Scottish Sheriff Court Decisions

AD5/2011

 

Application by LD for the Adoption of Child CH

 

Act: Mrs Guthrie of John Henderson & Sons, Solicitors, Dumfries

Alt: Miss Beattie of Brazenall & Orr, Solicitors, Dumfries

 

DUMFRIES: 15 September 2011

 

The Sheriff, having resumed consideration of the cause, Finds in Fact:

1.      The petitioner, who wishes to prevent her identity being disclosed in terms of Rule 10 of the Sheriff Court Adoption Rules 2009, is LD. She resides in a small town in Dumfriesshire. She is 45 years of age. She is domiciled in a part of the British Islands and has resided in a part of the British Islands for at least one year prior to the date of this application.

2.      The subject of the petition is the female child CH who is four years of age having been born on 1 August 2007.

3.      The mother of CH is CB who resides at an address in Dumfries. She is 24 years of age. She does not work. Her income consists of State Benefits. She lives alone in a house of which she is the sole tenant. That house has two bedrooms. She has parental responsibilities and rights in respect of CH. She does not consent to the making of an adoption order in respect of CH.

4.      The father of CH is MH who resides at an address in Dumfries. He is 30 years of age. He lives with his mother. He has parental responsibilities and rights in respect of CH. He does not consent to the making of an adoption order in respect of CH.

5.      CH was placed with the petitioner for adoption by Dumfries and Galloway Council ("the Council"), a local authority and adoption agency, on 28 September 2010. At all times since then CH's home has been with the petitioner.

6.      Since CH was placed with the petitioner by the Council, sufficient opportunities have been given to the Council to see CH with the petitioner in the home environment. The Council has submitted a report to the Court on the suitability of the petitioner and other matters relevant to the operation of section 14 of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act").

7.      LD is a qualified hairdresser but does not work. Her income consists of a variety of State Benefits. She lives with her daughter, BJD, who is 10 years of age. She is the tenant of her house which consists of a living room, kitchen, two bedrooms and bathroom. It is suitably furnished and maintained.

8.      The petitioner has a strong network of close family and friends. She is providing CH with a safe, secure and loving home. CH is well settled with her. She has related well to BJD. LD has worked closely with the Department, nursery school and health professionals to ensure that CH's welfare, learning and health needs are met. She is likely to continue to do so throughout the life of CH.

9.      Prior to the birth of CH there were concerns about the lifestyle of her parents. MH was an intra-veinous drug user. CB was also a drug user. CB failed to keep appointments with the multi-disciplinary clinic established to monitor her progress during her pregnancy, to provide advice and assistance to her and to prepare for the likelihood of a birth with neo-natal abstinence.

10.  On 10 July 2007, in consultation with other agencies with an interest in the welfare of CB's unborn child, a decision was taken by the Social Work Department of the Council ("the Department") that the child would be placed on the Dumfries and Galloway Child Protection Register under the categories of Physical Neglect and Emotional Abuse.

11.  From 10 July 2007 until the birth of CH, both parents failed to attend meetings of the Core Group concerned with the welfare of CH. Both minimised their drug use and failed to demonstrate understanding of the likely adverse effect of that use on the welfare of CH.

12.  Following the birth of CH on 1 August 2007, she remained in Dumfries and Galloway Royal Infirmary. She was transferred to the neo-natal unit on 7 August 2007.

13.  On 7 August 2007 a Child Protection Order was granted with a condition that CH's parents should have contact with her for four hours each day.

14.  The Children's Hearing met on 9 August 2007 to consider the Child Protection Order which was continued.

15.  On 15 August 2007 CH was discharged from hospital and placed in foster care. She remained in foster care with the same carer until 20 November 2007.

16.  Between 9 August 2007 and 20 November 2007 the Children's Hearing met on various occasions to consider the referral of CH. A Place of Safety Order was issued on 17 August 2007 and continued on several occasions.

17.  An application was made to the Sheriff to find the grounds of referral established. On 18 October 2007 the Sheriff, in terms of section 52(2)(c) of the 1995 Act, found it established that CH was likely to suffer unnecessarily and to be impaired seriously in her health and development, due to lack of parental care. The Statement of Facts in respect of these grounds narrated the drug use of both CB and MH and their history of involvement with the police and criminal justice system; the failure of CB to attend appointments, the chaotic lifestyle of both until 1 August 2007; the likely danger to the health of CH because of neonatal abstinence syndrome; and the inexperience of parenting of CB and MH.

18.  On 2 November 2007 the Children's Hearing made a Supervision Requirement in respect of CH with a condition that she reside with her foster carer.

19.  During the period after the birth of CH until 20 November 2007 both parents had regular contact with her. That contact went well. There were indications that CB was addressing her drug use to some extent. MH had been placed on a Drug Treatment and Testing Order. Concerns remained about the engagement of both with Cameron House, the drug treatment centre which both attended.

20.  On 13 November 2007 the Child Protection Core Group decided to recommend to the Children's Hearing that CB should return to live with her parents. On 20 November the Children's Hearing varied the Supervision Requirement and CH returned to reside with her parents at the address where both lived.

21.  On 8 January 2008 a Child Review Child Protection Conference recommended that CH remain on the Child Protection Register due to lack of cooperation with Cameron House by CB and MH. Similar concerns, and in relation to continued drug use, were expressed at meetings between February and May 2008. There were no reported concerns about the care of CH. During this time MH was continuing to use valium and heroin and a warrant was issued for his arrest. Concerns about drug misuse by CB continued.

22.  During July and August 2008 CB started to engage with Cameron House, attended some of her appointments and provided evidence that she was no longer taking heroin. She discussed the possibility of leaving MH and moving to a refuge in Stranraer.

23.  On 14 August 2008 CB reported a cut to her eye which had been caused by MH pushing her against a coffee table. She indicated a wish to leave him. Arrangements were made for her to move to a refuge in Stranraer. CB was reluctant to go and leave MH. She agreed when social workers indicated that she would not be able to return home to MH with CH. She moved to Stranraer with CH. On 18 August CB contacted the Department indicating a wish to return to Dumfries. She did so after she and MH agreed that he would move to reside with his mother.

24.  MH has not resided permanently with CB since 18 August 2008, although she continued to have contact with him.

25.  On 19 August 2008 CB and MH were informed by the Department that if CH were removed from their care again this would be for care on a permanent basis.

26.  Between 19 August and 14 November 2008 CB and MH missed appointments with social workers and Cameron House. Concerns continued to be expressed at Meetings and Conferences about the lack of engagement of CB and MH.

27.  A Social Background Report dated 29 September 2008 concluded "Since [CH] was returned to her parent's care there have been no concerns raised about her health or development."

28.  On 18 November 2008, after a Review Child Protection Case Conference, CB and MH were arrested because they had not attended court. CB was released on bail on 19 November 2008. While CB and MH were in custody the Department placed CH in the care of MH's mother.

29.  On 17 December 2008 CB reported that MH had assaulted her. She displayed a large bruise on the side of her eye. Shortly afterwards the Department provided CB with a mobile phone for safety reasons. On 30 December it was arranged with CB that MH would have supervised contact only with CH.

30.  On 31 December 2008 MH was seen alone with CH. He had taken CH out while she had been left at his mother's house by CB.

31.  On 5 January 2009 the Child Protection Core Group agreed that MH would only have supervised contact with CH. That was made a condition of the Supervision Requirement at a Hearing held on 6 January 2009.

32.  Between January and June 2009 CB was erratic in attending appointments with the Department and Cameron House. She continued to test positive for opiates. There were indications that MH was staying with her from time to time and that, on occasions, MH had seen CH without supervision. On 23 March 2009 CB was placed on probation. MH was sentenced to six months imprisonment. Some appointments with the Department, Cameron House and the Criminal Justice Department were missed by CB. CB continued to live an erratic lifestyle. CB had become pregnant. She missed appointments with the Multi Disciplinary Team assembled to assist her with her pregnancy.

33.  A Social Background Report dated 5 May 2009 concluded "Since [CH] was returned to her parent's care there have been no concerns raised about her health or development." It recorded that in 2007, when [CH] was in care, "[CB] and [MH] engaged well with the Child Protection plan and never missed a contact. They built up a good attachment with [CH] and those involved in the family noted good levels of care by both parents with [CH]......There have been no concerns about [CH's] care and she is developing well." It reported "[CB] seeks advice and information as necessary and ensures all [CH's] health needs are met. [CH] is a well contented rewarding baby. She is alert and responsive. She makes good eye contact, smiles a lot and engages in lots of babbling. [CH] is very attached to both her parents. Both [CB] and [MH] show lots of physical affection towards [CH] and are openly proud of her achievements. [CH] is well stimulated within the home with age appropriate toys, and enjoys regular trips to the park with [CB]. [CH] is developing well and is meeting all her developmental milestones. She is walking and keen to explore her environment. [CH's] health is somewhat poor but [CB] is engaging fully with Health Visitor and parent's as First Teachers to address this matter."

34.  On 29 June 2009 CB gave birth to L who was very poorly and was transferred to hospital in Glasgow. CB also went to Glasgow. She left CH in the care of MH's mother. L died on 1 July 2009. CB left the Glasgow Hospital against medical advice.

35.  During the time CB and L were in Glasgow, there were concerns about the suitability of MH's mother as a carer for CH. A Child Protection Order was sought and granted. CH was placed in foster care on 1 July 2009. She remained in foster care with the same carer until 28 September 2010.

36.  After CH was received into foster care, concerns were noted about her difficulty with her diet and she was also referred for speech and language therapy. In the Minute of the Permanency Panel held on 8 June 2010 these were described as "mild developmental delay in her speech and language" which was described as having improved significantly in her foster placement and "a hugely inadequate diet and she could not tolerate many food types......this also proved that [CH] had been exposed to a very poor diet at home........[CH's] foster carer had spent a lot of time introducing [CH] to different food types and although she is still a very fussy eater her diet is a lot better."

37.  On 2 July 2009 a member of the Department met CB to explain what had happened to CH. She left that meeting with the impression that CH would be returned to her in about twelve weeks after she had had a chance to recover from the loss of L.

38.  The Children's Hearing met on 3 July 2009 to consider the Child Protection Order and continued it subject to conditions that there should be supervised contact between CB and both her parents.

39.  Between 13 July 2009 and 29 September 2009 the Children's Hearing met on various occasions to consider the referral of CH. A Place of Safety Order was issued on 13 July 2009 and continued on several occasions. On 31 July 2009 a condition was attached to the Order that CH was to have supervised contact with CB and MH seven days a week. On 18 August a Safeguarder was appointed to CH. That day the condition of contact attached to the Place of Safety Order was varied to supervised contact five days a week. This was because the foster carer could not accommodate contact on seven days a week and a change of carer would have been necessary. CB accepted that this was in the best interests of CH.

40.  An application was made to the Sheriff to find the grounds of referral established. On 20 August 2009 the Sheriff, in terms of section 52(2)(c) of the 1995 Act, found it established that CH was likely to suffer unnecessarily and to be impaired seriously in her health and development, due to lack of parental care. The Statement of Facts in respect of these grounds narrated that CB and MH had separated in December 2008 following an incident of domestic violence but had reunited; that both had a history of drug misuse and had, earlier that year, tested positive for opiates and had a poor record of attendance at and engagement with Cameron House; that both had convictions for shoplifting and, in the case of CB, had failed to comply with the terms of probation and, in the case of MH had been sentenced to imprisonment; that CB had difficulty keeping appointments with agencies and was hostile to them; that she had left hospital against medical advice following the death of L; and that CB was vulnerable and had been through an emotional and very difficult time.

41.  On 5 August 2009 CB advised the Department that she wished to move from Dumfries and away from MH. Arrangements were made for her to move to a refuge in Carlisle and she went there on 10 August 2009. MH visited her there against the rules of the refuge. She returned to Dumfries shortly after.

42.  On 29 September 2009 the Children's Hearing made a Supervision Requirement in respect of CH with a condition that she reside with her foster carer and that her parents should have contact with her. The Hearing had a Report from the Department where the recommendation was

"It is the request of the Social Work Department that a Place of Safety Order is continued for [CH] to remain with Foster Carers and for her contact with her parents to be supervised. This will enable the completion of the Safeguarder's Report and will allow [CB] and [MH] to engage with all agencies and evidence their abstinence from illicit drug use. This would inform the assessment of their capacity and commitment to parent [CH] in the longer term."

An updated Report was also available which contained the recommendation

"It is the recommendation by the writer and the Social Work Department that [CH's] needs can only be met by a permanent placement out with the family home.

It is the request from the Social Work Department that [CH] is made the subject of Supervision Requirement, S70 of the Children (Scotland ) Act 1995 to reside with the current Foster Carers, until the Permanency Process has been completed.

We would also request that the Condition of Supervised Contact for [CB] and [MH] be varied to, the Discretion of the Social Work Department which is in line with the Permanency Process."

It also had the Report of Safeguarder whose recommendation was that

"On balance [CH's] best interests may best be met by a permanent placement and this will require her to remain accommodated until this can happen."

The Hearing refused the Department's request for contact at their discretion and attached a condition that both CB and MH were to have contact with CH on five days each week.

43.  Following the Children's Hearing on 29 September 2009 the view of the Department was that CH should not be returned to her parents or either of them and that a permanent placement out with her immediate family should be sought for her. That view was reflected in a Report of a Looked After Child (LAC) Review (Production No 12) dated 28 October 2009, a Report of a Core Group Meeting held on 13 November 2009 (Production No. 13), the Minute of a LAC review meeting on 5 January 2010 (Production No. 19) and a Social Background Report dated 4 March 2010 (Production No. 14). At the LAC review meeting on 5 January 2010 a Form E was commissioned with a view to requesting approval from the Permanency Panel of the Council that CH be adopted.

44.  During the period from June 2009 until May 2010, CB was erratic in her attendance at Cameron House. She continued her association with MH. She continued to misuse drugs. She could be hostile and confrontational in her relationship with drugs workers, social workers and to those supervising her contact with CH. She attended contact with CH regularly. On occasions she would be late. During contact CH appeared to enjoy contact with CB who interacted well with her.

45.  Contact has been, on occasions, confusing for CH. She refers to the fact that she has "two mummies". On two occasions after contact, in January 2011 and in June 2011, she has been faecally incontinent which is out of character for her. Both these occasions took place after her placement with LD and after CH was being told that she was going to remain with LD as her new home and new life.

46.  CH has been told by LD that she is to be adopted. She has been told that her new middle name is to be "Camryn".

47.  Consideration was given by the Department to the placement of CH with a family member. No suitable family member was available and this was not successful.

48.  On 8 June 2010 the case of CH was considered by the Permanency Panel. Their decision was to recommend that CH was a child suitable for adoption.

49.  On 10 August 2010 the Permanency Panel recommended that the petitioner be matched with LD as her adopter and that the legal route to adoption should be by petition by the petitioner. These recommendations were endorsed by the Agency Decision Maker on 19 August 2010.

50.  On 17 August 2010 the Children's Hearing met to consider the proposed adoption of CH and to provide advice to the Sheriff. Neither CB nor MH were present. It was unclear that intimation of the Hearing had been given to them. The Hearing was continued to 30 August 2010 when both parents attended. Both made clear their opposition to the proposed adoption. The Hearing decided to recommend to the Sheriff that adoption was the best way forward for CH and varied the condition of the Supervision Requirement to allow for contact with CH by CB and MH on one day each week for two hours.

51.  On 28 September 2010 the Children's Hearing varied the condition of the Supervision Requirement to permit her to reside with the petitioner and to reduce the contact with CH by CB and MH to one day each month for two hours.

52.  Since July 2009 CB and MH have exercised contact with CH on a regular basis. Some appointments have been missed. MH has missed more appointments than CB. For some both have been late and have left early. Generally CB has engaged well with CH at contact and has played with her and brought her gifts. She has taken her out from the place where contact takes place. Contact is supervised. CB has been obliged to exercise contact jointly with MH. She has requested that the Department make arrangements for her to exercise contact separately but that request has been refused by the Department. CH appears to enjoy contact and engages with CB. She can be confused and upset if contact does not take place. Since contact was restricted to one day each week in August 2010 and one day each month in September 2010 CB has not missed any contact visits. Contact takes place in the town where CH resides. That is some distance from Dumfries and requires a journey by bus by CB. Vouchers are provided.

53.  Throughout the period from the birth of CH, MH has shown a lack of commitment to her, has been uncooperative with the Department and other agencies, has continued to use drugs, has failed to engage with Cameron House, has served a period of imprisonment and has failed to demonstrate that he could care for CH or fulfil his parental responsibilities to her. The quality of his contact with MH was poor at contact visits. He has consistently missed a appointments with a range of agencies.

54.  CB is no longer living with MH. She has ended her association with him. She still sees him and speaks to him but is no longer in a relationship with him. Since May 2010 she has been engaging with Addaction, a drug support agency. She receives methadone but has ceased her use of heroin or other drugs. She keeps most of her appointments. Occasionally she uses prescribed benzodiazepines to assist her to sleep.

55.  The petition seeking the adoption of CH was presented by the petitioner on 17 February 2011. On 1 April 2011 a Reporting Officer was appointed and a preliminary Hearing fixed for 19 May 2011. Notice of Opposition to the petition was lodged late by CB and, on 17 May 2011 she was allowed to lodge Answers. MH has not opposed the petition. On 19 May 2011 proof was assigned for 11 August 2011.

56.  The Report of the Reporting Officer is dated 27 April 2011. He concludes that the welfare of CH would be better safeguarded and promoted in the making of an Adoption Order than it would be by not making he Order and that an Adoption Order is likely to safeguard and promote the welfare of CH throughout her life. On 13 May 2011 CB contacted the Reporting Officer. She indicated that she intended to oppose the Adoption Petition and did not intend to consent to the adoption. She advised the Reporting Officer that she had put the difficulties in her life behind her and was now in a position to provide suitable care for her child.

57.  On 9 August 2011 the Department requested a review of the Supervision Requirement to reduce the contact from two hours a month to nil.

58.  If the adoption order is granted the petitioner will safeguard and promote the welfare of CH throughout her life.

59.  If the adoption order is not granted it is unlikely that the Department will work to achieve a rehabilitation of CH with CB. Even if they did so it is unlikely that this would happen for several months. That would cause uncertainty and confusion for CH. The Department has no alternative plan for the care of CH throughout her life save that of adoption by LD.

 

Finds in Fact and in Law:

1.      CB is able satisfactorily to discharge her parental responsibilities in relation to CH and is likely to continue to be able to do so

2.      MH is unable satisfactorily to discharge his parental responsibilities in relation to CH and is likely to continue to be unable to do so.

3.      Having regard to the welfare of CH throughout her life, and in terms of section 31(3)(d) of the 2009 Act, the consent of CB and MH to the adoption of CH should be dispensed with.

4.      Having regard to the welfare of CH throughout her life and the likely effect on her, it is better that the adoption order sought in the petition should be granted than not.

5.      Having regard to the welfare of CH throughout her life, it is better that no condition that CB should have contact with CH should be attached to the adoption order.

6.      Compulsory measures of supervision in respect of CH are no longer necessary.

THEREFORE Dispenses with the consent of CB and MH to the adoption of CH; Grants the prayer of the petition and Makes an Adoption Order in favour of LD in respect of CH; Refuses to make an Order that CB should have contact with CH; Orders that the Supervision Requirements made in respect of CH on 2 November 2007 and 29 September 2009 shall cease to have effect; Finds no expenses due to or by any party

 

 

 

Note:

Introduction

[1]               This is an application by LD to adopt CH. It is made in terms of the 2007 Act. Neither CB nor MH, the parents of CH consent to the adoption. I heard evidence at a proof on 11 August.

[2]               Much of the evidence was agreed in the sense that there were two Joint Minutes of Agreement. Although these recorded some agreed facts (the age of the child, the dates of her reception by and residence with the petitioner and that CB did not oppose the petition in relation to the suitability of the petitioner or her household), they principally sought to agree the nature and terms of the Productions of both parties. In particular all the productions by both the petitioner and CB were agreed to be true copies. The petitioner's Production No 16 was a "Chronology of Events". It described, by reference to a series of dates, what had happened on these dates. It was agreed to be "a true record of the dates of events in relation to said child, [CH]". On my enquiry before the commencement of the proof, Mrs Guthrie and Miss Beattie confirmed that both the dates, and what was described as having happened on the dates, was agreed. In respect of the petitioner's Productions Nos. 2 to 14, these were agreed to be "true copies of Form E, Minutes, Reports, Updates and Reviews from the Children's Panel". I took that to mean what it said; but not that what was in these documents was true, agreed or proved. Both Mrs Guthrie and Miss Beattie confirmed, however, that I should also treat the contents of these documents as agreed. As I shall discuss, that posed a problem in assessing the evidence because what was stated in the documents, both in relation to fact and any inferences, conclusions and opinions based on that fact, was sometimes inconsistent with the evidence of witnesses. And these inconsistencies were, by and large, not the subject of discussion in the examination and cross examination of witnesses. The matter was clearer in relation to the petitioner's Productions Nos. 17 to 27(a)-(q) which were a record of a description of a number of contact visits between CH and her parents by a care worker who had observed them. Their terms were agreed and there was no contradictory evidence. The same was true of the only Production for CB which was a letter from a drugs worker who had dealt with her. It described the contact of the drugs worker with CB and there was little in the other evidence to contradict what was said.

The Evidence

[3]               The witnesses who gave evidence were the petitioner (she also gave evidence by affidavit in respect of her address and personal details), Liz Ezard, the Senior Social Worker with responsibility for CH, John Flinn, a Senior Social Worker who had responsibility for CH between March and December 2010 and Diane Shaw, a Social Work Assistant who supervised contact between CH and her parents between January and September 2009 and after September 2010. CB also gave evidence. I should record that, with the agreement of CB, the petitioner gave evidence outwith the presence of CB. By agreement, Miss Beattie then consulted with her to advise her what that evidence had been.

[4]               The evidence of the petitioner confirmed the agreement that there was no issue about her ability to provide a home for CH and bring her up in a satisfactory manner. CH had clearly settled well into her home and related well to her and to her daughter. Her evidence confirmed what was contained in the Adoption Report, and in the Report by the Reporting Officer, about her suitability as an adoptive parent for CB. Oddly, I thought, there was no reference at all in either of these Reports to the father of the petitioner's daughter, what contact or relationship, if any, he had with her and her daughter or what part, however minor or incidental, he might play in the life of CB. That contrasted with what appeared to be an emphasis, on the part of the Department, on the part which CB's father, MH, might have in her life - particularly the contact with her which was facilitated and encouraged until the view of the Department had turned towards permanency away from CB and MH.

[5]               On the question of contact there were two aspects of the petitioner's evidence. She spoke of how contact had operated since September 2010. She said that CB was "really upset at first" wanting cuddles when she returned. She referred to isolated incidents of soiling but generally the gist of her evidence was that contact had worked although there had been some difficulties. CH seemed to look forward to it but wanted a cuddle when she returned. She did not see what CH got out of the contact. In relation to contact if the adoption were granted, she preferred that this did not happen but would facilitate it. In cross examination she said again that she did not see what CH got out of contact but said that, so far as she was aware, she enjoyed it and looked forward to it. She was not asked directly if she would encourage and facilitate contact if no contact order were made. My impression of her evidence was that this would be unlikely. That is confirmed by what she is reported as having said to the Reporting Officer.

[6]               There was little examination of the petitioner's attitude to CH knowing about her origins. LD said that she understood the importance of that and said that there was no hiding from CH of who her mother and father were. The Report of the Reporting Officer states that the petitioner intends to work with the Department in preparing a family life book. One aspect of where CH "comes from" is the proposed change in her name. It is apparent from the face of the petition and is referred to in the documentary evidence. It was not the subject of exploration with the petitioner in evidence, but was referred to by CB in her evidence. It is proposed that CH takes the surname of the petitioner. But it is also proposed that the name "Camryn" is substituted for her present middle names which, according to the uncontradicted evidence of CB, were those of her deceased mother. That was clearly a source of concern to CB. It is perhaps unfortunate that the matter was not explored. It might have shed light on how committed the petitioner was to ensuring that CH knew her origins; something which she said she acknowledged and to which Ms Ezard, in her evidence, appeared to attach importance.

[7]               The principal witness for the petitioner was Liz Ezard. Although others from the Department were involved in the case of CH it was clear that she was the principal guiding hand in the management of that case and in the decisions and recommendations which affected it. Much of her evidence consisted of taking her through the chronology of events which was production No. 16 for the petitioner and was the spine of the petitioner's case (and, of course, the case of the Department who supported her). Much of that is reflected in the Findings in Fact which I have made. There is little point in rehearsing Ms Ezard's evidence. Much of it, in the sense that she spoke to the chronology and the numerous Reports and Minutes which supported it, was, in any event, the subject of agreement. Many of the Reports, whether submitted to the Children's Hearing or the various Core Groups or Case Conferences, repeated themselves and made reference to the same events or circumstances surrounding CH, CB, MH and their lives. So it is perhaps more productive to examine, briefly, the main themes of the evidence of Ms Ezard.

[8]               I have to say that, where it consisted of opinion, rather that fact supported by other evidence, I felt I had to treat her evidence with some caution. Why do I say that? I had the firm impression that she had formed an early view that permanency outwith care by CB was the way forward for CH. Yet she had put her name to Reports which, until the removal of CH in June 2009, had spoken of the ability of CB to care for CH. I have quoted (Finding in Fact 33) that closest to the removal. I found it difficult to reconcile that with the sudden shift to permanency outwith care by CB and with the time which it took for that to find form in an application to the court.

[9]               There is no doubt that one of the difficulties which CB placed in her own path in seeking to convince the Department that CH should be returned to her care was her continued association with MH. On reading the numerous Reports etc. on several occasions it is difficult to see what MH had to offer CH as a parent. He was clearly not capable of caring for her on a day to day basis. His relationship with her at contact was less than satisfactory. He did not seem to engage with her without prompting. His attendance was less than satisfactory. He was clearly regarded, correctly I would agree. as a bad influence on CB. Yet, when CB asked that she exercise contact separately from MH that was not arranged although it is difficult to see what would have been adverse to CH's welfare in that. So, the comment in Production No. 26 (the Children and Families Social Background Report signed by Ms Ezard) "There are recent reports from Both CB and MH that they are no longer in a relationship. Both still attend the monthly contact sessions together" is misleading.

[10]           I was also unimpressed by the efforts to provide up to date information about the situation of CB. The initial evidential obligation on the petitioner (supported by the Department - they are the source of the information on which her petition is based) in terms of sections 31(3)(c) and 31(4) relates to the present. (I deal with that in the next section.) Much of the evidence about that from Ms Ezard seemed to be historic or, as in relation to the association between CB and MH, on occasional sightings of them together. It was focused almost entirely on the past.

[11]           I have to take the evidence of Ms Ezard, together with the Reports and documentation from June 2009, as representing the view of the Department about the prospect of the rehabilitation of CH with CB. That evidence, against the background of the Reports, and the persistent reduction in contact, particularly since the placement with LD, made clear that there is no prospect of rehabilitation with CB being attempted or encouraged by the Department. Ms Ezard said as much towards the end of her examination in chief. It was striking, in dealing with that issue, that reference was made to MH's relapse into heroin use and that the emphasis with regard to CB was not in relation to her negative tests for opiates but to the occasional positive test for benzodiazepine. It was a feature of the evidence which I heard that, even allowing for the association of CB and MH, there was a reluctance to look at them separately; even although the Reports and other documentation are peppered with more favourable references to CB's ability to care for and relate to CH and her greater ability to overcome the drug addiction which is at the heart of the problem. (It has to be said that the Children's Hearing appeared to approach the matter with a more open mind and with regard to keeping open the possibility of rehabilitation because they did not always support the requests by the Department that contact should be reduced; or left to the Department's discretion.)

[12]           The evidence of John Flinn related to his involvement in the life of CH between the end of March 2010 and December 2010. I formed the impression that much of it was second hand. He had compiled the Form E which was, largely, a compilation and recitation of the other Reports etc. many of which were in evidence as primary sources. He had certainly visited CH and was able to report on her care by her foster parents. He prepared the bus passes given to CB and MH to facilitate contact. He received reports of how that contact went. He was unable to assist on the subject of how CH reacted to contact. He had not seen her. He had not seen either CB or MH at all between September and December 2010. I found his evidence of little assistance.

[13]           Diane Shaw had supervised contact with CH between January and September 2009 and, again, between September 2010 and the present day. She collected CH and took her to contact. She was there when it took place. Generally she gave the impression that contact went well but that, more recently, it was causing confusion. In that connection she referred to the two incidents of incontinence in January 2011 and in June 2011. Her opinion was that the main attachment of CH was now to LD.

[14]           Although, in the course of the short proof, CB had become distressed and, at times, angry (particularly during the evidence of Ms Ezard), when she came to give evidence I was impressed by her collected approach. She clearly found the whole process distressing and difficult. Her position was set out in her early answers. She opposed the adoption. She felt that CH had endured too many placements. She thought that if adoption was to be the route forward that "should have been done" a long time ago. She did not dispute that CH was well cared for by LD (that was a matter of admission on her behalf). She accepted that her life had been chaotic and that her past was not a credit to her. It was clear also that the death of her second child, L, in June 2009 had left a mark. I found her convincing when she said that she had understood, in July 2009, that CH would be returned to her after twenty one days when she had time to recover from that death. I also felt she was measured in her evidence about her current association with MH. She did not attempt to disguise that she still saw him but she was convincing in her description of the fact that the past relationship was just that. Her description of her failure to engage with Cameron House was less convincing. There was still a tendency to blame the workers who had been attempting to assist her. She gave a familiar account of her present reliance on methadone - not wanting to start on that path but being advised that it was in her best interests. Her description of her involvement with Addaction was supported by the agreed letter from the agency. I found convincing her evidence that she had been abstinent from heroin for the past 18 months (the other evidence in the documentation for the petitioner seemed to support that). It was difficult to be completely convinced about her explanation of the positive tests for benzodiazepines. If it had been prescribed, as she claimed, it might have been better if that had been vouched. But it was a possibility which could not be excluded. She clearly wanted CH back. She referred to the loss of her baby; said that she would do all that the Department might ask of her. She wanted to do good with her life. She described CH as "the only thing". Her answer to the question about the role of MH was quite straightforward - he was the father of CH and his role would have to be a matter for the Department. She denied that she was in a relationship with him but said that she saw him "in the passing". He was no longer a joint tenant of her house. He did not live with her. On the subject of past contact she accepted that she had missed some. She explained that, on occasions, she felt depressed and it was better for CH not to see her. She described the difficulties in travelling the distance from Dumfries or Stranraer and back to the town where contact took place. Her assessment of these difficulties was a more realistic one than that of Ms Ezard. She spoke enthusiastically about how contact had gone. I was not, however, convinced that, whatever the reason for it, she understood the potential for confusion in MH if that contact were to continue after any adoption order. Although she had the self awareness, or, perhaps, self interest, to moderate her demand to less than the monthly contact presently enjoyed. She was certainly very clear that she wished contact to continue and that this would be in CH's best interests. Beyond the obvious continuation of her contact with CH it was difficult to discern why that was.

[15]           The cross examination added little and detracted little from her evidence in chief. She made some valid points. She said that CH had developed an attachment to her previous foster carer but had moved on from that. She could do so again. She was asked if what she wanted was just a dream. She replied that it was what she wanted in life. When it was put to her that CH was settled with the possibility of a new family she responded that a child should be with her natural parents if they wanted her and were able to care for her.

[16]           There was one other passage in cross examination which was revealing and where I found CB to be credible. She reported that CH had told her that she had a new name, "Camryn". I believed her when she said that. She referred to two incidents where the subject had come up. As I have noted above, it is unfortunate that this was not raised with LD. But there is reference to the matter in Production No. 26 where an explanation is attempted - it was said to be a reference to a nursery friend called "Cameron". That is unconvincing. I prefer and accept what CB said on the matter. That is reflected in my Finding in Fact No. 46.

Submissions

[17]           I discuss the law referred to in the submissions of the parties in the following section. There was little disagreement between the parties that the sections of the 2007 Act which I discuss were those relevant to the present case. Mrs Guthrie submitted that MH had not opposed the petition and that there was sufficient in the evidence and the Reports etc. to dispense with his consent. There was no contrary submission. She laid considerable stress on the past behaviour of CB and submitted that this, and the opinion of the Department witnesses about the lack of likelihood of change, more than satisfied either the sections 31(3)(c) and 31(4) ground or the section 31(3)(d) ground. No order for post adoption contact should be made. Miss Beattie laid stress on the lack of evidence of any concern for the health of CH when in the care of CB before June 2009. CB had taken steps to better herself. She was no longer a regular drug user. She had distanced herself from MH. She now accessed help and engaged with her drug worker. She submitted that section 31(4)(a) was not made out and that CB was in a position to discharge her parental responsibilities. It had not been established that CB was unlikely to be unable to continue to do so. In relation to section 31(3(d) the question was what was in CH's best interests. If a parent was able to care for her why should some other person do so. As to post adoption contact she adopted the position taken by CB in evidence - contact every six months. She suggested that continuing the direct link could only be a good thing.

The Applicable Law

[18]           This application is made in terms of section 30 of the 2007 Act. It is the first such opposed application which has come to proof in this court. In the submissions which I heard I was advised that there were no cases which had been reported which might give guidance on the provisions of the 2007 Act insofar as they relate to adoptions. My own researches indicate that this may be correct although there have been several which consider the provisions of the 2007 Act in relation to applications for permanence orders in terms of section 80 and, particularly, in relation to the granting of authority for the child who is to be subject to the order to be adopted. There was oblique reference in the submissions to ANS, DCS v ML [2011] CSIH 38 a decision of the First Division dated 21 June 2011. It was suggested by both parties that, while this had decided the compatibility of section 31(3)(d) of the 2007 Act with the terms of Article 8 of the European Convention of Human Rights, and, so, its lawfulness in terms of section 29(2)(d) of the Scotland Act 1998, it did not assist with how that section was to be applied. For reasons which I will discuss, I do not entirely agree with that suggestion. In ANS, DCS v ML the Lord President described the 2007 Act as "in some respects at least, a radical departure from the previous statutory regime for the adoption of children in Scotland - that contained in the Adoption (Scotland) Act 1978 (as amended)". So it may be helpful if I set out the relevant provisions of the 2007 Act, some of which do differ significantly from the 1978 provisions, and explain my understanding of their application.

[19]           Section 28 describes adoption orders. The relevant sub-sections are as follows:

"(1) An adoption order is an order made by the appropriate court on an application under section 29 or 30 vesting the parental responsibilities and parental rights in relation to a child in the adopters or adopter.

(2) The court must not make an adoption order unless it considers that it would be better for the child that the order may be made than not.

(3) An adoption order may contain such terms and conditions as the court thinks fit............."

 

[20]           Section 30 describes individuals (as distinct from couples) who may apply for such an order. Those include the petitioner.

[21]           Section 14 provides for the considerations which apply in relation to decisions relating to the adoption of a child. I will set it out fully because, although not all are matters to which the court must have regard directly, they may be relevant to any decision which the court must make:

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(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.

(5) Where an adoption agency is placing a child for adoption it must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.

(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.

(7) If an adoption agency concludes that there is an alternative such as is mentioned in subsection (6), it must not make arrangements for the adoption of the child.

(8) Without prejudice to the generality of subsection (4)(b), a child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of that subsection.

 

[22]           Section 31 sets out five conditions about which the court must be satisfied before an adoption order can be made. Only the first is relevant to the circumstances of the present case and the applicable provisions are as follows:

(1) An adoption order may not be made unless one of the five conditions is met.

(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied-

(a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or

(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3).

(3) Those grounds are-

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(c) that subsection (4) or (5) applies,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(4) 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.

(5) This subsection applies if-

(a) the parent or guardian has, by virtue of the making of a relevant order, no parental responsibilities or parental rights in relation to the child, and

(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian.

(6) In subsection (5)(a), "relevant order" means a permanence order which does not include provision granting authority for the child to whom the order relates to be adopted...........

(15) In subsections (2) and (3), "parent", in relation to the child to be adopted, means-

(a) a parent who has any parental responsibilities or parental rights in relation to the child, or

(b) a parent who, by virtue of a permanence order which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.

 

In ANS, DCS v ML the Lord President contrasts these provisions with those in the 1978 Act. I set them out below.

[23]           The principal decision which the court is asked by the petitioner to make in the present case is to grant the adoption order described in section 28(1). But there is another consequential decision which is also sought. CB seeks, in the event that the adoption order is granted, an order that she should continue to have contact with CH and that the order should contain a condition to that effect in terms of section 28(3). Both of these decisions relate to the adoption of CH. So the provisions of section 14 (2) to (4) apply; as does section 28(2). But the court cannot grant the order unless the first condition in section 31 is met. This must be the starting point in any consideration of the case.

[24]           Section 31(2) provides that the court must be satisfied either that each of the parents consent to the making of the order or that such consent should be dispensed with. The issue of dispensing with consent is not at large for the court. It can only be done on one or more of the grounds set out in section 31(3). In the present case the relevant grounds are sections 31(3)(c) and (d). The ground in section 31(3)(c) only applies if the conditions contained in sections 31(4) and (5) are established. Only section 31(4) is relevant in the present case. Section 31(3)(d) can only apply if section 31(3)(c) is not made out. So, sections 31(c) and 31(d) are mutually exclusive. If consent has been given no issue arises. If it has not been given (and the grounds in section 31(3)(a) and (b) do not apply) then the first question is whether the ground in section 31(3)(c) and section 31(4) applies. If consent is dispensed with then, in terms of section 28(2) and having regard to the matters in section 14(2) to (4), the final question will always be whether it is better for the child that the adoption order be made than not. It is always possible, if unlikely, that, even although consent has been given or dispensed with, that question requires to be answered in the negative and the petition refused.

[25]           The terms of section 31 differ from the corresponding provisions in section 16 the 1978 Act which were as follows;

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

(b) in the case of each parent or guardian of the child the court is satisfied that....

(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2).

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

(a) cannot be found or is incapable of giving agreement;

(b) is withholding his agreement unreasonably;

(c) has persistently failed without reasonable cause to discharge the parental duties in relation to the child;

(d) has abandoned or neglected the child;

(e) has persistently ill-treated the child;

(f) has seriously ill-treated the child (subject to subsection (5));............

(5) Subsection (2)(f) does not apply unless (because of the ill-treatment or for other reasons) the rehabilitation of the child within the household of the parent or guardian is unlikely."

In ANS, DCS v ML the Lord President observed (para 3) that grounds (b) to (f) inclusive were heavily focussed on the conduct of the parent. (I pause to observe that the version of section 16 which is quoted in the Lord President's Opinion appears to be that in force from 1 September 1984 until 31 March 1997 and not that in force from then until the repeal of the section on 27 September 2009. On 1 April 1997 subsections 16(c) to (f) were replaced by subsections 16(c) to (d) in different terms. The reference to parental responsibilities in section 16(2)(c) is more specifically expressed and the references to ill treatment and rehabilitation in sections 16(e) and (f) are in different terms. I do not think, however that this is material.) The important difference, it seems to me, between the terms of the 1978 Act and the 2007 Act is that the former is expressed in the past tense - "has persistently failed", "has seriously ill-treated" - whereas the emphasis in the 2007 Act is on the present and the future - "is....unable satisfactorily to - discharge", "is likely to be unable to continue to do so". It is not necessary to examine exhaustively why the emphasis in the language may have changed but the line of English authority discussed and quoted by the Lord President in ANS, DCS v ML stresses the drastic interference in the family life of both parents and child which adoption involves. For example, in In re C and B (Care Order: Future Harm) [2001] 1FLR 611 at para 43 Hale LJ, discussing the engagement of Article 8 in the context of the removal of contact, says

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end".

[26]           Section 31(4) has three requirements which the petitioner must establish. In the present case there is no dispute that CB has the parental responsibilities and rights specified in section 31(4)(a). The first issue, posed by section 31(4)(b), relates to the present ability of the parent to discharge parental responsibilities. That will rest principally on the present circumstances of the parent. The second, posed by section 31(4)(c), is whether he or she is likely to be able to continue to do so. The behaviour of a parent in the past, whether harmful to the child through positive ill treatment or harmful through neglect, is important. But its relevance, it seems to me, is more in relation to the future ability to discharge parental responsibilities, which is a matter of both fact and judgment, rather that to the present ability to do so which is essentially a matter of fact.

[27]           Under section 16 of the 1978 Act the approach to be adopted in deciding whether or not to dispense with parental consent was set out principally in Lothian Regional Council v A 1992 SLT 858. Whether to dispense with consent should be approached in two stages. First, as a matter of fact, it is necessary to decide if the particular ground founded on has been established. Then the court should consider whether the consent should be dispensed with. It was not suggested that this approach was inappropriate in relation to section 31 and I see no difficulty in applying it in relation to the ground set ground set out in sections 31(3)(c) and 31(4). The first stage is essentially a matter of fact although in assessing what the child's welfare is and whether the parent is able to satisfactorily discharge his or her responsibilities in relation to it, and be likely to continue to do so, regard must be had to the considerations set out in sections 14(2), (3) and (4). The second stage is essentially an exercise of judgment and discretion applying the welfare test set out in sections 14(3) and 28(2) and taking into account all the circumstances of the case including those set out in section 14(4).

[28]           In my opinion the ground in sections 31(3)(c) and 31(4) has to be approached in a broad and practical manner. The discharge of the parental responsibilities required is a "satisfactory" one and not one of perfection. There are different ways of bringing up children. Some may be better than others and there is always considerable subjectivity attached to differing views about that. Inevitably some children are brought up in more favourable circumstances than others. Some are brought up better than others. The two may not always be the same. There is a wide range of care within the broad term "satisfactory". Nor, I think, does the word "satisfactory" necessarily mean "alone" or "unaided". There are few parents who do not rely on the assistance of others; perhaps to a considerable extent by some parents who might be regarded as excellent. That can take the form of friends or family or paid assistance. Some parents live together. Some live alone. And, of course, many parents rely on the help and guidance of the state in the form of local Social Work Departments, whether on a voluntary basis or where a Supervision Requirement is in place. Voluntary agencies may have their part to play. All that is part of the modern background to the care of children and bringing them up. I do not think, for example, that, because a supervision requirement is in place, it necessarily follows that a parent could not be said to be unable satisfactorily to discharge parental responsibilities and be likely to be unable to do so. All will turn on the circumstances of the case

[29]           Section 31(4)(c) has been the subject of comment in a recent decision of Sheriff Principal Young in Aberdeenshire Council v TW and JW, Banff, 2 June 2011, unreported. The facts of the case differ from the present. But at para [14] of his judgment, in relation to the words "likely to continue" the Sheriff Principal said

"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."

[30]           I respectfully agree with that but the matter is, perhaps, more complicated. If a child has been living apart from his or her parent then, inevitably, if that parent is again able to discharge the parental responsibilities and likely to be able to continue to do so, there will require to be a process of rehabilitation in the family home and disengagement from the home where the child has been cared for. Not to make allowance for that would render the first stage of the approach set out in Lothian Regional Council v A in relation to sections 31(4)(b) and (c) largely meaningless and inoperable in many circumstances. Of course, in relation to the second stage of the approach set out in Lothian Regional Council v A, the issue of rehabilitation and its effect on the child might be an important circumstance.

[31]           As I have observed, it is only if the ground in sections 31(3)(c) and 31(4) is not established that the ground in section 31(3)(d) would require consideration. It appears wide in its application and that was part of the criticism of its terms in relation to its compatibility with Article 8 which was discussed in ANS, DCS v ML. Two points arise out of the submissions which I heard. Reference was made to the word "requires" and its imperative nature. And that is referred to by the Lord President in ANS, DCS v ML. He compares section 31(3)(d) with the very similar provision in the corresponding English legislation - section 52(1) of the Adoption and Children Act 200 - which he describes (para 18) as "a straightforward welfare test". He then discusses the guidance on how the word "requires" should be construed given by the Court of Appeal in Re P (Adoption: Parental Consent) [2009] PTSR 150. At para 21 he approves the approach in Re P (Adoption: Parental Consent) that the word "requires" has "the connotation of the imperative, what is demanded rather than what is merely optimal or reasonable or desirable" which the Lord President describes as a "high test". And it was in the context of the nature of that "high test" that the court in ANS, DCS v ML concluded that section 31(3)(d) complied with Article 8 in relation to the rights of biological parents and whether, in adoption, their consent should be dispensed with. At para 23 the Lord President states:

"We reject the submission that section 31(3)(d) is illogical or irrational. For the reasons given by Mr Duncan we are satisfied that circumstances can be figured in which section 31(3)(d) could be satisfied, albeit neither subsections (4) and (5) was met. Given, however, the significance in its context of the word "requires", the instances for the application of section 31(3)(d) may be limited."

[32]           That might suggest that the test imposed by section 31(3)(d) is in some way higher that the welfare test set out in sections 14(3) and 28(2) of the 2009 Act. That was one of the arguments advanced in Re P but it was rejected in the judgment of the court. What was said is as follows:

"126 What is also important to appreciate is the statutory context in which the word "requires" is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption-the making of either a placement order or an adoption order-and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption. A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily "require" that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is "required" is adoption.

127 In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what Mr Geekie called a simple welfare test. The difference, and it is an important, indeed vital, difference, is simply that between section 1 of the 1989 Act and section 1 of the 2002 Act.

128 In the first place, section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, requires a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child's welfare "throughout his life". This emphasises that adoption, unlike other forms of order made under the 1989 Act, is something with lifelong implications. In other words, a judge exercising his powers under section 52(1)(b) has to be satisfied that the child's welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, requires that he or she be adopted. Secondly, and reinforcing this point, it is important to bear in mind the more extensive "welfare checklist" to be found in section 1(4) of the 2002 Act as compared with the "welfare checklist" in section 1(3) of the 1989 Act; in particular, the provisions of section 1(4)(c) -which specifically directs attention to the consequences for the child "throughout his life"-and section 1(4)(f) . This all feeds into the ultimate question under section 52(1)(b) : does the child's welfare throughout his life require adoption as opposed to something short of adoption?"

[33]           I respectfully agree with this interpretation. The "welfare checklists" in the English legislation seem no more than a wider list of matters to which the court must have regard than those set out in section 14(4) of the 2009 Act which, of course, is subject to the need, in terms of section 14(2), to have regard to "all the circumstances of the case". There is no practical difference between the two legislative schemes. The reference to the child's welfare "throughout his life" has been a feature of the welfare test in the Scottish legislation since the 1978 Act (it does not appear to have featured in the corresponding English legislation until the implementation of the 2004 Act). So the test to be applied in relation to the ground in section 31(3)(d) is the same as that which has to be applied at the second stage in relation to the sections 31(1)(c) and 31(4) ground; and also in relation to whether, consent having been dispensed with, the adoption order should be made.

[34]           If I am correct in my interpretation it is difficult to see what role the two stage approach set out in Lothian Regional Council v A has to play in relation to the section 31(3)(d) ground. The artificiality of that approach in relation to the dispensing of consent under the ground of withholding consent unreasonably (section 16(2)(b) of the 1978 Act) was recognised by Lord Hope in Lothian Regional Council v A and is commented on in McNeill and Jack: Adoption of Children in Scotland (4^th Edn) at para 10-20. In her article, "Welfare and the new ground of dispensing with parental consent to adoption - a reply" 2009 SLT (News) 17, Janys M Scott QC writes that "There is no need for a two stage test in relation to dispensation of consent where this rests on s 31(3)(d)". I agree with that and, in applying section 31(3)(d) to the circumstances of the present case, have dealt with the matter as one test and applied it in the same way, and taking into account the same matters, as I would have taken into account in the second stage of the two stage approach which I would have applied in relation to sections 31(1)(c) and 31(4).

[35]           It is also, I would suggest, difficult to envisage circumstances where, if the test to be applied to the second stage of the two stage approach in relation to sections 31(1)(c) and 31(4) were not made out, and the ground not established, the same test in terms of section 31(3)(d), and the ground in section 31(3)(d), would be established.

Discussion

[36]           I have not found this an easy case to work through although, at the end of the day, I have no doubt that the decision which I have reached is that which will best promote the welfare of CH throughout her life. I am sorry that it has taken longer than I would have liked to reach that decision and express it. As I discuss above the issue falls into several successive questions.

(a) Is MH unable satisfactorily to discharge his parental responsibilities and exercise his parental rights in relation to CH and be likely to continue to be unable to continue to do so?

[37]           In one sense the failure by MH to oppose the petition answers this question. He does not appear to wish his parental responsibilities to continue. Nor does he appear to wish to continue to exercise his parental rights. That is simply a reflection of the past. He has never cared for CH. Nor was there any evidence that he would be capable of doing so on his own. While the Reports over the period since the birth of CH speak, to some extent, of CB's abilities to care for CH there is little similar material to suggest that MH could do so. His contact with CH was also patchy and he seemed to have difficulty in relating to her during contact periods. He has a criminal record and is, and has been, a drug user. There is, in my opinion, no doubt that he is unable satisfactorily to discharge his parental responsibilities and exercise his parental rights in relation to CH and that he is likely to continue to be unable to continue to do so.

(b) Should the consent of MH to the adoption of CH be dispensed with?

[38]           This is the second stage of the process described in Lothian Regional Council v A. For all the reasons which I discuss below in relation to CB, though in terms of section 31(3)(d), I conclude that the consent of MH should be dispensed with. But the matter goes further. There is little which MH has done to promote the welfare of CH. There is no evidence that he would do so if his consent were not dispensed with.

(c) Is CB unable satisfactorily to discharge her parental responsibilities and exercise her parental rights in relation to CH and be likely to continue to be unable to continue to do so?

[39]           This is a more difficult question. The parental responsibilities described in section 1(1) of the 1995 Act are wider than simply caring for the child, feeding her and providing her with accommodation. They encompass the safeguarding and promotion of the child's health, welfare and development and providing the child with appropriate direction and guidance. The failure of CB to do so commenced before CH was born. She was reluctant to accept help and guidance when she was pregnant. She was abusing drugs which caused concerns about CH and led directly to the Child Protection Order and subsequent referral and Supervision Requirement. There can be no doubt that, at the time, these steps were entirely justified and in the best interests of CH. But CH was returned to the care of CB. The Reports to the Children's Hearing were positive about the care of CH while she was with CB. That is not to say that there were not concerns. But these related primarily to CB's continued association with MH, her continuing drug use and her failure to engage with the agencies available to assist her (Cameron House) or to direct her involvement with the criminal justice system (the Social Workers supervising her probation). In addition to that, there was a failure to engage with the other agencies available to assist her when she was expecting her second child. The significant concerns about CH's welfare centred round these issues. That was reflected in the Statement of Facts in the referral to the Children's Hearing after the removal of CH in July 2009.

[40]           To a certain extent these concerns were crystallised most sharply in the incident in December 2008 when CH was left in the care of MH's mother but was found alone in the care of MH; and in the placing of CH with MH's mother when CB's baby, L, was taken to Glasgow gravely ill in June 2009 and CB, not unnaturally, wanted to be there with her. It was that incident which led directly to the second Child Protection Order. I was not convinced, reading the written material and listening to the evidence commenting on it, that such an Order would have been obtained, or granted, without information from the police about MH's mother and her unsuitability to care for CH. That came as a surprise to CB. Perhaps not unnaturally, because it was with MH's mother that CH had been placed temporarily in November 2008 when CB and MH had been arrested at the Children's Hearing for failing to appear at court. And, apart from the fact that MH had been allowed to take CH out on her own in December 2008, there seemed to be little concern expressed in the written evidence about the fact that CB had left her with MH's mother. It was at this point that the collective mind of the Department turned towards permanency away from CB and against rehabilitation with her. The significant point is that, until then, the Department had allowed CB to care for CH and there is evidence that they accepted that she was able to do so, notwithstanding the other concerns to which I have referred (cf. Findings in Fact Nos. 27 and 33).

[41]           I appreciate that CH was the subject to the Supervision Requirement. As I have already discussed I do not think that is conclusive of whether a parent is able to discharge parental responsibilities. Otherwise, the test posed in section 31(4)(b) would be, in many cases, impossible to discharge.

[42]           So there is evidence that, in the past, CB was able to discharge her parental responsibilities. What of the present? I have found in fact that CB has ended her association with MH; that she is no longer dependent on drugs (save for her methadone prescription). She has, by and large, attended for contact with CH. She has, within the necessary artificiality of supervised contact arrangements, related well to CH. She has, on various occasions, demonstrated an understanding of the needs and welfare of CH which were adverse to her own arrangements (she agreed to the reduction in contact from seven to five days where the carer chosen by the Department was unable to implement the decision of the Children's Hearing). She has the perception to accept that CH is well cared for by LD and would continue to be so. I had the advantage of hearing her give evidence. I formed the impression that she was serious about wanting the return of CH. I have concluded that, if given the opportunity, she would be able to discharge her parental responsibilities. Or rather, as section 31(4)(b)(i) requires, I was not persuaded by the evidence led by the petitioner, taken against all the evidence in the case, that CB is unable satisfactorily to discharge those responsibilities.

[43]           Is CB likely to continue to be unable to do so? In one sense this part of what is required by section 31(4)(b) pre-supposes that there is an inability to discharge the parental responsibilities. It may truly relate to a situation where a parent is presently unable to do so but where there is evidence which establishes that this is a temporary situation which will not continue. It is part of a cumulative test. So it may not require to be addressed in the present case. Leaving that to one side, I have concluded that it is likely that CB would be likely to continue to discharge her parental responsibilities. The important factors in her past which prevented her from doing so have been resolved. That does not mean that her continued ability is a certainty. But, that is not the test which is one of the balance of probabilities.

[44]           As I have found that CB is able satisfactorily to discharge her parental responsibilities and is likely to continue to be able to do so, it is not necessary or appropriate to consider the second stage of the approach set out in Lothian Regional Council v A. That leads directly to consideration of the ground in section 31(3(d)

(d) Does the welfare of CH otherwise require that the consent of CB should be dispensed with?

[45]           I have already discussed the nature of this test and how I consider it should be approached. It is a question which is as much a matter of judgment as one of fact. All the circumstances of the case are relevant. The issue of CH's welfare throughout her life is paramount. Important matters are the value of a stable family unit to CH's development; and the likely effect on her, throughout her life, of the making of an adoption order. It is also necessary to take into account whether the making of an order would be better for CH than not making an order. CH's present situation, and her understanding of it, is central to her welfare. She has been away from the care of CB since July 2009. Her placement in foster care lasted until September 2010 since when she has been with LD. She was with CB from November 2007 until July 2009. So it is not simply a question of where she has been longest. That is with CB. What is significant about her present placement is that it has been presented to her as her permanent home. The Reports make that clear. There are references to her "new family" and her "forever home". She refers to LD as "mummy". She is aware of that fact that she is to be adopted. She is aware that her middle names are to be changed. She has no expectation that she will return to live with CB. Indeed the opposite is the case. And that has been deliberate on the part of those making decisions about her welfare. Contact with CB has been systematically withdrawn. She now only sees her once a month. These are circumstances in the case. I was quite satisfied on the evidence that I heard that, if the adoption order were refused, there was no intention on the part of the Department to seek rehabilitation with CB. That is a highly significant circumstance in any decision about the future of CH and her welfare. This certainty of purpose has contributed to CH's confusion over contact. It must be difficult for her to understand the purpose of it beyond, and several witnesses referred to this, a form of play. That is another important circumstance in the case.

[46]           Nor it is impossible to leave out of consideration a comparison of the circumstances in which CH now lives and those to which she might return if CB resumed her care. While I have concluded that CB is able to discharge her parental responsibilities, and is likely to continue to do so, there must remain an element of doubt about that. She cannot escape the past entirely. I do not place the same overwhelming emphasis on that which suffuses the attitudes of the Department but they are a circumstance. On the other hand, although nothing can ever be excluded as a possibility, is seems less likely that LD's care of CH would be disturbed in that way.

[47]           CH is now four. She is about to start school. The evidence of the Reports was that it was important for her future throughout her life that there is now certainty for her. I have to conclude that this is most likely with LD. That is another important circumstance.

[48]           For these reasons I conclude that the consent of CB should be dispensed with. It will best promote CH's welfare throughout her life. The alternative is uncertainty - not rehabilitation with CB.

(e) Should the adoption order sought in the petition be granted?

[49]           There are two aspects to this; whether adoption, rather than some other arrangement, is best for CH; and whether, if adoption best serves her welfare, the petitioner has established that she is in a position to safeguard and promote CH's welfare throughout her life and that it would be better for CH that she do so. I have already discussed that there is no realistic prospect of rehabilitation with CB. Adoption offers CH the opportunity of a new home on a permanent basis throughout her childhood; and a stable family unit during that time and from which she can enter adulthood. And I have no doubt from what I heard in evidence, and read in the Reports on LD, that this would continue throughout her life. So I am satisfied that adoption by LD would be better for CH than not making the order sought.

(f) Should the adoption order contain a condition that CB should have contact with CH?

[50]           I see no benefit to CH in this. And I sense that CB accepted that. Her concession in evidence that contact could be every six months seemed to suggest that she understood that frequent contact would be confusing. That would apply with greater force to less frequent contact. The evidence of the social work witnesses was that continuing contact would be disruptive and confusing and would detract from the establishment of the new attachments which CH is making. While section 28(3) of the 2007 Act allows for conditions to be attached to an adoption order that is no more than was possible in the past. I do not think that it alters the general principle reiterated in B v C that "in normal circumstances it is desirable that there should be a complete break from the child's natural family". There was nothing exceptional in the circumstances of the present case to allow or justify departure from that. It may be, as appears to be the position in England, that the law will move in the direction of more post adoption contact and that "open" adoptions will be more frequent. I did not feel that the circumstances of the present case were such that I could depart from the general principle reiterated in B v C.

Postscript

[51]           In The City of Edinburgh, Petitioners, in respect of the Child, L 25 July, Edinburgh, unreported, Sheriff Pyle comments on the problems which the 2007 Act may pose for social workers in reducing contact with parents when a decision has been made that adoption may be the best route to promote the welfare of a child. He suggests, more in the context of permanence orders with authority to adopt and the possibility of post order contact, that the contemplation of such contact may mean that social workers "may have to be more circumspect in deciding if and when to reduce contact before the permanence application is made." I agree with that. It applies equally to situations where direct application is made for an adoption order. And it also applies to those parents who feel, in the best interests of their children, that adoption is not better for them or that post adoption contact would be in their best interests; and it applies to those advising such parents professionally. One odd consequence of the 2007 Act is that although courts are now more likely to have to consider issues of post adoption contact, or contact after a permanence order with authority to adopt, and so make the ultimate decision on that, they have no power to regulate contact when any such application is pending. That remains, in the vast majority of cases, with the Children's Hearing. But, of course, any decision of the Hearing about contact as a condition of a Supervision Requirement is subject to appeal to the Sheriff. Parents who wish to oppose adoption or to seek post adoption contact will require, throughout the time that a child is subject to a Supervision Requirement, to give careful consideration to whether to appeal such decisions if they reduce contact or leave the level of contact to the discretion of social work departments. Such careful consideration may be particularly important if the plan towards adoption or permanence involves the gradual and systematic reduction of contact before any decision is taken by the court about whether either an adoption order or a permanence order should be granted. Often such decisions effectively pre-empt what the court is able to decide. The result of any such appeal, if successful, could affect significantly the ultimate decision of the court when the adoption or permanence application, and any ancillary matter relating to contact, is considered.