the 1978 Act applies.

(b)  the welfare test.

Having concluded that s.16(2)(b) of the 1978 Act does apply, I must now consider whether an order freeing C for adoption. I have considered all of the evidence, the reports of the Children's Hearing, of the curator-ad-litem, of the reporting officer and those of Mr Fry, the joint report with Mrs Archibald, and that of Professor Furnell. Apart from Professor Furnell, all are of the opinion, that adoption would be in the long-term interests of C. On that, Professor Furnell does not give an opinion. In the submissions for both respondents, much store was put on the fact that in his evidence, Mr Fry did compare what C has at present with what he might have, and while the authorities indicate that that is not the test (Lothian Regional Council -v- A 1992 SLT 858, per Lord President Hope quoting from A and B v. C. 1971 SLT 258, the opinion of Lord President Emslie) I do not accept the inference that his conclusion and that of he and Mrs Archibald in their joint report is thereby invalidated. In his report dated 18 August 2009, (para. 72) Mr Fry lists 9 factors which he describes as "indices of disturbance" were C to be returned to his natural mother. In evidence, he said that they were "C-specific." Professor Furnell doubted whether any psychologist could say that. Mr Fry has, of course, had more contact with C, his parents, with JM, and the prospective adopters and I accept that would put him in a very good position to comment on C's likely reaction to having his primary attachment brought to an end, even temporarily, and how that reaction would be identified. Professor Furnell however, did accept, as I have already noted in the context of withholding consent, that some or all of these 9 factors could in varying degrees, and for varying periods, manifest themselves in a child in the position of C who was taken from his foster parents and returned to his natural parent(s). What Professor Furnell does say in his report is, "[T]here do appear to be the likely measures in place, and hence the prospects for such rehabilitation are, in my view, more positive when considered comprehensively, than the position appearing to be promulgated by Mr Fry." (page 21.) That said, he agreed with Mr. Fry about the following which I quoted in dealing with withholding of consent, viz:- that (i) there will be no guarantee of success; (ii) it could leave C in a disastrous limbo in emotional terms, if unsuccessful; (iii) the process of rehabilitation will not be painless for C; (iv) there is likely to be adverse reaction, indeed inevitably by C.

While I have had regard to the reports from the various agencies of the Petitioners which comment adversely on JM's parenting skills, I have taken into account the significant change in her approach to parenting over the period during which C has been with his foster parents, and I have no doubt that more up-to-date reports would take that into account. There is some recognition of that in the latest LAC Review dated 13 May 2010 (Petitioners' production 12.2) That said, it was accepted that, in determining the issue of freeing, it would be appropriate to give weight to the various reports of Mr Fry, his joint report with Mrs Archibald, and Professor Furnell's report.

I prefer the evidence of Mr Fry in so far as it differs from that of Professor Furnell, and the essential difference is that Professor Furnell is more optimistic about a possible rehabilitation. Mr Fry has had a greater and longer involvement with the family, i.e. JM, AL, and C, and latterly with JM and C. That is equally true of AR, the prospective mother and her family. For that reason, I am of the opinion that he is better placed to assess JM's parenting skills, her problems in relation to the death of her adoptive mother and how they might affect how she deals with C and responds to any adverse reaction from him as a result of no longer being in AR's care, C's current situation and his attachments, and the possible effect on him of a return to his natural mother. Mr Fry was not dismissive of JM; rather the opposite is true in that he identified her as having made considerable progress in her mothering skills. As the cases make clear, that, of itself, is not enough, nor, in my view, is her willingness to accept the assistance which both Mr Fry and Professor Furnell say is essential. There was some criticism of the fact that Mr Fry did not ask JM about the first seven years of her life: Professor Furnell regarded that as important. It is, however, agreed that these years were ones in which JM had a normal, stable family life.

The test is set out in s.6(1) of the Act which requires a court to have regard to all the circumstances, but, "(a) shall regard the need to safeguard and promote the welfare of the chid concerned throughout his life as the paramount consideration, and (b) shall have regard so far as practicable (i) to his to views...; and (ii) to his religious persuasion, racial origin and cultural and linguistic background." In Central Regional Council -v- M 1991 SCLR 300 at 303A, it was said that the court has to express a view on what is needed to safeguard and promote C's interests for the remainder of his childhood, and in C -v- S 1996 SLT 1387, Lord President Hope said that the welfare of the child is the primary consideration.

In my view, what C requires for the remainder of his childhood is a stable family relationship, which he currently has. By contrast, his relationship with JM is that of a familiar, and no doubt trusted, adult. A decision should not, in my view, expose C to the risk that a re-instatement of a relationship with JM may not work, and if it does not work, that he would be left, in the words of Professor Furnell, in a "disastrous limbo in emotional terms," something with which Mr Fry agrees. A decision should not, if possible, expose C to any emotional pain, and the possibility of an adverse reaction, e.g. distrust of adults whom he might think had let him down, both of these matters identified by Professor Furnell and accepted by Mr Fry. It should not expose him to the possibility that JM, even if she does seek professional help to address the problems arising from her adoptive mother's death, may not be able to deal with any distress shown by C, as a result of his primary attachment coming to an end, and his inability to understand why that has happened. These risks exist with the possible return of C to JM; they do not if he remains with AR.

A decision to return C involves the following imponderables (i) whether JM's family will be able and willing to assist; and (ii) whether she will have confidence in new social workers, and that their involvement will not be impeded by her father. In my opinion, should there not be the necessary family support, or if a relationship with the social workers breaks down, for whatever reason, (both of which are essential) that points to a possible adverse effect on C' welfare.

Applying the tests mentioned above, and looking at all of the reports, and the evidence, there is a real risk that if C were to be returned to JM, there would be some or all of the unfortunate consequences noted above. I do not consider that exposing C to such a risk would promote his welfare; rather the opposite would be true. C is not of an age where he can express his own views, but it is not in dispute that the prospective adopters have provided him with a loving and stable family, and that he has formed an attachment to them, which is his primary attachment. It is not in dispute that they are an appropriate match for C in terms of his religious persuasion, racial origin, cultural and linguistic background. Were C not to be returned to JM and not freed for adoption by the prospective adopters, the alternative is fostering, possibly with other prospective adopters. That was not canvassed in submission, but, I deal with it for the sake of completeness. My conclusion is that there is no better alternative to a freeing order, and it is better that an order for his freeing be made than that no order is made.

The issue of post-adoption contact was referred to in passing, but it was not the subject of any submissions, except those of the first Respondent who, understandably, reserves her position on that issue. Hopefully, some agreement may be reached on that, once all concerned have had an opportunity to consider what is stated above.