SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B2/13/11

INTERLOCUTOR and NOTE   by   SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC   in the cause   ABERDEEN CITY COUNCIL   Petitioners and Appellants   against   X and Y   Respondents

 

 

 

Act: Mrs Kymme Fraser, solicitor, Aberdeen City Council

Alt: Mr Hamish Lindsay, solicitor, Lindsay and Kirk, Aberdeen

 

 

Aberdeen, 27 October 2011

The sheriff principal, having heard the solicitors for the petitioners and the natural mother respectively and there being no appearance at today's diet by or on behalf of the natural father, allows the appeal and recalls the interlocutor of the sheriff dated 22 June 2011; the solicitor for the natural mother having thereafter withdrawn, on the motion of the petitioners

 

(1) makes a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 ("the Act") in relation to the child A ("the child") whose date of birth is ............... 2008 including the mandatory provision, namely vesting in Aberdeen City Council, a local authority incorporated under the Local Government etc (Scotland) Act 1994 and having its principal place of business at the Town House, Broad Street, Aberdeen, AB10 1AQ ("the local authority") for the appropriate period within the meaning of section 81(2) of the Act:

(a) the parental responsibility to provide guidance to the child in a manner appropriate to the child's stage of development; and

(b) the parental right to regulate the child's residence;

 

(2) in terms of section 82 of the Act includes in the permanence order the following ancillary provisions:

(a) that the parental responsibility to safeguard and promote the child's health, development and welfare should be vested for the appropriate period in the local authority;

(b) that the parental responsibility to provide direction to the child in a manner appropriate to the child's stage of development should be vested for the appropriate period in the local authority;

(c) that the parental right to control, direct or guide the child's upbringing in a manner appropriate to his stage of development should be vested for the appropriate period in the local authority;

(d) that the parental responsibility and corresponding parental right to act as the child's legal representative should be vested for the appropriate period in the local authority;

(e) that the parental responsibilities and parental rights in relation to the child held by his parents, X and Y, both residing at ............. Aberdeen, should be extinguished other than in relation to the maintenance of personal relations and direct contact with the child;

(f) that there should be no contact between the child and his parents, X and Y;

 

(3) in terms of sections 80(2)(c) and 83 of the Act grants authority for the child to be adopted;

 

(4) dispenses with the consent of X and Y to the making of an adoption order in relation to the child on the ground that they are unable satisfactorily to discharge their parental responsibilities or to exercise their parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the Children (Scotland Act 1995 and are likely to continue to be unable to do so, all in terms of section 83(3) of the Act;

 

(5) in terms of section 89(2) of the Act orders that the supervision requirement to which the child is currently subject in pursuance of section 70 of the Children (Scotland) Act 1995 should cease to have effect; and

 

(6) finds no expenses due to or by any of the parties in respect of the cause, including the appeal.

 

 

 

 

 

Note

 

[1] In this case the petitioners, Aberdeen City Council, sought a permanence order in relation to the child A to include the mandatory provision, various ancillary provisions and provision granting authority for the child to be adopted. The court was also asked to dispense with the consent of the child's natural mother X and his natural father Y to the making of an adoption order in relation to A on the ground mentioned in section 83(3) of the Children (Scotland) Act 2007 ("the Act ") or alternatively on the ground mentioned in section 83(2)(d) of the Act. An application to the same effect was presented in relation to A's sibling B. There is an age gap of less than one year between these two children, A having been born in 2008 and B in 2009.

 

[2] The two applications were lodged with the sheriff clerk on 16 March 2011. They were accompanied by (i) reports dated 2 March 2011 which had been prepared by a social worker on behalf of the petitioners in accordance with rule 31(2)(b) of the Sheriff Court Adoption Rules 2009 ("the 2009 Rules"), (ii) extracts of the children's respective birth certificates, (iii) copies of the minutes of the petitioners' Adoption and Permanence Panel dated 20 October and 12 November 2010 and the petitioners' Agency Decision Maker's decisions, also dated 12 November 2010, and (iv) copies of reports dated 3 February 2011 which set out the advice of the children's hearing under section 73(13) of the Children (Scotland) Act 1995 in respect of what were then proposed applications under section 80 of the Act in relation to each of A and B.

 

[3] For present purposes it is I think unnecessary to rehearse in any detail the terms of the two reports which had been prepared by the social worker. It is sufficient to say that they related a sadly familiar tale of parental inadequacies in relation to A and B and various other children of whom one or other of X and Y were the parents and presented to the court a compelling case for granting the orders sought by the petitioners in relation to each of A and B.

 

[4] The decision of the Adoption and Permanence Panel in the case of each child had been to recommend that adoption should be pursued for the child as this would best meet his lifelong needs and that to this end an application should be made to the court for a permanence order to include provision granting authority for the child to be adopted. It was also recommended that the two children should be placed together. These recommendations were approved by the Agency Decision Maker.

 

[5] The unanimous advice of the children's hearing had been that the two children should be freed for adoption. The members of the hearing thus appear to have been unfamiliar with the changes in the law introduced by the Act. But it is perfectly clear from what is said in the two advice statements that the hearing supported the plans for adoption of the two children and considered that there were sound reasons for these plans. It is also important to notice that both X and Y attended the hearing and it is recorded that they both disagreed with these plans. So it must have been apparent to the sheriff (who dealt throughout with both cases at first instance) that both X and Y were aware at least by 3 February 2011 of the petitioners' plans for adoption. In fact it became apparent during the appeal hearing that X would have learned of these plans at a meeting which she attended on 14 July 2010 and Y at a meeting which he attended on 26 November 2010 (on the assumption, that is, that X had not already told him about these plans in any event). But the soundness of the sheriff's decisions which are the subject of this appeal must I think be judged by his state of knowledge at the time he made these decisions, and it does not appear that he would have been aware of the attendance of X and Y at these earlier meetings.

 

[6] By interlocutors dated 17 March 2011 the sheriff in each case inter alia appointed Mrs Susan Morrison, solicitor, as curator ad litem and reporting officer, assigned 28 April 2011 as the date of the preliminary hearing and ordained the petitioners to intimate this diet by serving a copy of the petition along with Form 12 to every person who could be found and whose consent to the making of a permanence order was required to be given or dispensed with. He also ordained any person who intended to oppose the petition or seek an order to lodge this with the sheriff clerk at Aberdeen within 21 days after the date of intimation. Form 12 informs the recipient of various matters in relation to the application to which it refers and includes the following:

 

3. IF YOU WISH to oppose the application you must lodge a form of response in Form 15 before the expiry of the period of notice specified therein. A copy of the form is attached.

 

The form ends with the following:

 

YOU MAY BE ENTITLED TO LEGAL AID depending on your financial circumstances and you can get information about legal aid from a solicitor.

YOU MAY ALSO OBTAIN ADVICE FROM ANY CITIZENS ADVICE BUREAU OR OTHER ADVICE AGENCY.

 

[7] Form 15 is the standard form of response. It is in two parts, A and B. Part A has to be completed by the petitioners or their solicitor and Part B by the respondent or his or her solicitor. In Part A various details about the case have to be completed including the date of expiry of the period of notice. The period of notice is not stated explicitly in the 2009 Rules. But it is clear from rule 34 that it is 21 days. This rule provides:

 

34. Any person who has received information of an application for a permanence order under rule 33 and who intends to oppose that application must lodge a form of response in Form 15 not later than 21 days after the date of intimation of the application.

 

[8] I was advised by Mrs Fraser, solicitor, for the petitioners that in obedience to the sheriff's interlocutors intimation of the petitions had been made to both X and Y on 24 March 2011 and that in Part A of the Forms 15 that they had received the date of expiry of the period of notice had been stated as 15 April 2011. I did not understand it to be disputed therefore by Mr Lindsay, solicitor, who appeared for X at the appeal hearing that the forms of response which she and Y had received ought to have been returned to the sheriff clerk by 15 April 2011 at the latest. In the event neither of them did this.

 

[9] On 5 April 2011 a letter dated 4 April 2011 was received by the sheriff clerk from Mrs Morrison. She reported that she had written to X and Y and that the latter had contacted her on behalf of both X and himself. It had transpired that her husband acted for Y. She explained that she was willing to continue in her appointment and that Y had advised that neither he nor X had any objection. But she suggested that in the circumstances the court might prefer to appoint a different curator ad litem and reporting officer. The upshot was that in each case the sheriff by interlocutor dated 20 April 2011 discharged the preliminary hearing which had been assigned for 28 April 2011, recalled Mrs Morrison's appointment and in her place appointed Mr Graham Garden, solicitor, as curator ad litem and reporting officer and assigned 8 June 2011 as a preliminary hearing. He also ordered intimation in the same terms as in his interlocutors dated 17 March 2011.

 

[10] In obedience to these latest interlocutors the petitioners reserved the petitions on X and Y on 27 April 2011. On this occasion the date of expiry of the period of notice was stated in each of the forms of response to be 19 May 2011, and once again by that date no forms of response had been returned to the sheriff clerk by either X or Y.

 

[11] Mr Garden's reports in relation to B and A were received by the sheriff clerk on 31 May and 3 June 2011 respectively. In both reports he recorded that he had written both by first class post and by first class recorded delivery post to X and Y inviting them to contact him to discuss the applications and that neither of them had responded to his letters. In his report in relation to B he enclosed copies of the letters which he had sent to X and Y, the recorded delivery slips and a Track and Trace report. This indicated that the letter which he had sent to Y had been delivered on 7 May 2011. There is no Track and Trace report in relation to the letter he sent to X. But there is nothing to indicate that the letter (which was sent to the same address as the letter to Y) was not received by her and it was not suggested at the appeal hearing that she had not received it.

 

[12] In his capacity as curator ad litem Mr Garden reported in the case of A inter alia as follows:

 

(b) As far as can be ascertained, the facts and circumstances stated in the petition and the reports lodged under rule 31(2)(b) are correct.

(d) I consider that the granting of the order is likely to safeguard A's development throughout his childhood. Rehabilitation of A with either of his parents has been fully explored. There are no wider family members who may be willing or able to be considered as possible carers for A. As these options are not available, one must look at the other options, which are currently available. Long-term foster care, whilst protecting A, would not provide the security and permanency that the child requires. Only by the current order sought being granted can an application for adoption be pursued, and hopefully granted, resulting in this child achieving the regularity and security in his life that he clearly craves and needs.

(g) The making of the order will potentially provide A with certainty and security throughout his childhood and should allow permanent arrangements to be made for him, which can only be to his benefit.

(i) In all the circumstances I consider that it would be better for A that the court makes the order than that it should not.

(l) I consider in all the circumstances that it would be better for A if the court were to grant authority for him to be adopted than if it were not to grant such authority.

 

As was to be expected since the subject of it was B, the details of Mr Garden's report in relation to B differed a little from those in the report in relation to A. But the five sub-paragraphs which I have quoted above were repeated verbatim in the report in relation to B apart from the change of name.

 

[13] At the preliminary hearing on 8 June 2011 the petitioners were represented by Mrs Fraser. X appeared too. She was unrepresented, but she was accompanied by Y's sister. Y himself did not appear. No forms of response had been lodged by either X or Y in the case of either child. At the appeal hearing Mrs Fraser explained that she had drawn the attention of the sheriff to the fact that no forms had been lodged. He had noted this and had told X to obtain the services of a solicitor. He had also asked her (Mrs Fraser) to assist X in the completion of the form of response which she had with her in court that day. At the appeal hearing Mrs Fraser said that she had been uncomfortable about doing this, but that she had advised X where to put what she wanted to say in the various parts of the form and then to take it to the sheriff clerk's office there and then. X's reaction had been to say that she would not do that and that instead she would take the form home so that Y could complete his form in the same way and then all the forms would be returned to the sheriff clerk's office. The upshot of the hearing was that in each case the sheriff pronounced an interlocutor in the following terms:

 

The sheriff, having heard from the solicitor for the petitioner and the natural mother and paternal aunt personally, continues the hearing until 22nd June (sic) at 9:30 am for the natural mother to lodge an opposition and seek legal advice.

 

[14] At the continued hearing on 22 June 2011 Mrs Fraser again appeared for the petitioners in each case. Mr Lindsay's partner, Mr Anderson, solicitor, appeared for X and Y. Initially the agents appeared before the sheriff in chambers while X and Y remained downstairs in the atrium of the court building. Despite the advice which had been given to X on 8 June 2011, forms of response had still not been lodged in either case. At the appeal hearing Mrs Fraser explained that she had pointed out this out to the sheriff and had moved him to grant the permanence orders sought by the petitioners with authority to adopt. The sheriff had indicated that he was inclined to do this, and at that point Mr Anderson had asked him to see X and Y and explain his decision to them. A short delay had ensued while a court had been set up in the court 6 jury room. When the proceedings had resumed there Mr Anderson had produced one copy of Part B of Form 15 signed by X and a second copy of Part B signed by Y. She (Mrs Fraser) had objected to these but the sheriff had indicated that he would accept them as opposition to the applications and had proceeded to assign dates for a proof.

 

[15] This account of events was not challenged at the appeal hearing by Mr Lindsay except in one respect, namely that he did not accept that the sheriff had actually made a decision in either case to grant the petition before the hearing had reconvened in the court 6 jury room.

 

[16] The two forms of response which were produced are now in the process in A's case. Both documents consist of one sheet of paper only headed Part B - and this despite the fact immediately below this heading there appear in heavy type the words:

 

This section to be completed by the Respondent or Respondent's solicitor and both parts of the form to be returned to the Sheriff Clerk at the above Sheriff Court on or before the date of expiry of the period of notice referred to in Part A above.

 

There is no sign of a Part A so it is impossible to identify the child to which either form relates. In the one case the form has X's name and address inserted and it has been signed by her. In the section in which the respondent is asked to state briefly the reasons why the court should not make the permanence order (or provision granting authority for the child to be adopted) the following words have been written:

 

It is not in the best interests of the children for a permanence order to be granted.

 

In the other case the form has the name and address of Y inserted and it has been signed by him. The stated reason for opposing the application is in identical terms to that stated by X.

 

[17] The upshot of the hearing on 22 June 2011 was that the sheriff in each case pronounced an interlocutor in the following terms:

 

The sheriff, having heard from the solicitor for the petitioners and the solicitor for the natural mother and natural father, allows the forms of response to be lodged on behalf of the natural mother and natural father; Allows parties, if so advised, to lodge answers within 21 days of today's date, thereafter, assigns 6 September 2011 at 10 am (reserving 12 September 2011) within the Sheriff Court House, Castle Street, Aberdeen, as an evidential hearing; assigns 15 August 2011 at 9:30 am as an intermediate proof diet; appoints parties to lodge any other documents at the aforementioned evidential hearing diet.

 

[18] On 5 July 2011 notes of appeal were lodged on behalf of the petitioners against these two interlocutors. In short it was said that it had been incompetent for the sheriff to have allowed the forms of response to be received since by then he had already made his decision to grant the permanence orders, and further that in allowing these forms of response to be lodged as he had the sheriff had exercised his discretion in a wholly unreasonable manner.

 

[19] In response to the notes of appeal the sheriff wrote a note in each case in the following terms (I have corrected some obvious typing errors):

 

At the hearing on 8 June 2011, the natural mother appeared with her aunt. She was more articulate than the natural mother and I permitted her to speak on behalf of the natural mother. I made it clear to both that as no opposition had been lodged, I could have granted the order sought. It was also made clear what form that opposition could take and the solicitor for the local authority agreed to assist the natural mother/aunt, if that was requested. The matter was continued to 22 June for opposition to be lodged and I was somewhat surprised that it had not been lodged by that date. On that occasion, Mr Anderson appeared with the natural mother and father and I explained the possible consequences of failure to lodge opposition. At that point, Mr Anderson consulted with the natural mother and the natural father and produced a skeletal form of opposition by both.

 

I exercised my discretion to allow the opposition albeit late, but I accept the terms of rule 16(1) and that the opposition ought to have been lodged by 8 June and a fortiori prior to, rather than at the hearing on 22 June.

 

(In passing I note that the reference here to rule 16(1) evidently ought to have been to rule 34 since these are applications for permanence orders rather than adoption orders).

 

[20] As already indicated, at the appeal hearing Mrs Fraser appeared on behalf of the petitioners and Mr Lindsay on behalf of X. There was no appearance by or on behalf of Y. Mr Lindsay confirmed that Y was aware of the hearing that day and that he (Mr Lindsay) would not be appearing for him. He explained that Y's application for legal aid for the purposes of the appeal had been refused.

 

[21] Opening the appeal, Mrs Fraser began by outlining the history of the applications. She then submitted in short that it had not been competent for X and Y to have tendered the forms of response as they had on 22 June 2011, the sheriff having by then made his decision to grant the applications, and further that he had exercised his discretion unreasonably in allowing them to be received and in ordering further procedure including the lodging of answers and the fixing of a diet of proof. She drew attention in particular to the opportunities which X and Y had had to lodge the forms of response timeously and the deficiencies in these forms, not the least of which was the inadequate statement of the reasons for opposing the applications. In all the circumstances she submitted that the appeals should be allowed and the interlocutors of the sheriff dated 22 June 2011 recalled. She indicated that, if I were with her on this, she would then wish to address me on the merits of the applications.

 

[22] In response, Mr Lindsay stated that the situation had been bedevilled by a lack of legal aid. He explained that he had first met X on 8 June 2011 and that he had sent her legal aid forms the following day and also a mandate seeking the release of files from the previous agents. The latter had subsequently returned the mandate saying that they had no record of the client. So he had not received any papers in regard to previous matters. He reminded me that the current applications had very serious implications for both X and Y and the children and he submitted that I should take into account the very severe penalties that would follow for X and Y if the orders sought by the petitioners were to be granted. He said that the sheriff had had an opportunity (on 22 June 2011, as I understood him) to speak to both X and Y and had no doubt formed an impression of their ability to complete the forms of response. In all the circumstances he submitted that the sheriff had exercised his discretion reasonably in accordance with the spirit of the legislation in regard to permanence orders, and after speaking to X and Y, and that I should therefore not interfere with the decisions which he had made on 22 June 2011.

 

[23] I did not consider it necessary to reach a concluded view on the issue of competency which had been raised by Mrs Fraser. For I had little difficulty in any event in deciding that her submissions to the effect that the sheriff had erred in the exercise of his discretion in allowing the forms of response to be lodged late should be preferred. I have set out in paragraph [7] above the terms of rule 34, and it is plain in this case that, if they wished to oppose the applications, each of X and Y ought to have lodged a separate form of response in respect of each child (making four in all), if not by 15 April 2011, certainly by 19 May 2011. This they did not do, and no reason, let alone any satisfactory reason, was advanced to explain this failure. And even when they had the opportunity following the hearing on 8 June 2011 to lodge forms of response, they still failed to do so and it was only on 22 June 2011, after the sheriff had been invited to grant the applications and had indicated that he was inclined to do so, that two (rather than the required four) forms of response were produced, both of them incomplete. In terms of rule 4(2) the sheriff had a discretion to relieve X and Y from the consequences of their failure to comply with any provision in the 2009 Rules which was shown to be due to mistake, oversight or other excusable cause, on such conditions as he thought it. But he had to exercise that discretion reasonably in accordance with the rules and after taking into account all the relevant considerations.

 

[24] The power of an appeal court to intervene where a judge of first instance has made a decision in the exercise of a discretion is conveniently summarised in Macphail's Sheriff Court Practice (3^rd Edn) at paragraph 18.111 where it is said:

 

The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all; or that in exercising it he misdirected himself in law; or misunderstood or misused the evidence or the material facts before him; or took into account an irrelevant consideration; or failed to take into account some relevant consideration; or if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include: "completely" or "plainly" wrong; "wholly unwarranted"; "manifestly inequitable"; "unreasonable"; and "unjudicial".

 

[25] So far as I was able to judge from what little the sheriff had said in his notes, when he made his decision on 22 June 2011 to allow the forms of response by X and Y to be received he did not have regard to the terms of rule 34. Nor did he consider whether the failure of X and Y to comply with this rule had been shown to be due to mistake, oversight or other excusable cause. Nor does it appear that he had regard to a number of important considerations in the case including the history of the matter as I have outlined it above, the fact that the reports which had been produced by the petitioners had presented compelling cases in support of the orders sought by them and the fact that, in addition to their technical deficiencies, the two forms of response which had been submitted contained no meaningful indication of why the court should not grant these orders beyond the bald and uninformative assertion in each case that it was not in the best interests of the children for a permanence order to be granted. Moreover, and most significantly, there was nothing in his notes to indicate that the sheriff had given any consideration at all to the welfare of A and B and the need to avoid any further unnecessary delay in the making of decisions in regard to their future care. In short it appeared to me in light of what he had said in his notes that the sheriff's decision to allow the two forms of response to be received and to fix a proof in each case had been plainly wrong in the circumstances with the result that I could, and should, intervene and substitute my own decision on the matter for that of the sheriff. I was of course aware of the serious consequences for X and Y of proceeding to dispose of the applications as if no forms of response had been received. But they had known at least since 3 February 2011 of the petitioners' plans for the adoption of A and B, and I did not consider that they had come anywhere near demonstrating that their failures either to comply with the time limit in rule 34 or to complete the forms of response adequately when they did eventually produce these had been shown to be due to such a mistake, oversight or other excusable cause as would justify relieving them from the consequences of these failures. In all the circumstances therefore I concluded that I should recall the sheriff's interlocutors dated 22 June 2011 and proceed to dispose of the applications there and then as if no forms of response had been lodged in accordance with rule 35(1)(a).

 

[26] After I had indicated in court that this was how I intended to proceed, Mr Lindsay understandably withdrew. I was then addressed by Mrs Fraser on the merits of the applications. For present purposes I think that it is unnecessary to rehearse here what she said. Suffice it to say that I was quite satisfied that the orders sought by the petitioners should be granted and I granted decree in each case accordingly.

 

[27] For the sake of completeness I should perhaps mention that in pursuance of the sheriff's interlocutors dated 22 June 2011 answers were in fact lodged on behalf of X and Y on 8 July 2011. But they did not comply with rule 35(4) in as much as they were in numbered paragraphs corresponding to the numbered paragraphs in the original applications rather than the numbered paragraphs of the reports which had been produced in pursuance of rule 31(2)(b). Besides what little they did say, even if true, scarcely afforded any sort of persuasive response to the original applications, supported as these were by the wealth of material to which I have referred above.