SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT BANFF

AD1/10

JUDGEMENT   of   SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC   in the cause   ABERDEENSHIRE COUNCIL   Petitioners and Appellants   against   (1) TW and (2) JW   Respondents

 

 

 

Act: Mr Alan Inglis, advocate, instructed by Aberdeenshire Council

Alt: (1) Mrs Hilary Macandrew, solicitor, Grant Smith Law Practice, Turriff

(2) Mr Alan Duffill, solicitor, Stewart & Watson, Banff

 

 

 

Banff: 2 June 2011

The sheriff principal, having resumed consideration of the cause,

(1) allows the appeal and recalls the interlocutor of the sheriff dated 6 December, 2010;

(2) in terms of section 80(1) of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") makes a permanence order in respect of the child CW whose date of birth is 5 December, 2008 and whose full name and current address are stated in the appendix to this interlocutor;

(3) in relation to CW vests in the petitioners (i) the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (ii) and (d) of the Children (Scotland) Act 1995 ("the 1995 Act") until the date on which she reaches the age of 18 in the case of the responsibility mentioned in section 1(1)(b)(ii) and until the date on which she reaches the age of 16 in the case of the responsibilities mentioned in section 1(1)(a), (b)(i) and (d), and (ii) the parental rights mentioned in section 2(1)(a), (b) and (d) of the 1995 Act until the date on which the child reaches the age of 16;

(4) in relation to CW vests in the prospective adoptive parents whose names and current address are stated in the appendix hereto (i) the parental responsibilities mentioned in section 1(1)(a) and (c) of the 1995 Act until the date on which she reaches the age of 16, and (ii) until the date on which she reaches the age of 16 the parental rights mentioned in section 2(1)(b) and (c) of the 1995 Act, including the right (a) to consent to medical, dental and ophthalmic treatment, both routine and emergency, in respect of the child, (b) to apply for a passport for the child and to take her on holidays abroad and to apply for a European Health Card for the child, (c) to consent to the child joining social groups and to make nursery and school provision for the child as appropriate, and (d) to manage letter box contact between the child and her natural parents, namely the respondents TW and JW whose names are stated in the appendix hereto, and direct and letter box contact between the child and her siblings who have previously been adopted;

(5) extinguishes the parental responsibilities in relation to CW which, immediately before the making of this order, vested in TW or JW in pursuance of section 1(1) of the 1995 Act;

(6) extinguishes the parental rights in relation to CW which, immediately before the making of this order, vested in TW or JW in pursuance of section 2(1)(b), (c) and (d) of the 1995 Act;

(7) grants authority for the child CW to be adopted;

(8) dispenses with the consent of TW and JW to the making of an adoption order in relation to CW;

(9) orders that direct contact between CW on the one hand and TW and JW on the other should cease on and from the date hereof;

(10) in terms of section 89 of the 2007 Act orders that on and from the date hereof the supervision requirement in respect of the child CW should cease to have effect; and

(11) finds no expenses due to or by any of the parties in respect of the appeal.

 

 

 

 

Note

 

[1] In this case the petitioners and appellants Aberdeenshire Council made an application to the court in terms of section 80(1) of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") for a permanence order in respect of the child CW. It was proposed that the order should consist of the mandatory provision, various ancillary provisions and provision granting authority for the child to be adopted - see section 80(2). The application was opposed by the respondents who are CW's natural parents, TW and JW. In due course it was called before the sheriff for proof and he heard evidence over eleven days between 30 September and 18 November, 2010. He heard submissions on 6 December, 2010 and thereafter, following a brief adjournment, he delivered his judgment orally, as he was entitled to do in terms of rule 38(1)(a) of the Sheriff Court Adoption Rules 2009. He refused the application for a permanence order and stated his reasons for doing so as required by rule 38(2)(a). He helpfully provided to parties a transcript of what he had said.

 

[2] Thereafter the petitioners lodged a note of appeal in which they stated various grounds of appeal and requested the sheriff to write a note. This he duly did as required by rule 38(2)(b). The petitioners subsequently lodged amended grounds of appeal. There were twelve such grounds, and at the hearing of the appeal itself counsel for the petitioners presented submissions in support of all but one of these grounds. For present purposes I think that it is unnecessary to set these out in full. In short, they all centred around the basic proposition that the sheriff had erred in law, and had also been plainly wrong, in refusing the application for a permanence order.

 

[3] In section 1 of his note the sheriff began by reproducing the transcript of his oral judgment. He then set out his findings in fact (section 2) and in law (section 3), rehearsed at some length the evidence of the various witnesses who had given evidence during the proof (section 4), summarised the submissions of the parties which had been lodged in written form in advance of the final day of the hearing (section 5), and finally added some observations of his own in amplification of what he had said in his oral judgment (section 6). A complete copy of his note may be seen at http://www.scotcourts.gov.uk/opinions/AD_10.html, and in the circumstances I think that it is unnecessary to explain in detail here what the sheriff had to say in support of his decision to refuse the application. But it may be helpful to give a brief summary of CW's family background as disclosed by the sheriff's note.

 

[4] CW was born on 5 December, 2008. She is the third child of TW and JW, TW being her mother and JW her father. TW was adopted by Mr and Mrs R when she was 41/2 years of age. JW was also an adopted child. Their first child, a boy SW, was born on 19 August, 2004. The sheriff records that TW had been living a chaotic lifestyle and had been estranged from her adoptive parents (Mr and Mrs R) at the time she had fallen pregnant and subsequently given birth to SW - see finding in fact 2.23. She had evidently had difficulty in caring for SW as the sheriff noted at paragraph 1.6 where he stated:

 

On the evidence, and by her own admission, TW was unable to properly care for her first child due partly to her youth and partly, and mostly, to her own emotional instability and chaotic lifestyle. She did not have the support of her own parents in regard to the care of that child and so the outcome in that case was hardly surprising.

 

This outcome began to unfold when SW was placed in the care of foster parents with TW's agreement on 24 February, 2005. On 13 June, 2005 SW was made subject to a supervision requirement by the children's hearing in terms of section 70 of the Children (Scotland) Act 1995 ("the 1995 Act"). He was placed with prospective adoptive parents in May 2006 and on 1 September, 2006 the court made an order declaring him free for adoption. This order was made with the consent of TW. SW has since been adopted.

 

[5] The second child, a girl ZW, was born on 4 January, 2006. Before her birth, at a Child Protection Case Conference held on 31 October, 2005, it had evidently been agreed that her name should be placed at birth on the Child Protection Register under the category of "At Risk of Emotional and Physical Neglect". After her birth a married couple (Mr and Mrs Bass) from a company which provided social work support stayed with the family for some six weeks, initially on a full-time basis and thereafter for reducing periods of time. When they left further support was provided as narrated in the sheriff's finding in fact 2.31 as follows:

 

At a Core Group Meeting on 2^nd February 2006, JW agreed to accept responsibility for being ZW's main carer. JW was able to demonstrate that he could meet ZW's needs when Mr and Mrs Bass were there. When Mr and Mrs Bass left in February, the Social Work Service provided support. In view of the fact that progress was being made, this support was reduced to 29 hours per week from 21 February 2006 and then 15 hours per week from 15^th March 2006 reducing to nil.

 

[6] On 10 June, 2006 ZW was admitted to hospital with a spiral fracture to her right arm. At paragraph 1.7 of his note the sheriff commented that it was "fair to say that this injury was a major factor in shaping the view of the petitioners' social work department as to the ability of the respondents to care for the child who is the subject of this petition". He went on in the same paragraph to explain what he made of this particular episode in the following terms (Dr Myerscough was the consultant paediatrician who saw ZW on her admission to hospital):

 

The injury to the child was described by Dr Myerscough as a non accidental injury in the sense that it could not have been caused without the intervention of a person other than the child herself. There is no doubt that the injury was caused by the way in which she was handled by TW. No doubt there was a lack of proper care and attention on the part of TW in that particular instance and in that respect TW was responsible for the child's injury; but on the evidence it is not possible to say that there was any intention on the part of TW to cause that injury to her child. And so, I have no hesitation in saying that the injury that befell the child on that occasion, though non accidental, was non intentional.

 

[7] On 14 June, 2006 a children's hearing issued a warrant to keep ZW in a place of safety and it appears that she was immediately placed in the care of foster parents. She was subsequently placed with prospective adoptive parents. An application by the local authority for an order declaring her free for adoption was initially contested by TW and JW, but they evidently changed their minds and on 19 August, 2008 consented to the order which was then granted. Subsequently an adoption order in respect of ZW was made by the court on 9 January, 2009.

 

[8] It will be observed that the injury to ZW occurred when she was only five months or so old, and not long after the social work support referred to by the sheriff in his finding in fact 2.31 had ceased. It will not surprise the reader therefore to see in paragraph 4.1.5 of his note that the sheriff recorded Dr Myerscough's opinion " that in light of Z's injury it would not have been safe to allow another child to be cared for by the respondents without an assessment being carried out to determine whether or not there had been any improvement in their ability to care for a child". Understandably therefore when TW became pregnant with CW members of the petitioners' social work department were concerned about her and JW's ability to care for the child. The upshot was that a child protection order in respect of CW was sought and granted on the day of her birth, namely 5 December, 2008. An appeal against this order was refused by the sheriff after receiving an assurance from the petitioners' agent that the child would not be removed from TW's care in hospital pending a children's hearing taking place on 17 December, 2008. So mother and child remained together in hospital for a period of twelve days. The children's hearing then granted a warrant to keep CW in a place of safety and she was accommodated with foster parents. She remained in foster care until 12 April, 2010 when she was transferred to the care of prospective adoptive parents with whom she has remained to this day. TW and JW have been allowed supervised contact with her for reducing periods of time, and it appears that they now each see her only once a month as recorded in the sheriff's finding in fact 2.39. This is one of several findings in fact which narrate CW's development in her current placement with the prospective adoptive parents. These read as follows:

 

2.37 As at the date of submissions in this case on 6 December 2010 CW was two years and one day old. She is a placid and undemanding toddler. She is thriving in her foster placement and sleeps and feeds well, and appears to be meeting her developmental milestones. She is developing her communication skills as in the variety of squeaks, grunts and facial expressions that she uses when expressing her needs and feelings. She is now also saying a few words. She is very interactive, both initiating communication and responding to cues from others. She is trying to walk and will walk around the furniture. She is up to date with all of her inoculations.

2.38 CW's current development is meeting and exceeding her developmental milestones and her social skills are particularly noticeable as she interacts very well with anyone who pays her attention and can clearly signal her care needs by tone and action.

2.39 CW has had supervised contact with the Respondents since she was born. Initially contact was for 15 hours per week but in May 2009 the contact was reduced to 1 hour per month to reflect the permanence plan. The Respondents are meantime separated and to reflect this each currently has contact with CW once per month for 45 minutes.

2.40 CW's name has been changed by the Foster Carers and subsequently by the prospective adoptive parents. Her prospective adoptive parents call her by a derivative of her real name. Her surname has been changed to that of the prospective adoptive parents on her medical records.

2.41 CW has exposure to social opportunities appropriate to her age and stage in the form of a baby group which her carers attend with her. Within her foster placement there is a range of age-appropriate toys and stimulation. She enjoys swimming at the public swimming pool mother and baby sessions.

2.42 CW's hearing was assessed prior to her discharge from Peterhead Maternity Unit and again at the Audiology Department at the Royal Aberdeen Children's Hospital (RACH) on 10th November 2009. This was in light of JW's hearing impairment. No concerns were raised. CW had her full Looked After Children's Medical on Tuesday 13 January 2009 by a GP at Portsoy Medical Practice. There are no health concerns. CW is up-to-date with her inoculations and is meeting all of her developmental milestones. She is above average with her weight and height for her stage of development.

2.53 The Respondents baptised CW on 16^th December 2009. CW's foster carer was present at the ceremony. The Respondents would like CW to have a Christian upbringing and would like her to attend the Church of Scotland.

2.59 CW lives with her prospective adopters within the North East of Scotland where her cultural and linguistic background will be upheld.

2.60 CW's prospective adopters will promote Christian values for CW and should she want to follow the Christian faith as she grows older they will encourage this.

 

[9] At the hearing of the appeal I allowed the petitioners to lodge two affidavits by Karen Anderson and another social worker respectively. These were essentially designed to bring matters up to date since the conclusion of the proof. For present purposes I do not think that they are of any particular significance apart from one paragraph in the affidavit of Karen Anderson (which is dated 11 May, 2011). Mrs Anderson gave evidence before the sheriff, and there is nothing in his account of her evidence (at paragraphs 4.3.1 to 4.3.16 of his note) to suggest that this should not be accepted as credible and reliable. At paragraph 4 of her affidavit she describes CW's current situation as follows:

 

(CW) has continued to live with her prospective adopters and her secure attachment to them is evident in her positive developmental progress where she is meeting all of her milestones. She also presents as a very secure and happy child who is fully integrated into her extended prospective adoptive family and speaks of them frequently when the writer has visited in terms of spending time with them and having fun. Her prospective adopters have also fully claimed (CW) as their daughter which is crucial to providing her with the secure attachment experience she needs for positive physical, emotional and social development.

 

[10] I did not understand there to be any dispute that I should only be entitled to disturb the decision of the sheriff to refuse the application if I were satisfied that he had misdirected himself in law or had otherwise clearly gone wrong - see A v B and C 1971 SC (HL) 129, per Lord Reid at page 141. As will become apparent from what I am about to say I consider that the sheriff both misdirected himself in law and went clearly wrong so that I am indeed entitled to substitute my own decision for his, and this is what I have done.

 

[11] Counsel for the petitioners submitted that the sheriff had failed to address the question posed by section 84(5)(c) of the 2007 Act, namely whether he was satisfied that -

 

(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

(ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

 

Counsel submitted that TW and JW were persons who had the right mentioned in section 2(1)(a) of the 1995 Act to have CW living with them or otherwise to regulate her residence and that the sheriff ought to have found that CW's residence with them was, or was likely to be, seriously detrimental to her welfare.

 

[12] I did not understand the solicitors for TW and JW to dispute that they were persons who had the right mentioned in section 2(1)(a) of the 1995 Act. This in my view must be correct. It is true that they cannot at present exercise that right on account of the supervision requirement imposed by the children's hearing, but it does not follow from this that the right has been extinguished altogether. It was submitted on behalf of TW and JW that the sheriff had been entitled to conclude that CW's residence with them was not, or was not likely to be, seriously detrimental to her welfare.

 

[13] It is true, as counsel pointed out, that the sheriff did not in terms address the question whether he was satisfied that CW's residence with TW and JW was, or was likely to be, seriously detrimental to her welfare. On the other hand, at paragraph 1.12 of his note he stated: "It is certainly my view that the child could not simply be returned to the sole care of the petitioners, or either of them, forthwith" (in referring here to the petitioners he evidently meant to say the respondents). And at paragraph 1.19 he stated: "I do not envisage that the child could be returned to the care of the respondents or either of them immediately, if at all". He repeated these two passages at paragraph 6.13 of his note which he introduced with the sentence: "It is not for me to say in the context of these proceedings whether or not the respondents will ever be able to resume the direct care of their child; but if that is to happen it will not be an immediate process". If it be asked upon what basis the sheriff felt able to make these statements, the obvious explanation is that he was satisfied that CW's residence with TW and JW was, or was likely to be, seriously detrimental to her welfare, and in the absence anywhere in his note of an alternative explanation I consider that this must be the correct explanation and that the sheriff ought accordingly to have made a finding in fact to this effect.

 

[14] It was also submitted for the petitioners, again I think correctly, that the sheriff had erred in failing to find that subparagraph (c) of section 83(3) of the 2007 Act applied in this case. This subsection provides:

 

(3) This subsection applies if the parent or guardian-

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to-

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

 

The sheriff considered the question whether subparagraph (c) of this subsection applied at various points in his note. Thus at paragraph 1.13 he stated:

 

There was evidence, which I can readily accept, that as children get older their care needs change. This is not a case where there is evidence that the Respondents have sacrificed all capacity to care for a child of any age by, for example, dependence on drink or drugs or by a propensity for violence towards the child, or violence towards each other in the presence of the child and to her detriment - although there was evidence that there has been violence between the Respondents. It may well be that the Respondents could adequately care for an older child.

 

The sheriff returned to this question at paragraph 1.15 where he stated:

 

........... If I had been persuaded to grant a Permanence Order I would not have granted authority for adoption because I would have found myself unable to dispense with the consent of the Respondents. To be able to dispense with their consent I would have had to be satisfied both that the Respondents were unable to satisfactorily discharge their parental responsibilities and rights and that they were likely to continue to be unable to do so. I have already said that as children get older their care needs change; and that this is not a case where there is evidence that the Respondents have sacrificed all capacity to care for a child of any age by, for example, dependence on drink or drugs or by a propensity for violence. Even if I am persuaded, on a balance of probabilities, that the Respondents are not capable of satisfactorily discharging their responsibility to care for the child as a baby I am not persuaded that it has been demonstrated that they will continue to be unable to discharge that responsibility to the child as she becomes a toddler, then a school child, then a teenager and so on.

 

The sheriff referred again to the point at paragraph 6.10 where he said:

 

........... There was little evidence about the Respondents' likely ability, or lack of it, to continue to satisfactorily discharge their parental responsibilities and rights in respect of a child older than a baby. The evidence was concentrated on the Respondents' lack of ability to care for the child and their earlier two children as babies. That evidence, on its own, seems to me to be an unsatisfactory basis upon which to conclude that the Respondents are likely to continue to be unable to satisfactorily discharge their parental responsibilities and rights in respect of the child throughout childhood. As I indicated in my oral judgement, the position might have been different had there been evidence of dependence on drink or drugs or a propensity for violence from which it could be inferred that the Respondents had surrendered all capacity to care for a child of any age .........

 

In my opinion it is clear in these passages that the sheriff has misunderstood the meaning and significance of the expression "is likely to continue" in subparagraph (c). The starting point here is the date of the court's decision and not some indeterminate date in the future and the question which the sheriff had to consider was whether TW and JW were likely to continue to be unable satisfactorily to discharge the responsibilities and exercise the rights referred to in subparagraph (b) as from the date of his decision. Given what he had said in paragraphs 1.12, 1.19 and 6.13 of his note, I do not see how he could have reached any other conclusion than that, beginning with the date of his decision, TW and JW were likely to continue to be unable satisfactorily to discharge the responsibilities and exercise the rights in question, and it was nothing to the point that they might, for example, have been able to care satisfactorily for CW when she reached the age of 4, 8 or 12 so long as they were unable to do so in the meantime.

 

[15] What I have said so far is I think sufficient to entitle me to treat the question whether or not this application should be granted as being at large on appeal. But I am bound to say that I am in any event persuaded that the sheriff's decision to refuse the application was plainly wrong for two reasons in particular. In saying this I take it to be uncontroversial that three essential requirements of a healthy childhood are permanence, continuity and stability. This was what was proposed by counsel for the petitioners under reference to paragraphs 5, 6 and 7 of the Executive Summary of the Adoption Policy Review Group's Report - Phase I, and I did not understand the solicitors for TW and JW to dispute this. Counsel might also have referred to the final sentences in the following paragraph 8 which read: "Delays carry very real risks for children. They suffer more disruption and change and more emotional damage. So permanence must be implemented quickly". Once again, I scarcely think that these observations could be considered to be controversial.

 

[16] It is clear from his note that the sheriff felt unable to grant the application chiefly because he considered that a full kinship care assessment should have been completed by the petitioners and that, pending the completion of such an assessment, the possibility of CW being looked after by Mr and Mrs R, far from being ruled out at this stage, was an option that ought to be fully explored - see in particular paragraphs 1.10, 1.11, 1.17, 6.6, 6.7, 6.8 and 6.11. Hence he was of the opinion that it was better for the child that she should for the time being remain subject to the current supervision requirement and that her future should be determined by the children's hearing within the limits of their authority - see paragraphs 1.14 and 1.18.

 

[17] In my opinion there are two major flaws in this approach. In the first place, far from leading to a speedy resolution of the measures to be taken to secure, so far as possible, permanence, continuity and stability for CW, the sheriff's decision to refuse the application means that this resolution has been deferred for an indeterminate length of time, and certainly for as long as CW remains subject to a supervision requirement imposed by the children's hearing. Such a requirement, it will be recalled, has to be reviewed at least once a year in terms of section 73(2) of the 1995 Act and hence cannot hope to offer the assurance of permanence, stability and continuity that a child such as CW needs. Given his opinion that a full kinship care assessment should have been carried out it respectfully seems to me that, rather than refuse the application outright, what the sheriff could, and perhaps should, have done before reaching a final decision in the matter was to order the completion of such an assessment without further ado either by the petitioners or, since it appears from paragraph 6.8 of his note that he had reservations about this being done by their social work department, by the curator ad litem. This he had power to do in terms of rule 4(1) of the Sheriff Court Adoption Rules 2009 which provides: "The sheriff may make such order as he thinks fit for the expeditious progress of an application under the 2007 Act, including an application for a Convention adoption order, in so far as it is not inconsistent with the provisions of these Rules". But the fact is that the sheriff did not order such an assessment, and the effect of his decision to refuse the application was that there could be no assurance that one would ever be completed. Certainly I find it hard to imagine that the petitioners would do so willingly in light of the conclusion of the admittedly unfinished assessment which was prepared by Mrs MacAuley in October 2009, namely that in her opinion it was not in the interests of CW that Mr and Mrs R should be considered further for the kinship care of her - see in particular paragraphs 4.4.4 and 4.4.5 of the sheriff's note.

 

[18] For the sake of completeness I should refer here to the sheriff's criticism of the fact that the kinship care assessment had not been completed - see paragraphs 1.10 and 6.7 of his note. Counsel for the petitioners in turn criticised as being unsupported by the evidence the sheriff's finding in paragraph 6.7 "that TW's parents are willing and able to set and maintain boundaries, and to respect boundaries legitimately set by others, in the matter of contact between the respondents and the child". Counsel drew attention to certain passages in the evidence of Mr and Mrs R which he submitted contradicted the sheriff's finding. It seems to me that there was some force in what counsel had to say here, but for present purposes I do not think that I need to express a concluded opinion on the point.

 

[19] While I was deciding how I should dispose of this appeal, it did occur to me that I might order the preparation now of a full kinship care assessment in order to ascertain whether or not the option of CW being cared for by Mr and Mrs R was one that ought to be considered. But I decided against this since it seemed to me that any proposal that CW should be transferred to the care of Mr and Mrs R would founder on two inescapable facts, namely (i) that CW has now been in the care of the prospective adoptive parents for a period in excess of thirteen months, and (ii) that to remove her now from their care would run the risk - which I consider would be a substantial one - of causing her significant psychological damage. When the sheriff reached his decision on 6 December, 2010 CW had been in the care of the prospective adoptive parents for some eight months, and I have already drawn attention to his findings in fact in relation to her development while in their care.

 

[20] At paragraph 1.11 of his note the sheriff wrote:

 

There has been no evidence that a significant change in the care arrangements for this particular child or for any child of her age would have a seriously detrimental effect and so a kinship care assessment with a view to the possibility of the child being looked after by TW's parents should not be ruled out on that account.

 

As counsel for the petitioners rightly submitted under reference to the observations of Lord Simon of Glaisdale in A v B and C at pages 147/8, expert evidence was not required by the sheriff to tell him that to remove CW from the care of the prospective adoptive parents in which she was thriving and transfer her at some future date, as yet unknown, to the care of persons who were effectively complete strangers to her, namely Mr and Mrs R, would be likely to be seriously detrimental to her. Yet there is no sign in his note that the sheriff attached any weight to this very important consideration in concluding that a full kinship care assessment should be carried out.

 

[21] I have already referred to paragraph 4 of Mrs Anderson's affidavit in which she gives an up to date picture of CW's progress in the care of the prospective adoptive parents. In my opinion what was true when the sheriff made his decision on 6 December, 2010 is even more true now, namely that, however suitable as carers of CW (despite their respective ages) a kinship care assessment might demonstrate Mr and Mrs R to be, it would be plainly wrong to transfer CW to their care from the care of the prospective adoptive parents, and the prospect of permanence, continuity and stability that this offers, in the absence either of any necessity to do so or at least a very clear indication that it would so plainly be in her interests to do so as to justify taking the very substantial risk to her welfare, present and future, that would be involved in such a transfer. Needless to say, it has not been, and in the present state of affairs could not be, suggested that such a transfer is necessary and, however diligent his enquiries, I cannot see that the curator ad litem, or anyone else for that matter, could seriously advance such a very clear indication.

 

[22] It is true of course that such a transfer would mean that CW would enjoy the benefit of being in the care of members of her birth family (and here I am assuming that it makes no difference that the relationship between CW and Mr and Mrs R is one of nurture rather than nature, TW herself having been adopted by Mr and Mrs R). This is no doubt an important consideration. But it is certainly not a decisive one, and in this particular case it is in my opinion well and truly trumped both by the benefit, present and future, offered to CW by being brought up in the care of the prospective adoptive parents and by the quite unnecessary risk to her wellbeing which would be involved in her removal from their care now.

 

[23] The conditions and considerations applicable to the making of a permanence order are set out in section 84 of the 2007 Act. Subsections (1) and (2) can be disregarded here since they only apply in the case of a child aged 12 or over, which CW is not. The matter of ascertaining and having regard to the child's views is covered by subsection (5)(a) and (b)(i), but this can safely be ignored given that CW is now aged only just over 21/2. Subsection (5)(b)(ii) directs the court to have regard to the child's religious persuasion, racial origin and cultural and linguistic background. The subject of a religious upbringing for CW and her cultural and linguistic background were touched upon by the sheriff in some of the findings in fact which I have quoted in paragraph [8] above, and it was not suggested during the appeal hearing that anything of significance arose in this particular context. Nor does it appear that CW's racial origin has any particular bearing on the question whether or not a permanence order should be made in respect of her. As for subsection (5)(b)(iii), in my opinion the likely effect on CW of the making of a permanence order in the terms sought by the petitioners will be to clear the way ahead for her to be adopted by the prospective adoptive parents and hence to enjoy the benefits of permanence, stability and continuity that ought to be the birthright of every child. Finally in subsection (5) there is subparagraph (c), and I have already explained why I consider that the sheriff ought to have been satisfied that the terms of this particular subparagraph were satisfied in this case. Subsection (4) provides that, in considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. I hope it will be apparent from everything that I have to say in this note that this is what I have done. Finally, subsection (3) provides that the court may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made, and I shall come back to this shortly.

 

[24] Section 83 sets out the conditions which have to be met if provision granting authority for the child to be adopted is to be included in a permanence order. Subsection (1)(a) is that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted, and this has been done in the present case. Subsection (1)(b) is that the court is satisfied that the child has been, or is likely to be, placed for adoption, and this too is the case. Subsection (1)(c)(i) does not apply in this case since TW and JW have not consented to the making of an adoption order in relation to CW. The effect of subsection (1)(c)(ii) is that the court must be satisfied that the consent of each of TW and JW to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2). Subparagraph (c) of this last subsection in turn refers to subsection (3), and I have already explained why I consider that the sheriff ought to have found that this subsection applies in this case. This having been established, the question then is whether the consent of TW and JW should be dispensed with on this ground. This question and the condition set out in subsection (1)(d), namely that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority, have to be read in conjunction with subsections (2) to (4) of section 14 which apply where a court or adoption agency is coming to a decision relating to the adoption of a child. These subsections provide:

 

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to-

(a) the value of a stable family unit in the child's development,

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

(c) the child's religious persuasion, racial origin and cultural and linguistic background, and

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

 

[25] Read literally, I dare say that it may be said that subsection (2) imposes an impossible task upon the court or adoption agency since it is more or less inevitable that there will be circumstances in a particular case which are not known to the court or adoption agency and to which it cannot therefore have regard. So I think this subsection must mean that the court or adoption agency should have regard to all the relevant and material circumstances so far as these have come to its attention, and this I have done. Subsection (3) is in similar terms to section 84(4) only this time the reference is to the welfare of the child throughout her life rather than throughout her childhood, and here too I hope that it will be apparent that I have had this subsection constantly in view. I have already touched upon the subject matter of subparagraphs (b) and (c) of subsection (4). As for subparagraph (a), I have indeed had regard to the value of a stable family unit in CW's development. Finally, there is subparagraph (d) which refers to the likely effect on the child, throughout the child's life, of the making of an adoption order. In this context reference may be made to paragraph (g) of the report of the curator ad litem dated 12 May, 2010 which reads:

 

If the order as craved were to be made it would afford the child the requisite degree of legal security within which she could continue to grow, develop and thrive, free from the need for her circumstances and her life to be the subject of regular review (Looked After Child reviews; Children's Hearings reviews etc) with all the attendant uncertainties and insecurities such processes generate. The order would therefore provide the child with a stable framework within which she can develop meaningful and sustainable relationships that will hopefully form the basis for a happy, contented and productive life ahead.

 

[26] I turn back now to sections 83(1)(c)(ii) and (d) and 84(3). Needless to say, in cases of this kind there will always be a degree of uncertainty about what the future holds, so that one can never be absolutely sure that an order such as has been sought by the petitioners in this case will turn out to have been the best available option for the particular child. Yet all the while time marches on, the child continues to grow inexorably and there comes a point in time when the court just has to grasp the nettle and make the best judgment it can on an application such as this in light of all the available information and subject always to the relevant provisions of the 2007 Act. So approaching the matter, I have had very little hesitation in concluding that the consent of TW and JW to the making of an adoption order in relation to CW should be dispensed with and that it would be better for the child that a permanence order should be made in respect of her than that such an order should not be made and further that it would be better for her that the court should grant authority for her to be adopted than if it were not to grant such authority. In a nutshell what CW needs now above all is the assurance of a secure, stable and permanent home in which she may grow up and in which she will receive the consistent and loving care of committed parent figures, and much the best way of achieving this outcome in my opinion would be to clear the way for her adoption by the prospective adoptive parents by granting the order now sought.

 

[27] In the course of their submissions the solicitors for TW and JW drew attention to CW's right to family life as enshrined in article 8 of the European Convention on Human Rights, and it was submitted that the decision of the European Court of Human Rights in Johansen v Norway 23 EHRR 33 supported the judgement of the sheriff in this case. Counsel for the petitioners referred in particular to paragraphs 76, 78 and 80 of the European Court's decision and submitted that the proper approach to article 8 in the context of this case would be to analyse the competing rights of CW, TW and JW and that, had the sheriff done this, he would have given priority in light of this decision to CW's rights and would have recognised that she had formed a family life with the prospective adoptive parents the disruption of which would be an infringement of her rights under article 8. This provides:

 

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

[28] It is I think clear that the interference with the rights of TW and JW under article 8 to respect for their private and family life which is implicit in the making of a permanence order such as has been sought in this case may only be justified if it is in accordance with the law, pursues a legitimate aim or aims under article 8(2) and can be regarded as "necessary in a democratic society". It is clear too in this case that such an interference is in accordance with the law, namely the provisions of the 2007 Act, and pursues an aim which is legitimate under article 8(2), namely the protection of the health, rights and freedoms of CW. The issue thus comes to be whether the order may be seen as necessary in light of the circumstances of this case as a whole.

 

[29] For my own part, I am quite satisfied that the order is necessary for the reasons which I have already outlined. In short, CW has now been living happily and securely in the care of the prospective adoptive parents for more than thirteen months, there is no realistic prospect of her being returned to the care of TW or JW immediately, if at all, and, even if Mr and Mrs R were to be identified as suitable carers for CW, the possible advantage to her of being brought up by members of her birth family is clearly outweighed by the potential benefit to her of being brought up by the prospective adoptive parents and the risk of significant damage to her if she were to be removed now (or more likely, if it were to happen at all, at a later date) from their care. In my opinion it is time that a decision should be made which will put an end to the ongoing uncertainty of her current situation and clear the way for her to be adopted by the prospective adoptive parents so that she may be granted the stability and security of a permanent home with committed and capable parents which, as I have said, ought to be the birthright of every child. Of all the options available, only the order now sought offers the assured prospect of this here and now and accordingly it is in my view indeed necessary in light of the overriding requirements of CW's best interests. Indeed, in this context it is interesting to note is what is said in paragraph 80 of the decision of the European Court in Johansen, namely:

 

It is also relevant that it was in the child's interest to ensure that the process of establishing bonds with her foster parents was not disrupted. As already mentioned, the girl, who had been taken into care shortly after birth and had already spent half a year with temporary carers before being placed in a long term foster home, was at a stage of her development when it was crucial that she live under secure and emotionally stable conditions. The Court sees no reason to doubt that the care in the foster home had better prospects of success if the placement was made with a view to adoption.

 

[30] The terms of the interlocutor are, I hope, largely self-explanatory. Certain confidential details are contained in a separate appendix to the interlocutor which may be seen only by the petitioners unless the court otherwise permits. In part (b)(vi) of the crave the petitioners asked the court to vest in the prospective adoptive parents "the responsibility for personal care issues in respect of the child, including haircuts". I was not sure exactly what was meant here. So it seemed simpler just to confer on them the responsibility mentioned in section 1(1)(a) of the 1995 Act which must include whatever was meant in this part of the crave - see part 4(i) of the interlocutor. I was doubtful at first about vesting in the prospective adoptive parents the parental responsibility and right in relation to maintaining contact with CW when she is not living with them. But if, for example, she is admitted to hospital for any length of time it seems right to provide that they should have the responsibility of maintaining contact with her and the right to do so. In part (6) of the interlocutor there is no reference to section 2(1)(a) of the 1995 Act since this is covered in section 87 of the 2007 Act. It was not argued that there should be any continuing direct contact between the child and TW and JW which explains part (9) of the interlocutor. As for part (10), I am satisfied that on the making of the permanence order compulsory measures of supervision in respect of CW will no longer be necessary. There is no mention in the petitioners' crave of an order to terminate the supervision requirement, but counsel invited me to pronounce such an order, and this was not opposed by the solicitors for TW and JW. It was agreed that no expenses should be found due to or by any of the parties whatever the outcome of the appeal.