Petition Of West Lothian Council V. M. Mcg, W.p., J.f.f. And The Scottish Ministers

JudgeLord Hamilton,Lord Reed,Lord Justice Clerk
Date10 May 2002
Docket NumberXA87/01
CourtCourt of Session
Published date10 May 2002


Lord Justice Clerk

Lord Hamilton

Lord Reed

XA87/01 & XA97/01






from the Sheriffdom of Lothian and Borders at Linlithgow







M. McG, W. P. (AP) and J. F. F.






10 May 2002

Act: J.M. Scott; Simpson & Marwick W.S. (Petitioners and Respondents);

Alt: Macnair, Q.C.; Balfour & Manson (Second Respondent and Appellant);

Party (Third Respondent and Appellant)

Doherty, Q.C., Mure; Solicitor to the Scottish Ministers (Minuters)


[1]These are appeals against decisions of the sheriff at Linlithgow dated 24 March 2000 by which he made orders in terms of section 18(1) of the Adoption (Scotland) Act 1978 (the 1978 Act) declaring D W P and J-M F free for adoption; dispensing with the consent of M McG or P and W B P, the parents of D W P, to the making of any adoption order in respect of him; and dispensing with the consent of M McG or P and J F F, the parents of J-M F, to the making of any adoption order in respect of him.

[2]The mother of these children is M McG or P, to whom I shall refer as Miss McG. D W P (D) was born on 22 February 1992. His father is W B P (Mr. P) with whom Miss McG cohabited but whom she did not marry. J-M F was born on 27 September 1997. His father is J F F (Mr. F) with whom Miss McG cohabited but whom she did not marry.

[3]The respondents are the social work authority for West Lothian and are a statutory adoption agency. They raised the proceedings in the sheriff court. The respondents' social work department was closely involved in the care of D, and in due course J-M, from birth. I shall discuss the history later. In June 1999 the respondents applied for orders under section 18 of the 1978 Act declaring the children free for adoption and dispensing with the consent of the parents in each case on the grounds that the parents were withholding their agreement to adoption unreasonably and that they had failed without reasonable cause to fulfil their parental responsibilities under section 16(2)(c)(i) and (ii) of the 1978 Act.

[4]The petition was opposed by the parents in each case. The sheriff held a conjoined proof in the petitions and granted the orders craved.

[5]Miss McG appealed to this court against the sheriff's decisions, but abandoned her appeals shortly before the hearing. The fathers of the children appealed to this court and maintained their appeals. At the hearing of the appeals, Mr. P was represented by senior counsel. Mr. F appeared in person.

[6]Since Mr. P's appeal raised a point as to the compatibility of the legislation with the European Convention on Human Rights (the Convention), the Scottish Ministers compeared as minuters and were represented by counsel. The Advocate General notified the court that she did not wish to be joined as a party to the proceedings.

The history

[7]The following history is set out in the sheriff's findings in fact, which none of the parties has challenged, and in the agreed medical evidence.

[8]Miss McG and Mr. P lived together from D's birth until spring 1996. D lived with them from birth until August 1995. During that time the family required considerable social work help. The social worker involved with the family frequently found on going to their home that the family were not awake and that the curtains were drawn. The house was sparsely furnished and poorly heated. D was often unsupervised while his parents slept. During this time Miss McG frequently appeared to be under the influence of drugs or alcohol. She smelled of drink, her pupils were dilated and her behaviour was bizarre. In April 1993 she dropped D and he was injured. As a result of that incident a place of safety order was made in respect of D and he spent a week in foster care.

[9]In September 1994 Miss McG was admitted to a psychiatric ward after which D spent about six weeks in foster care.

[10]During 1995 the situation deteriorated. The social worker received reports from neighbours that Miss McG and Mr. P were arguing in the street and dragging D behind them. D missed several attendances at the Children's Centre in June-July 1995. On occasions the social worker had difficulty in being admitted to the house. On or about 30 August 1995 she found Miss McG at home in an incoherent and agitated state. Miss McG agreed that she was unable to care for D and that he should be placed in foster care. Shortly afterwards, Miss McG was detained in hospital under the Mental Health (Scotland) Act 1984.

[11]From then until October 1996 D was in foster care. When received into foster care he was withdrawn and was bed-wetting, soiling and smearing faeces. From April 1995 until June 1996 access by Miss McG and Mr. P was infrequent. They missed many possible visits. During this period D settled well with his foster carers.

[12]On 12 March 1996 the respondents' adoption panel recommended that D should be freed for adoption.

[13]In the early part of 1996 Miss McG began to bring Mr. F with her on access visits, introducing him as a family friend. Around April 1996 D was admitted to hospital for an operation. Miss McG, Mr. P and Mr. F attended at the ward. D was upset by Miss McG's behaviour. She was drunk and noisy. By June 1996 Miss McG had separated from Mr. P and was living with Mr. F.

[14]After about June 1996 Miss McG ceased to be dependent on drink and drugs. She co-operated with the social work department regarding D's care. She maintained access visits and the quality of her contact with D was good. Such was the improvement that in October 1996 D was returned to Miss McG's care. Thereafter D had a good relationship with Miss McG and Mr. F. He saw Mr. P regularly. On 9 October 1997 D's supervision order was terminated. Shortly before the supervision order was terminated, J-M was born.

[15]Matters deteriorated in about December 1997. The social work department received reports of disturbances at Miss McG's home. In one such incident on 11 December 1997 Mr. F assaulted Miss McG and she removed the children from the house. In the early part of 1998 there were further reports of disturbances involving police intervention. On 11 February 1998 there was a drunken disturbance involving Mr. F and Miss McG which resulted in his putting her and the children out of the house after midnight.

[16]As a result of that incident, the respondents obtained a child protection order in respect of both children. The respondents then placed them with foster carers called Mr. and Mrs. J. Thereafter Miss McG and Mr. F failed to exercise access satisfactorily. Arrangements for D to stay with them at weekends were unsuccessful. On his return he was soiled, wearing dirty clothing and appeared to be hungry. In June 1998 weekend access by Miss McG and Mr F was brought to an end.

[17]In 1999 Mr. P and Mr. F each entered into a minute of agreement with Miss McG in terms of section 4 of the Children (Scotland) Act 1995 (the 1995 Act). These minutes were registered in the Books of Council and Session on 4 May and 9 July 1999 respectively.

[18]After June 1998 access by Miss McG and Mr. F was irregular and not particularly successful. D lost interest in contact with his mother and said that he no longer wished to have contact with her. J-M recognises Miss McG and Mr. F but has no understanding that they are his parents. He enjoys their visits, as the sheriff puts it, "in a way in which a child would enjoy the visit of a relative or an adult with whom he is familiar."

[19]Mr. P suffers from mental illness. From September 1994, he was unable to care for D unassisted. When Miss McG was in hospital he was unable to look after D. The medical evidence is to the effect that in 1993 Mr P was diagnosed as suffering from a paranoid psychosis; that thereafter it became more apparent that he was suffering from a psychotic illness; that in 1999 he was admitted to hospital for a time under the Mental Health (Scotland) Act 1984; that by late 1999 he was diagnosed as suffering from a schizophrenic illness; and that at that time it was the opinion of his consultant that he was not able to provide care for D and that his condition would not improve sufficiently to enable him to do so in the future.

[20]D sees Mr. P regularly. He has expressed a wish to remain in contact with him. He has an understanding that he cannot live with his father and that his father is not capable of caring for him. He has expressed a wish to go and live with his father when he is older. He would be upset if contact with his father ceased.

[21]Both children are settled and happy with Mr. and Mrs. J. D wishes to remain with them and does not wish to return to his mother. J-M would be confused if he had to leave Mr and Mrs J and live with his mother or his father.

The future for the children

[22]It appears from the sheriff's findings in fact that if the children are freed for adoption it is virtually certain that they will be adopted by Mr. and Mrs. J with the encouragement and support of the respondents. In that event, it is likely that Mr. and Mrs. J will continue to allow D to have contact with Mr. P and will encourage him to do so. This is likely to be their attitude whether or not there is a court order providing for contact.

[23]If J-M is adopted by Mr. and Mrs. J it is probable, but not certain, that contact with Miss McG and Mr. F will cease. It is likely that Mr. and Mrs. J will acquaint J-M with his origins and the identity of his birth parents. It is also likely that they will permit contact with the birth parents, if that is J-M's wish, when he is older.

The sheriff's decision

[24]The sheriff found in fact and in law in relation to D that Miss McG was withholding her consent unreasonably to the making of an adoption order; that Mr. P was likewise withholding his consent unreasonably; that Miss McG had persistently failed...

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