Z (Adoption: Scottish Child Placed in England: Convention Compliance), Re [2012] EWHC 2404 (Fam)

This judgment was handed down in private on 30 August 2012. It consists of 65 paragraphs and has been signed and dated by the judge. The judge gives leave for it to be reported in this anonymised form as Re Z (Adoption: Scottish Child Placed in England: Convention Compliance).Case No FD 123/11[2012] EWHC 2404 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/08/2012
Before
MR JUSTICE MOSTYN
Between
The ApplicantApplicantThe mother1 st RespondentThe father2 nd RespondentThe child3 rd Respondent
Mr Malcolm Chisholm (instructed by McMillan Williams Solicitors) for ApplicantMs Neelim Sultan (instructed by Wainwright & Cummins Solicitors) for 1 st RespondentThe 2 nd Respondent in Person for in personMs Sharon Sawyerr (instructed by Osbornes Solicitors) for 3 rd RespondentMr Steven Kovats QC (instructed by the office of the Advocate General) for Lord Advocate (as Intervenor)Hearing Hearing dates: 18, 19, 20, 22 June & 25, 26 July 2012
JudgmentJudgment (Anonymised Version)Mr Justice Mostyn :
[1]This is my judgment on the application by the Applicant (“A”) for an adoption order in respect of a child Z who was born on 27 May 2006, and who is therefore 6 years of age.[2]The application has a traditional feel about it since an adoption application in circumstances like these will nowadays usually, but not invariably, have been preceded by a placement order pursuant to s21 Adoption and Children Act 2002 (“ACA 2002”). In turn, the placement order will almost invariably have been preceded by a full care order. The placement order was the successor to the freeing order which originated in s14 Children Act 1975 and which was replaced by s18 Adoption Act 1976. Prior to this innovation confidential adoption applications were dealt with in the way I have dealt with this case with the applicant participating remotely from the Mechanical Recording Department.[3]Where an adoption application is made following a placement order the natural parents may not oppose the application without the court’s leave (s47(5) ACA 2002), and leave may not be granted unless there has been a change in circumstances since the making of the placement order (s47(7)). Authority has held that this is a stringent test. Experience shows that leave is rarely granted and the great majority of adoption applications made following a placement order are heard in the absence of the natural parents by an abbreviated process.[4]The reason this application is being heard in the old way with full participation and opposition from the parents is that Z was placed with A on 20 April 2011 following a decision of a Children’s Hearing for the City of Glasgow made on 28 March 2011. That decision was preceded and succeeded by a number of other rulings both of the Children’s Hearing and the Glasgow Sheriff Court.[5]M, who is (or rather was until half-way through her final submissions, as I shall later explain) represented by Miss Sultan, and F, who is self-represented, resolutely oppose the application relying principally, but not exclusively, on an argument that the placing of Z with A was not lawful in the sense that the whole legal process in Scotland violated their rights under Articles 6 and 8 of the European Convention on Human Rights, as incorporated into the law of all the constituent parts of the United Kingdom by the Human Rights Act 1998.[6]In her position statement Ms Sultan stated:
“There have been fundamental breaches of the M’s Article 6 and 8 Convention rights in the sequence of events leading to the placement of the child with the Applicants on 20.4.11”
And, among a number of other complaints, she states:
“There has not been a recognisable ‘trial’ of the issues between the M and the LA culminating in a determination by a court of competent standing and on the basis of evidence obtained and called on behalf of all parties including the M, that the M should be excluded as a carer for Z”
And:
“It is submitted that the weight of the evidence tends to suggest that the ‘placement for adoption’ was not lawful and not Convention compliant”
[7]On 26 October 2011 District

Judge MacGregor ordered that:

“The parties shall have permission to instruct a suitably qualified expert to advise the Court as to the validity of the child's placement by the Local Authority with the Applicant on 20th April 2011, and any other relevant matters concerning the actions of the Local Authority and the proceedings in Scotland insofar as they have any impact on these proceedings.”
[8]In consequence, I have received three very full reports from Miss Claire McFadden. She is a solicitor supremely well qualified in Scottish adoption law. I heard her give oral evidence over a full day. When the case started on 18 June 2012 I was concerned at the prospect of being asked to pronounce on the Convention compliance of Scottish legal processes in this field, and on 22 June, when the case was adjourned part-heard, I invited the Lord Advocate to intervene to make submissions either in writing or orally through counsel. He took up the invitation and instructed Mr Steven Kovats QC who supplied a very clear skeleton argument and made concise submissions when the case resumed on 25 July 2012. I am indebted to both Miss McFadden and Mr Kovats QC for explaining so patiently to me the features of the Scottish system.

Child protection law in Scotland

[9]There are both marked differences (as well as marked similarities) between English-Welsh and Scots law in this field, both substantively and procedurally.[10]The law in Scotland is governed by the Children (Scotland) Act 1995 (a Westminster statute) and the Adoption and Children (Scotland) Act 2007 (an Act of the Scottish Parliament). There is a further Act of the Scottish Parliament which is relevant namely the Children’s Hearings (Scotland) Act 2011, but this will not take effect until 2013. It is noteworthy (but not relevant to the decision I have to make) that in the recent case of ANS v ML [2012] UKSC 30 the Supreme Court held that s31(3)(d) of the 2007 Act was compliant with the Convention and was thus within the legislative competence of the Scottish Parliament. s31(3)(d) is the counterpart of, and is almost identical to, s52(1)(b) ACA 2002.[11]A key feature of the Scottish system is the well-known Children’s Hearing, the formation of which is provided for by s39 of the 1995 Act. The genesis of the Children’s Hearing is the Report of the Kilbrandon Committee in 1964 the proposals within which were enacted, with some modifications, in the Social Work (Scotland) Act 1968. With some important, but not fundamental, changes the scheme was re-enacted in Part II of the 1995 Act. The defining characteristic of the system is the dichotomy between the role of the Court and the role of the Children’s Hearing: this is its “genius”, in the words of Lord President Hope (as he then was) in Sloan v B 1991 SLT 530 at 548E.[12]The members of the Children’s Hearing are lay persons, but they are advised by the Reporter (who may or may not be legally qualified). The Reporter has a dual role: in addition to giving advice he or she formulates the threshold grounds which must be established before the Sheriff before the case can be referred to the Children’s Hearing (see para 15 below), and he or she is the Respondent to any appeal from a decision of a Children’s Hearing to the Sheriff. In contrast to the position in England and Wales the Local Authority is not a party to any such appeal. One of the objects of the 2011 Act is to separate these roles of the Reporter.[13]In Principal Reporter v K & Ors (Scotland) [2010] UKSC 56 Lord Hope and Lady Hale in their joint judgment (for the Court) recorded a submission at para 45 that Children’s Hearings “are meant to be informal round-table discussions”, but, as their reasoning shows, they are much more than that. In her first report at para 2.1 Miss McFadden explained that:
“The Children's Hearing is a statutory and quasi-judicial body, independent of the local authority, responsible for safeguarding the interests of children who are subject to the intervention of the local authority social work department.”
[14]True, the hearing is informal; there is no oral evidence let alone cross-examination; and legal aid is rarely available for representation (although there is nothing to stop a lawyer appearing on a privately funded basis or pro bono). But it is a hearing; the members make a decision; and the decision can be appealed to the Sheriff under s51 of the 1995 Act on the familiar grounds of error of law (including Convention law), procedural irregularity, or plain error in the exercise of discretion. And the decisions that are taken may be very far reaching. In Principal Reporter v K at para 40 the Court stated:
“Next, it must be shown that a public authority has interfered with the right to respect for this family life. This too is not in dispute. Any court order which regulates or restricts the "mutual enjoyment of each other's company" which "constitutes a fundamental element of family life" will amount to an interference: see, for example, Johansen v Norway (1997) 23 EHRR 33, para 52; L v Finland, above, para 101. The decision of a children's hearing to impose a supervision requirement empowering a public authority to intervene in the child's life will constitute an interference with the family life of the child and the parent with whom she lives and is likely also to interfere with the family life of the child and her other parent. Manifestly an order that they were not to have contact with one another did so.”
[15]In order for a public law case to be referred to a Children’s Hearing at least one threshold ground must be established before (i.e. found proved by) the Sheriff. The list of threshold grounds is set out in s52(2) of the 1995 Act and include sub-subsection (c) which provides that “the child is likely(i) to suffer unnecessarily; or(ii) be impaired seriously in his health or development, due to a lack of parental care”, which is, of course, very similar to the threshold test in s31(2) Children Act 1989.[16]Once a case has been referred, the Children’s Hearing may make a “supervision requirement” under s70(1) where they are satisfied that compulsory measures of supervision are necessary. By s70(3) and (5) a supervision requirement may require the child(a) to reside at any place or places specified in the requirement; and(b) to comply with any condition contained in the requirement, which condition may include (i) a requirement that the child submit to any medical or other examination or treatment, or (ii) a provision regulating the contact with the child of any specified person or class of persons. Thus, as happened here, a Children’s Hearing is empowered to direct, pursuant to an adoptive plan of the Local Authority, that a child live in England with the prospective adopter and have no direct contact with his or her natural parents. In the proceedings the Hearing may appoint a Safeguarder to represent the child’s interests.[17]A feature of the Children’s Hearing system, which is not mirrored in England and Wales, is that no earlier than three months after the original decision, the child or a natural parent can insist on a review of the supervision requirement (see s73(6)). On the review, pursuant to s73(9), the hearing can adjourn to another occasion for further investigation; or terminate the requirement; or continue the requirement with or without modification. The requirement must in any event be reviewed annually, and also if the Local Authority believes that a change of circumstances has taken place.[18]A further feature is that pursuant to s73(13) the Children’s Hearing is required to provide (once only) advice in a report to the Court where an adoption application has been or is about to be made. As will be seen, that happened in this case. If the advice does not support the decision of the adoption agency to seek adoption then by Reg 23 of the Adoption Agencies (Scotland) Regulations 2009 (No. 154) the agency must within 28 days of notification of the advice review its decision, and if it adheres to its original view it must within 28 days of the date of the Children’s Hearing seek a permanence order (see para 21 below). But this obligation does not apply if an application for an adoption order has been made. As will be seen, there was a technical breach of this obligation because the adoption application (made in England, and which is before me) was made two months after the advice from the Children’s Hearing.[19]Miss McFadden explained to me that in the threshold proof phase contested primary facts will be fully heard on oral evidence by the Sheriff. Equally, there is a process whereby there can be a referral up to the Sheriff of an issue of contested fact that arises in a Children’s Hearing. Similarly, on an appeal to the Sheriff under s51, the Sheriff may, pursuant to s51(3), hear evidence from, or on behalf of, the parties in relation to the decision; and, may(a) examine the Principal Reporter; or(b) examine the authors or compilers of any reports or statements; or(c) call for any further report which he considers may assist him in deciding the appeal. In proceedings before the Sheriff legal aid will, generally speaking, be made available.[20]Miss McFadden explained to me that it is the duty on the Local Authority at all times to maintain ongoing assessments of the capability of the natural parents not only for the Children’s Hearing but also, in parallel, for the internal LACC reviews, in which the parents can (up to a point) participate. For these purposes there will be various reports prepared. If a long term placement is proposed, with a view to adoption, then it is the function of the Hearing to consider the care plan, although there is no corresponding provision to s31A Children Act 1989. There is no specific power for the hearing to make a formal declaration approving the care plan although that is the practical effect of making a supervision requirement with conditions which allow the care plan to be implemented. It is lawful, and unsurprising, that the placement may be in England, Wales or Northern Ireland – see s26(2)(a) of the 1995 Act.[21]The alternative route by which a child may be placed with foster-carers is under Part 2 of the 2007 Act by means of a Permanence Order. This is an order which extinguishes parental rights and responsibilities and vests them in the local authority. This order has many of the characteristics of a final care order under s31(1) Children Act 1989. Miss McFadden explained to me that this Order (rather than a supervision requirement with conditions) is more often sought where the case involves an older child where long term fostering, but not adoption, is the plan. An application for such an order would be sought in either the Court of Session or a Sheriff’s Court, and would be heard formally on sworn oral evidence.[22]Finally, it is to be noted that the adoption application before me could equally have been made in Scotland to the Court of Session (see s118(3) of the 2007 Act). Had it been, then there would have been a full formal evidential hearing, just as I have conducted such a hearing. It has been suggested that there would have been more expert evidence as to parental capacity by way of, perhaps, psychological and medical evidence, than is before me, but that was mere assertion on behalf of M, and was not accepted by Miss McFadden. It would all depend.[23]I have referred above to the common route for achieving a long term placement as part of an adoption plan by the making of a supervision requirement with conditions by the Children’s Hearing. This procedure pre-dates the Human Rights Act 1998. I have been shown no reported case from Scotland where it has been argued (let alone found) that the procedure of the Children’s Hearing in making such decisions was non-compliant with Articles 6 and 8 because of their informal nature and because the evidence is perhaps less full and less stringently tested than would be the case south of the border. Miss McFadden informed me that she was aware of unreported cases where this argument had been raised, invariably unsuccessfully. The Human Rights Act 1998 challenge in Principal Reporter v K was to one specific aspect to the Children’s Hearing procedure namely the barring of the father, who was not married to the mother and who did not have parental responsibility, from the Hearing. That challenge was successful and the defect is cured by the terms of the 2011 Act. Otherwise there is no suggestion in the joint judgment of Lord Hope and Lady Hale that the nature of the Children’s Hearing is intrinsically non-complaint with Articles 6 and 8 when making serious long-term decisions. Equally, Miss McFadden was not aware of concerns raised by MSPs during the passage of the 2011 Act that the Children’s Hearing system was fundamentally defective in Convention terms.[24]I have little doubt that had this application been launched in the Court of Session the arguments with which I have been presented would have received short shrift indeed.

The facts in this case

[25]M and F met in about July 2005. They never married, and separated shortly after Z’s birth on 27 May 2006.[26]M is British and of dual ethnicity. She has five further children. LK, aged 20; OK aged 17, who is in foster care; RS aged 13, and his full brother SS aged 11, who live with their father; and MP, aged 4 who was placed with adopters in England and adopted by virtue of an order of the Falkirk Sheriff Court. I have been told that M has appealed that decision to the Strasbourg Court. In 2007 M was convicted of an offence of harbouring or knowingly preventing OK from returning to her foster carers contrary to s83(d) of the 1995 Act. As I have mentioned above M was represented by Ms Sultan but withdrew her instructions half-way through Ms Sultan’s closing speech to me. In these unusual circumstances I allowed M to make a final address to me, while Ms Sultan remained in court to assist her.[27]F is from sub-Saharan Africa and is here as a failed asylum seeker. According to the UKBA he has no valid leave to be here, no right to work here, and no recourse to public funds (which is presumably why he was not granted legal aid to contest these proceedings). He has served a term of imprisonment in HMP Barlinnie for fraud. He has four other children, two of whom are of unknown age and who live in his country of origin, and two (SKA aged 2 and GKA aged 1) as a result of the formation by him of a relationship with and marriage to a woman from his home country in Scotland. When the case resumed on 25 July F did not appear. I was told that he claimed that he was not offered travel and accommodation expenses by the Local Authority. I was shown an email which demonstrated quite clearly that he had been offered £230 for these purposes (just as he had been offered similar sums for all previous hearings) but I was told nonetheless by Ms Sultan that F denied the veracity of this. I do not accept this. He did not communicate with the court to seek an adjournment and the case proceeded to its conclusion in his absence.[28]Z is the only child of M and F. She was removed from M’s care in Glasgow on 12 September 2006 at the age of four months under a Child Protection Order. Two days later M presented herself to the Social Services Department in Huddersfield claiming destitution.[29]On 11 January 2007 the following threshold grounds (known in Scotland as ‘grounds of referral’) were proved at the Glasgow Sheriff Court: i) M failed to accept medical advice that Z was at very high risk of major haemoglobinopathy and did not allow Z to be screened; ii) M failed to agree to Z receiving her primary immunisations; iii) M allowed herself to be evicted from her property in circumstances where she was unable to recover clothing and equipment for the proper care of Z; and left the home without making proper arrangements for Z’s care, by delegating Z’s care to her half-siblings LK and OK: iv) M’s failure to make proper arrangements caused Z distress and suffering and exposed her to risk of harm. Although M had been represented by a solicitor at all the preparatory hearings, including those which fixed the final proof hearing, she did not attend that final hearing. She stated in evidence that she knew nothing about it, which was obviously untrue. Thus it appears that the grounds were not proved after a contested hearing. Ms Sultan sought to argue that because there was no contest the findings should in some way be disregarded by me, but I pointed out that this would violate the principle of res judicata. It is noteworthy that M did not at any stage seek a rehearing or to appeal the findings.[30]Z was placed from the outset with a foster carer called JR and remained with her until placed with A on 20 April 2011.[31]On 15 February 2007 the Children’s Hearing made a supervision requirement with conditions that Z reside with JR and that she should have no contact with M (but should have contact with her siblings). M has not had contact with Z since 22 November 2006, effectively for her entire life. There have been many subsequent Children’s Hearings. Until very recently (see para 45 below) M has not sought to overturn the no-contact supervision requirement and her engagement with the legal process has been minimal, as has been her participation in the planning by the Local Authority. Reference may be made to pages 31 – 33 of the Annex A report where the details are set out.[32]In about November 2007 F asked the Local Authority to assess him as a long-term carer. In about September 2008 F had supervised contact with Z on eleven occasions. The evidence shows that these occasions were distressing and caused fear to Z. In October 2008 the assessment was completed. It was adverse to F. On 12 October 2008 a Children’s Hearing made a supervision requirement with a condition of no contact to F.[33]On 19 May 2009 the Local Authority held a permanence review and decided that Z should be placed for adoption.[34]In August 2010 F requested a Children’s Hearing, seeking contact to Z. That took place on 17 November and decided that while the condition of no contact with M would be maintained F and his new wife would be allowed weekly supervised contact. This decision was contrary to the written recommendation of the Safeguarder. The contact never took place as Z displayed too much distress at the prospect.[35]On 7 March 2011 the Local Authority Adoption panel met and recommended the placement of Z with A with a view to adoption. A had been approved for adoption in July 2010. A lives in London.[36]On 24 March 2011 the Local Authority (as adoption agency) wrote to both M and F. These were formal letters written pursuant to the terms of the Adoption Agencies (Scotland) Regulations 2009. By Reg 16 the adoption agency must, within 7 days of making the decision, provide each parent or guardian of the child with(a) a memorandum in the form set out in Schedule 2;(b) a certificate in the form set out in Schedule 3; and(c) a certificate in the form set out in Schedule 4. Schedule 4 is the document in which the parent either gives or withholds consent. It is curiously drafted. Miss McFadden says it contains an error as it is identical terms to Schedule 7, which relates to applications for Permanence Orders. Schedule 4 informs a parent withholding consent that if the adoption agency wishes to continue with the plan for adoption then it must make an application for a Permanence Order, which is in fact wrong even if the adoption were to proceed in Scotland, as the law permits an application to proceed without a permanence order by direct petition, and doubly wrong if the child has been placed in England, where we do not have Permanence Orders. It does seem that the information in Schedules 2 and 4 is deficient inasmuch as it only contemplates an adoption in Scotland alone rather than in another part of the country.[37]On 28 March 2011 the Children’s Hearing authorised the placement of Z with A in England and continued the no-contact requirement in respect of both M and F. On 20 April 2011 Z was placed with A. A had been approved as an adopter by her (English) Local Authority. Meanwhile M appealed the decision of 28 March 2011. While I do not know the date of the Notice of Appeal it must have been before the placement of Z with A. But M sought no stay on the placement. On 24 May 2011 the Reporter wrote to the Sheriff advising him of her view that the panel failed to provide adequate justification for their decision. Since the Reporter is the only Respondent to the appeal it was thus conceded that the appeal should be allowed, and on 3 June 2011 Sheriff Baird, as a formality, duly allowed the appeal, and directed the Hearing to reconsider its decision. But, as Miss McFadden pointed out, the Sheriff was not asked by M, nor did he order, that Z be returned to Scotland to live with JR.[38]On 22 June 2011 the Children’s Hearing reconvened. It is not known if the matter remitted by Sheriff Baird was before it on that occasion as the only record that I have is of advice given under s73(13) of the 1995 Act (see para 18 above). There is no record of a reiteration of a supervision requirement under s73(9)(e). Be that as it may the Hearing advised that it unanimously disagreed with the plan that Z should be adopted as Z’s views had never been sought and the parents now asserted that they were fit to care for her and wished parenting assessments to be undertaken. The Hearing directed that a Safeguarder’s report be prepared “due to the lack of information and assessment about either parent’s current circumstances”. Miss McFadden pointed out to me that the Hearing did not direct that Z be removed from A and returned to JR in Scotland.[39]In August 2011 the Safeguarder, Gino Satti, produced a thorough report. He interviewed both parents. He spoke with A. Given that Z was merely 5 he did not judge it appropriate to meet her but relied on a report from and a conversation with Heather Wright, the Children’s Welfare Officer. He met M. He observed that during their meeting M did not express any thoughts about the needs of a five year old or how she would cope with the day-to-day routine of having a five year old in her life. He made an appointment to meet F but F failed to attend. His conclusion was clear:
“A Safeguarder is the independent voice of a young person/child within the Children's Hearing System and provides information that can be considered by panel members so that they may decide what is in the best interest of a young person at this moment in time. I trust that the information provided in this report covers the questions that were posed by the previous panel members and provides this panel with information that can assist them in making a substantial decision on Z's behalf. I acknowledge both parents claims that they feel that they can now provide a permanent life for Z, however in the intervening years since she was placed in care, almost 5 years ago, Z has grown up and is no longer a baby and any prospect of rehabilitation that would be in her best interests is not feasible nor practical. Z deserves the right to have a safe and secure upbringing that will positively nurture and develop her through her childhood and into adulthood and I would recommend that adoption affords her the best opportunity to achieve this.”
[40]On 3 October 2011 the Children’s Hearing reconvened. In the light of the Safeguarder’s report it directed that Z was to live with A and that she was to have no face-to-face contact with either M or F. The adoption plan of the Local Authority was categorically approved. In its written reasons the Hearing found:
“The decision today of the Hearing was that Z still requires compulsory measures of care. She requires to be protected from the emotional impact of her situation at this time and needs to be afforded stability, security and continuity during this transition from her long term carers to her prospective adoptive carer.”
[41]M appealed this decision. On 29 November 2011 Sheriff Ferguson refused the appeal and confirmed the decision of the hearing. M and F were separately legally represented at the hearing.[42]Meanwhile, on 19 August 2011 the adoption application was issued in London. District Judge McGregor gave directions, including directions concerning expert evidence on Scottish law, on 15 September 2011, 26 October 2011, 13 December 2011, 9 February 2012, and 22 March 2012. I gave final directions on 10 May 2012. The hearing commenced on 18 June 2012. The three day time estimate was exceeded and the court in fact sat for four days on 18, 19, 20 and 22 June before adjourning for a further two days on 25 and 26 July. It was in the latter phase that Mr Kovats QC appeared. On 22 June I made an order directing Glasgow City Council to make certain disclosure of their records, and over the period of the adjournment a further substantial volume of material was introduced into evidence. It is noteworthy that such a disclosure order was not sought at any of the seven case management hearings.[43]In Scotland further legal activity was happening. M sought a reconvention of the Children’s Hearing. On 26 March 2012 this took place. M sought contact. The Hearing was adjourned to abide the decision of this court on the adoption application. The hearing found that “it is likely to be distressing to Z to make any changes such as allowing contact with her parents before the application is made (sic, recto “heard”)”. M appealed that decision and on 11 May 2012 the appeal was dismissed. At about this time M applied to the Court of Session for Judicial Review against Glasgow City Council. In Scotland permission is not required to make such an application. In her petition M sought the following relief:
“(1) an order ordaining the respondents to make reasonable efforts to undertake a parenting assessment of the petitioner and of [F], in respect of the child Z; (2) an order ordaining the respondents to reconsider what long-term plan is appropriate for the child; (3) declarator that the respondents have failed to fulfil their statutory duties in terms of sections 22 and 23 of the Children (Scotland) Act 1995 in respect of the petitioner and the child; (4) declarator that the respondents have failed to fulfil their statutory duties in terms of section 14 the Adoption and Children (Scotland) Act 2007 in respect of the petitioner and the child; (5) declarator that the respondents have acted unlawfully by breaching the petitioner's rights in terns of article 8 of the European Convention on Human Rights: and (6) payment by the respondent to the petitioner of the sum of twenty thousand pounds (£20,000) sterling with interest thereon at the rate of eight percent (8%) per annum from the date of decree until payment.”
[44]It has been explained to me that the petition would come before a judge of the Court of Session shortly after issue for “First Orders” for intimation and service and fixture of the hearing, and that it is highly unusual for First Orders to be refused. Only where the petition discloses no arguable case in law would First Orders likely be refused. However on 15 May 2012 the Lord Ordinary (Lady Smith) heard counsel for M on the application for First Orders, refused it and dismissed the petition.[45]On 30 July 2012 the Children’s Hearing reconvened. M sought a variation of the supervision requirement to place Z in her care; alternatively for direct contact. She relied on the revelation in the disclosure to which I refer below. On any view this was a highly inapt application given that on 26 July 2012 I had concluded the hearing and had reserved this judgment. At no point during the hearing before me did M seek a variation of the arrangements whereby Z was placed with A. Unsurprisingly the Children’s Hearing declined to make any variations and “continued” (i.e. adjourned) the proceedings to abide my decision. M has sought to appeal that decision. That appeal has yet to be heard. Further, on 10 August 2012 M made an application to the Sheriff for a Child Protection Order under s57 of the 1995 Act requiring the removal of Z from A and her placement back with JR. I understand that the Sheriff declined to make the order stating that as Z was in England he did not have jurisdiction and that the application should be made to this court. On 20 August 2012 this court received an email from M inviting me to order that Z be removed from A to a “place of safety”.

This hearing

[46]In the first phase of the hearing (18 – 22 June 2012) I heard very lengthy oral evidence from the allocated social worker from Glasgow City Council, Miss Clare Smith and from Miss McFadden. I also heard oral evidence from A. All these witnesses were extensively cross-examined by Miss Sultan. F contributed a small amount of his own cross-examination conducted through an interpreter in his native language.[47]As I have mentioned above, at the conclusion of that phase of the hearing I invited the intervention of the Lord Advocate and made the disclosure order to which I have referred.[48]As I have explained, F did not attend the second phase of the hearing. No application for an adjournment was made by correspondence. In the light of an aspect of the disclosure which I will explain, A was recalled. I also heard the oral evidence of M and of the Guardian. I heard full submissions from Mr Kovats QC, and by all other counsel, although as I have explained Miss Sultan was cut off by withdrawal of her instructions half way through.

The positions of the parties

[49]The adoption application is strongly supported by the Guardian. As I have explained it is resisted by M and F chiefly on the ground that their Convention rights have been comprehensively violated by the process in Scotland. However, by virtue of a revelation in the disclosure M also opposes the application on the ground that Z is at risk in her present placement. Mr Kovats QC has rightly not been drawn into the dispute between the parties. Rather, he shortly and eloquently defended the Scottish system from the criticisms levelled at it.

Appraisal of the evidence

[50]Miss Smith had prepared a comprehensive Annex A report. In addition there was made available to me the confidential report on A prepared by a social worker for the authority in which she lives. The overwhelming part of her cross-examination by Ms Sultan was in truth a wholesale attack on the Scottish system rather than on actions actually taken by her and her authority. As Miss Smith stated, repeatedly, “we did not depart from procedures; we did everything by the book”. She confirmed that at all times rehabilitation had been considered but that at no stage was it a realistic prospect given the history.[51]Similarly, Miss McFadden was subjected to extremely lengthy cross-examination as to the perceived inequities of the Scottish system. Miss Sultan accepted that she had been extensively briefed by M’s Scottish solicitor, Mr X, and at times I felt that she (Miss Sultan) was being used to grind a Scottish axe. In the absence of any countervailing expert evidence it was always going to be a hopeless task, but as time went on it became increasingly clear that the arguments being put to Miss McFadden were utterly barren.[52]I will keep my observations about A short and unspecific as this is a confidential adoption and there has already been an inadvertent breach of confidentiality earlier in these proceedings. A, who is single, is plainly an eminently suitable person to adopt Z, should that be in her best interests. In my judgment she is a highly motivated, responsible, articulate, caring and insightful person. The confidential report accurately describes her as nurturing, calm, solid and mature. She is in decently paid self-employment and is financially sound. She can balance her occupation with her responsibilities to Z. Her home is a pleasant property and is owned by her, subject to a mortgage.[53]In the confidential part of the Annex A report there is a reference to Z’s “frequent tantrums” when with JR, but that she (Z) was now responding well to firmer boundaries, although there are times when she feels confused and vulnerable. Given her history this is hardly surprising. The nature of the relationship between A and Z is summarised thus: “A and Z enjoy having fun together; there is also a strong bond and a loving relationship also”.[54]In the disclosure there were entries which described how on 26 October 2011 A and Z were visited by JR, two of her foster children S (aged 13) and X (aged 11), and their social worker, Gail Patterson. During the visit Z apparently stated to S (who repeated it to Gail, who then told Clare Smith) that A has “locked her in her room and pulled her by the face” when she had been naughty. This was then thoroughly investigated by the Council, and the view was taken then it amounted to nothing more than appropriately sitting Z down when she was naughty and holding her face in order to maintain eye contact when admonishing her, and then sending her to her room as punishment. At all events no action was taken, and the episode was regarded as so inconsequential as not to warrant reference in the formal report to the court, or mention to the Guardian.[55]M has seized on these entries, and has described Z as being in a “place of danger” and that she is filled with “righteous indignation” for her daughter. Therefore I required A to be recalled. She explained calmly and obviously truthfully what I have described above. There was no question of her having “assaulted” Z. She did not lock Z in her room. Her room has no lock. Her language was firm, no more. She explained that the tantrums have now stopped; it has been rewarding to see her progress. There was initially a certain amount of frustration and anger when she was moved from her familiar circumstances with JR, but that has now come to an end.[56]I categorically reject the allegation that A has in any way mistreated Z. Her actions amounted to no more than normal discipline in respect of a child who was prone to tantrums when she came into her care.[57]The Guardian has filed two reports and gave oral evidence. Her conclusion was that adoption was overwhelmingly in Z’s best interests and would meet her needs both now and for the foreseeable future. As to M she concluded that:
“I was particularly concerned about her complete lack of insight into the impact on Z of her mother being introduced into her life and possibly being removed from A’s care. M did not appear to be putting Z’s welfare first and appeared to be more concerned about her grievances about how she has been treated by social services”
[58]In her oral evidence she confirmed these conclusions. She described Z as “happy contented and thriving”. She explained that in her opinion she had not been the easiest child to care for and that A was coping extremely well. Their relationship was very affectionate, warm and close. This was challenged in cross-examination but her views were strongly affirmed:
“I am basing my conclusions on my observations”
. She stated that “it is quite the reverse that she is any danger”.[59]M filed a statement. In it she stated “the proceedings in Scotland previous to this court were all in my favour for my child to be returned to me until these proceedings began here in London”. This is obviously untrue, as the record above shows. Whether this falsehood is the product of deliberate mendacity or of delusion is unnecessary for me to judge. It colours the rest of what is a careful professionally drafted statement. Much there was highly controversial and its truth or falsehood would be tested by cross-examination. But while M completed untesting examination-in-chief, I was not able to gain much benefit from her evidence under cross-examination as after a brief demonstration of belligerence she refused to answer further relevant questions put to her.[60]F filed a statement in the form of a letter to the court. In it he explained that he committed fraud because “I wasn’t receiving any benefits from the Government”. In it he complains at his lack of indefinite leave to remain here. He puts himself and his wife forward as carers for Z. The statement shows a total lack of insight into Z’s needs. I place little reliance on it given that F failed to attend the second phase of the hearing to give oral evidence.

Conclusions

[61]By s52(1)(b) ACA 2002 the court cannot dispense with the consent of M and F unless the welfare of Z requires their consent to be dispensed. In Re P (Placement orders: Parental Consent) [2008] 2 FLR 652 the Court of Appeal has stated that the use of the verb “requires” has an imperative connotation. Thus the welfare of the child must demand dispensation, rather than it being merely reasonable or desirable. The question is this: is adoption “required”? If a measure short of adoption will meet the welfare needs of the child both short and long-term then it cannot be said that adoption is “required”.[62]It has been observed that with the abolition of capital punishment the decision to make an adoption order, which extinguishes the entire legal relationship between a natural parent and a child and vests all legal rights and duties in the adopter, is one of the most momentous that a court is called on to make. I do not underestimate the seriousness of my task.[63]That said, my decision is crystal clear. M and F are total strangers to Z. Their only connection to her is biological. There is no psychological or emotional connection whatsoever. So far as nurture, as opposed to nature, is concerned the upbringing of Z has been entrusted for the first 5 years of Z’s life to JR and latterly to A. A is her true parent in every sense of the word other than biological. And Z’s welfare demands that this simple truth is formalised by adoption. Any measure short of adoption is likely to foster in Z’s mind with her growing maturity the thought that the commitment of both the state and of A to the security of her future is questionable. Above all she needs permanence and normality. In my judgment on the facts of this case that can only be achieved by adoption.[64]The assault by M on the processes in Scotland which led to her placement in England is completely misguided. Of course all comparisons are odious but I cannot help but venture the observation that a system that embraces informality and eschews the black-letter formality of an adversarial expert-evidence based contest has much to recommend it. I am completely satisfied that at all stages (perhaps too many stages) M’s Convention rights were faithfully observed by the judicial and other state authorities in Scotland.[65]For these reasons I grant the application and direct that Z’s name is entered on the Adopted Children Register.

Cited in 2 later judgments