Scottish Sheriff Court Decisions

(PO1/10)

JUDGMENT (NO. 2) OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal

in the cause

 

EAST LOTHIAN COUNCIL

 

 

Application of a Permanence Order

Under Section 80 of the Adoption and

Children (Scotland) Act 2007

in respect of the child

 

LSK

 

Act: Ms M Loudon, Advocate, instructed by East Lothian Council

Alt: (First Respondent) Bell, Advocate, instructed by Garden Stirling Burnet

Alt: (Second Respondent) Ms Stirling, Advocate, instructed by R A Low & Co

 

 

EDINBURGH, 13 July 2011

 

The Sheriff Principal having resumed consideration of the cause varies the sheriff's interlocutor of 6 May 2011 in the fourth provision of the permanence order by inserting between the words "child" and "all the following: "and by the parents responding on an annual basis with written information about themselves and their family together with an updated photograph for transmission by the respondent to the child's carers"; quoad ultra adheres to said interlocutor and refuses the appeal; finds no expenses due to or by either party.

(signed) E Bowen

 

Note

1. On 30 July 2010 the sheriff granted the prayer of the petition in this case, whereby he made a permanence order in favour of the petitioners under section 80 of the Adoption and Children (Scotland) Act 2007 in relation to the child LSK, together with a number of ancillary provisions including a provision for the child to be adopted. On 8 March 2011 I recalled that interlocutor of consent; remitted the cause to the sheriff for reconsideration with particular regard to section 84(5)(c) of the of 2007 Act; and appointed the curator ad litem to prepare a supplementary report.

 

2. It is worth noting, at this stage the reasons for that recall. Section 84(5) of the 2007 Act provides that before making a permanence order, the court must... "(c) be satisfied that - (i) there is no person who has the right mentioned in sub-section 1(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or (ii) where there is such a person the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child". In the proceedings before the sheriff there was a joint minute of admissions entered into by parties in terms of which it was agreed that there was no person having the right to have the child with him or otherwise to regulate the child's residence under section 2(1)(a) of the 1995 Act. On the face of that concession it was not necessary for the sheriff to consider the question of "serious detriment" because parties were in agreement that there was no person who had the right mentioned in section 2(1)(a) of the 1995 Act. This concession had apparently been made because the child was subject to a supervision requirement imposed by the children's hearing. At the stage of the first appeal to me it was conceded that this concession was wrong in law and that the test contained in sub-section 5(c)(ii) of section 84 ought to have been addressed.

 

3. The matter has been reconsidered by the sheriff in the light of a supplementary report from the curator dated 6 April 2011. By interlocutor dated 6 May 2011 the sheriff made an additional finding in fact and law 7, viz: "D and S are persons who have the right mentioned in sub-section 1(a) of section 2 of the 1995 Act to LSK living with them (which right is presently suspended by the operation of a supervision requirement from the children's hearing) and LSK's residence with D and S is likely to be seriously detrimental to the welfare of LSK". He granted a permanence order of new, again with ancillary provisions including authority for the child to be adopted. The present appeal is against that interlocutor.

 

4. The grounds of appeal for the first appellant (S, the child's mother) and the second appellant (D, the child's father), are in identical terms. The first ground is as follows: "The learned sheriff erred in law in proceeding to grant a permanence order based on the findings in fact which he had made on 30 July 2010, the report of the curator ad litem dated 6 April 2011 and the submissions of the parties. In doing so he acted contrary to (the appellant's) rights under Articles 6 and 8 of the European Convention on Human Rights. The eight day proof which took place in 2010 proceeded on the basis of an error in law, namely that there was no person who had the right to have LSK living with them or otherwise to regulate his residence (section 84(5)(c)(i) of the Adoption and Children (Scotland) Act 2007). In fact the petitioners required to prove that LSK's residence with D or S was, or was likely to be, seriously detrimental to the welfare of LSK in terms of section 84(5)(c)(ii) of the Act. At the proof, parties did not join issue on that test and the evidence was not directed to meeting that test. The learned sheriff proceeded to consider the test at a hearing restricted to submissions based on existing findings in fact, evidence from the proof and the updated curator's report. He reached his decision based on that material. (The appellant) did not have the opportunity of leading evidence regarding changes in his ability to look after LSK in the period since the proof, or of leading evidence to explain some of what was recorded in the curator's report. He has not had a fair hearing".

 

5. Counsel for second appellant, supported by counsel for the first appellant, developed this ground of appeal in submissions. It was submitted that parties had not "joined issue" at the proof on the test contained in section 84(5)(c)(ii). That test was a high one. The requirement to be "satisfied" as to "serious detriment to welfare" was to be contrasted with the test for the granting of an order for authority to adopt which was that the court had to "consider" that it would be better if it were to grant such authority than were it not to do so (section 83(2)(d)). This high test, and the need for parents to be fully and properly involved in any decision to remove a child from their care was underpinned by many decisions dealing with Article 8 of the European Convention on Human Rights - see the Principal Reporter v K (2010) UK SC 56, 2011 SLT 271 at paragraphs 41 to 43. Failure to address the test necessarily resulted in a position where the sheriff was "clearly wrong" and in consequence an appellate court was entitled to interfere. Counsel founded on part of the speech of Lord Simon of Glaisdale in A v B & C 1971 SC HL 129 at 147 where he said: "Expert evidence is not required to tell us that the handing over the child from a family into which he has been integrated to one of total strangers is likely to be far more destructive and damaging him now that it would have been at the end of 1968 or up to the middle of 1969. This consideration should not, in my judgment, preclude your Lordships as an appellate tribunal from allowing the appeal if it were clear that the courts below had proceeded in error - justice to the appellants would demand no less - but I think it should impose some additional caution before interfering with a decision which granted a correct approach in law is primarily one of judgment by an instance court of matters of fact and of degree and of the balance of competing claims".

 

6. Counsel contented further that the sheriff had erred in his approach by basing Finding in Fact and Law 7 on his original findings in fact which were in effect out of date. He said in his Note: "It is clear from my judgment that, after hearing evidence, I was of the view that the welfare of LSK would be best served by the making of a permanence order. I would refer in particular to Finding in Fact 27 where I stated that D and S would not be able to care for LSK properly on their own. If they were unable to care for LSK, then it follows, in my view, that it would be seriously detrimental to the welfare of LSK should he be returned to the care of D and S. Finding in Fact 29 states that "the difficult behaviour of D is an impediment to LSK being cared for by D and S and by the grandparents. D's control of his behaviour has not improved to such an extent for LSK to be accommodated either with D and S or with the grandparents. D continues to have difficulty exercising self control which results in confrontation with people when he does not agree with them". Again it is clear from that finding in fact that I took the view that it would be seriously detrimental to the welfare of LSK for him to reside with D and S". It was to be noted that Finding in Fact 29 related principally to the prospect of the child being with his grandparents. That was no longer an issue. If one turned to the curator's report there was much in it which was positive. At the time of the curator's visit S was anticipating the early arrival of a new baby. She was co-operating with plans set out by social workers and was appreciative of support received from Children First. D had presented well to the curator who said that he "remained perfectly calm, courteous and pleasant throughout my visit. He did not seem to resent my probing questions". Enquiry of a member of the Local Authority Criminal Justice Team who had supervised a probation order for D said that she "believed that he had now matured and was less obstructive in his dealings with authority". This was borne out by enquiries made with the police which indicated that he was much less involved in offending behaviour. In these circumstances far from providing additional material to support the sheriff's conclusion it tended to negate the earlier findings in fact.

 

7. In that factual situation the sheriff should not have approached the matter by relying on historical findings and looking for a change of circumstances. What he ought to have done was to revise the original findings relating to the parents and, having regard to the high standard of tests set out in section 84(5)(c) to hold that it had not been met.

 

8. These submissions embraced the first three written grounds of appeal. The fourth ground of appeal is in the following terms: "The learned sheriff erred in law in making assumptions about what he thought would be the effect of returning LSK to his parents' care at the age of two years old in the absence of expert evidence. He further erred in apparently assuming that the initial upset to LSK resulting in from such a move satisfied the tests set out in section 84(5)(c)(ii) of the Act without looking to the possible long term benefits to LSK of living with his parents and sister". Counsel submitted that this ground of appeal spoke for itself.

 

9. The fifth ground of appeal was to the effect that the sheriff erred in law by restricting future contact between the appellants and LSK to annual contact by the petitioners providing up to date written information about the child and a photograph. The ground of appeal states that in circumstances where the appellants have had continuing contact with the child who now has a baby sister that order for contact is in breach of the Article 8 rights of the appellant, the child and the baby. Counsel submitted that the question of contact was not dealt with at all in the sheriff's decision in May 2011, and was barely dealt with in his earlier decision. There was no discussion of the test for making an ancillary provision in relation to contact. Bearing in mind that there had been continuing contact with the child there would require to be proper justification for interference with the right to a family life of all those involved.

 

10. Counsel for the first appellant developed these submissions to some extent. He maintained that the main issue was whether the appellants had been denied an opportunity to lead further evidence prior to application of section 84(5)(c)(ii), and whether as a result their Article 6 rights had been breached. He maintained that incompatibility with those rights was illustrated by the fact that the sheriff, in determining the matter, looked to see if there had been any change of circumstances which was close to saying that there was an onus on the appellants to establish that there had been such a change since the original judgment. When I put it to counsel that the sheriff was not authorised in terms of my interlocutor to hear further evidence he submitted that the difficulty was that the sheriff had gone beyond what was contemplated in my order of 8 March 2011. Paragraph 18 of the Note issued on that date indicated that the sheriff was required to consider a distinct legal test which he had not considered previously, "and which may be affected by a change of circumstances". In fact the sheriff had founded on a number of factors which might be construed as circumstances adverse to the appellants without giving them an opportunity to comment on them. He dealt at some length with the fact that the appellants appeared to have changed their relationship with the second appellant's parents. He had founded on certain new aspects relating to the second appellant's behaviour. The appellants had been afforded no opportunity of providing an explanation on these matters. Further the sheriff had commented on the difficulty of changing the care arrangements for a child who was now aged two years. The appellants ought to have had an opportunity of leading evidence as regards the "formation of attachments" if necessary from an expert witness.

 

11. Counsel maintained that the sheriff ought to have made revised findings and proposed a series of these intended to cover the current relationship between the appellants and the current more stable condition of the second respondent. A further proposed new finding (already out of date) covered the fact that as at 6 May 2011 the first respondent was expecting a baby later that month. It also narrated that a pre-birth case conference concluded that provided the appellants accepted the need for regular intensive support and monitoring the expected child should be cared for by them after the first appellant's discharge from hospital.

 

12. In summary it was submitted that on the basis of the factual findings which he ought to have made the sheriff could not, and should not, have proceeded to determine that LSK's residence with the appellants was likely to be seriously detrimental to his welfare. That being so the appeal should be allowed and the application dismissed.

 

13. Counsel for the first respondents went on to make a series of alternative submissions. The first was that the sheriff's interlocutor of 6 May 2011 should be varied to the extent of recalling the authority to adopt. Counsel pointed to the fact that the sheriff had extinguished the appellants' parental rights and responsibilities except to the extent of permitting annual contact by means of the provision of written information about the child. That right would be extinguished on the making of an adoption order (section 35(2) of the 2007 Act). Counsel drew attention to the provisions of the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children) (Scotland) Act 2007) (2009 No 284), and said that although paragraph 14(1)(f) granted a discretionary power to a sheriff to order intimation of a petition for adoption to such persons as he considered appropriate, there was no automatic right on the part of the appellants to receive intimation of any such application should it proceed. There was thus a danger that the appellant's rights under Article 6 - defined as involvement in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of the interests (Principal Reporter v K (supra) paragraph 41) - would be breached.

 

14. Counsel contended that if he was making a contact order, the sheriff should not have granted authority to adopt; but in reality the issue of contact had not been given proper consideration. In paragraph 34 of the Note to his interlocutor of 30 July 2010 the sheriff had observed that the appellants and grandparents wished to maintain contact with LSK in the event of them not caring for him. He proceeded: "The present carers who are potentially adopters are not agreeable to face to face contact. They are prepared to agree to letterbox contact providing they consider it to be in the interests of L for that to continue. That would involve D and S being written to and informed on a regular basis on the well being and development of L and D and S providing information in return to the prospective adoptive parents which could then be given to L". Counsel submitted that the mere fact that the prospective adopters were not agreeable to contact was not a reason for restricting it at this stage. It could not even be said that an adoption application was certain. The curator had chosen not to speak to the prospective adopters in preparing his supplementary report and their attitude to contact now was not known. In these circumstances counsel submitted that if not disposed to grant the appeal in full the court should vary the contact order to provide for direct contact either on a monthly or six weekly basis, to be supervised by the petitioners.

 

15. Alternatively counsel submitted that it was plain that the sheriff had contemplated contact "both ways". Finding 34 contemplated the appellants providing information to the adoptive parents which could then be passed on to the child. This was not reflected in the sheriff's order. Counsel accordingly proposed that paragraph 4 of the provisions of the permanence order set out by the sheriff should be varied by inserting a provision to enable the appellants to respond on an annual basis to the written information provided to them and for this to be transmitted by the petitioners by the child's carers.

 

16. In response counsel for the petitioners began by drawing attention to the fact that there had been eight days of evidence led in this case involving 17 witnesses and 12 affidavits. LSK who is now 21/2 years had been in the care of prospective adopters since May 2010. Counsel accepted that Article 8 of the Convention was engaged and that the appellants had a legitimate interest in founding on it; the question was whether the order which had been made could be described as "necessary in a democratic society" for the protection of the child. Counsel submitted that this requirement was clearly met.

 

17. In relation to Article 6 counsel submitted that in determining whether the appellants had received a fair hearing the proceedings had to be looked at as a whole. She submitted that there could be no suggestion of a "inequality of arms". At the stage when the case was before the sheriff in May 2011 he had before him an independent report from an officer of court to which both parties had had an input. They were represented and had an opportunity to make submissions in the proceedings. This was not a case in which the parents could be said to have been excluded from the decision making process. Counsel further pointed out that there was no realistic prospect of the child in this case being placed with the appellants. Their interest in the proceedings was to some extent limited.

 

18. The court should only interfere with the decision of the sheriff if he had "clearly gone wrong". (A v B and C (supra)). It could not be said that the sheriff had clearly gone wrong in arriving at his conclusion. The sheriff had found that the appellants would not be able to care for LSK properly on their own (Finding in Fact 27). If someone could not care for a child it was obviously "seriously detrimental" to place the child in their care.

 

19. The third ground of appeal suggested that the sheriff erred in failing to give sufficient weight to the evidence of significant improvement in the behaviour of the second respondent both in the 12 months prior to the proof and thereafter. The weight to be placed on such evidence was very much a matter for the sheriff himself and he was, in particular, entitled to take into account the view he had formed of the second appellant at the time of the proof. It was significant to note that the view he had reached was extremely adverse. He had said (at page 26) that as long as the first appellant was with the second appellant "she will be unable to carry out satisfactorily her parental rights and responsibilities". He had, in the same section, specifically examined the question of improvement in the second appellant's behaviour and had concluded, at that stage that it was not sufficient to enable him to carry out his parental rights and responsibilities satisfactorily. The sheriff had gone on to note in his second judgment that whilst the rate of offending of the second appellant had declined "it is perturbing to note that there are still allegations of confrontations with local authority officials and with neighbours which tend to suggest that the improvement made by D is not as extensive as he would have hoped".

 

20. Counsel refuted any suggestion that the sheriff had erred in law by his observation that "it is within judicial knowledge that there is a difference from the effect of removing a child of one year old and a child of two years old". The fourth ground of appeal suggested that this was an error in the absence of expert evidence. Counsel for the petitioners drew attention to the observations of Lord Reid A v B and C (supra) at page 142 where his Lordship commented that "I think that a judge is well able to estimate the probable effect of uprooting a child of tender years and transferring it from adopting parents, with whom it is happy, to its natural parents of whom it has no recollection. In unusual cases medical evidence may be helpful, but I should be sorry to see any general tendency to call medical evidence in these cases".

 

21. In relation to the question of contact, counsel accepted that the reasons for altering the status quo were not extensive but the fact of the matter was that evidence had been led on this issue. The affidavit of Andy McMonagle, LSK's allocated social worker had been lodged in process. Paragraph 96 indicated that contact other than annual letterbox contact would, in his view, undermine the plan of adoption. Mr McMonagle had given evidence to this effect (Vol 2 of the Notes, pages 212; 219 to 221). He had indicated in particular that the child would have some difficulty of making sense of who the appellants are and how they fit into his life. The appellants had an opportunity of commenting on this view and extensive written submissions had been laid before the court.

 

22. Counsel refuted the suggestion that there was any danger to the appellants' article 6 rights by the order granting authority for adoption. The form of the sheriff's order was to divest the appellants of their parental rights and responsibilities except in relation to contact. That right was not divested. The arrangements for contact were specified in terms of section 52(1)(c) of the Act. It was inconceivable that that intimation of any adoption petition would not be considered and ordered under paragraph 14(f) of the Act o Sederunt, particularly when paragraph 8(3)(g) required the lodging of an extract of the permanence order ad paragraph 4(d) called for the lodging of "an account of the discussions with the parent of the child".

 

 

 

23. Counsel was content to leave the question of revised findings in fact to the court, but submitted that any changes could not affect the sheriff's use of the evidence and ultimate conclusions based on it. She nevertheless questioned whether it would be appropriate to alter, at this stage, findings in fact made after a proof in July 2010.

 

 

 

DECISION

 

24. This case raises no distinct Article 8 "issue". There is no question that the making of a permanence order constitutes an interference with the rights of the appellants to a family life. It can only be justified if made in accordance with the law, pursues a legitimate aim, and can be regarded as "necessary in a democratic society". The current order is sought in accordance with the law - namely the provisions of the 2007 Act, and it "pursues a legitimate aim" being the protection of the health and welfare of the child. The only question is whether the order can be seen as necessary in the whole circumstances of the case.

 

25. Stepping back from the procedural complications one cannot lose sight of the fact that, as counsel for the petitioners put it, there is no realistic possibility of the child being returned to the care of the appellants. Apart from the very fact that they have never cared for him, they themselves appear to have acknowledged to the curator that it was "difficult to envisage the child returning to them in view of the past difficulties". That is a realistic but significant acknowledgement. If it is not realistic for the child to be returned to the appellants there can, for example, be no substance in the fourth ground of appeal which criticises the sheriff for reaching a conclusion without expert evidence as to the effect of moving a two year old from one home to another. That would have done nothing other than to protract already lengthy proceedings. But it has, in my view, more general significance - it is hard to see why the sheriff has gone "clearly wrong" when the making of a permanence order appears virtually inevitable.

 

26. Moving to the question as to whether there has been any infringement of the rights of the appellants to a fair hearing under Article 6(1), again there is no doubt as to the engagement of the Article. It is also beyond argument that the appellants had a full involvement in the first part of the proceedings, a fact which distinguishes the case from "non involvement" cases such as Dumbo Beheer v The Netherlands (1993) 18 EHRR 213 which was founded on by counsel for the second appellant. The main issue here is whether the "hearing" - by which I mean the proceedings as a whole - was "fair" in respect that the ultimate determination was based on a decision in law for which there was no proper evidential foundation because of the form of the earlier part of the proceedings. A subsidiary question is whether the appellants had a sufficient degree of involvement in the second part of the proceedings.

 

27. In both respects it is difficult to avoid the conclusion that the first and principal ground of appeal is other than an attack on my own decision of 8 March 2011 to remit the case to the sheriff for reconsideration "with particular regard to the terms of section 84(5)(c)(ii) of the 2007 Act and to the submission of parties relative thereto". The first sentence of the ground of appeal reads: "The learned sheriff erred in law in proceeding to grant a permanence order based on the findings in fact which he had made on 30 July 2010 the report of the curator ad litem dated 6 April 2011 and the submissions of the parties". In the light of the terms of my interlocutor the sheriff could do no more than proceed on that basis.

 

28. It will be noted that my decision to remit on that basis was on the motion of counsel for the petitioners (Note of 8 March paragraph 16). On reflection I am inclined to the view that the decision to do so erred on the side of caution. As I was not addressed in any detail on the evidence it appeared to me to be appropriate for the sheriff himself to consider whether the test of section 84(5)(c)(ii) was met albeit he had not been addressed on it. As it turned out the sheriff had this to say (Note p6): "...I did in the course of the hearing of evidence consider the welfare of LSK. It is clear from my judgment that after hearing evidence, I was of the view that the welfare of LSK would be best served by the making of a permanence order. I would refer in particular to Finding in Fact 27 where I stated that D and S would not be able to care for LSK properly on their own. If they were unable to care for LSK then it follows, in my view, that it would be seriously detrimental to the welfare of LSK should he be returned to the care of D and S".

 

29. There are echoes of this approach in certain of the observations of Sheriff Principal Sir Stephen Young in the case of Aberdeenshire Council v T W and J W (unreported Banff) 2 May 2011). At paragraph 13 of his Judgment the Sheriff Principal accepted a submission in that case that the sheriff had not in terms addressed the question of whether he was satisfied that the child's residence with the respondents was or was likely to be seriously detrimental to her welfare. He nevertheless drew attention to certain comments by the sheriff in which it was held that the child could not be returned to the care of her natural parents. He then said: "If it be asked upon what basis the sheriff felt able to make these statements, the obvious explanation is that he was satisfied that C W's residence with T W and J W was, or was likely to be, seriously detrimental to her welfare and that the absence anywhere in his Note of an alternative explanation I consider that this must be the correct explanation and that the sheriff ought accordingly to have made a finding in fact to this effect". In the light of these observations the Sheriff Principal felt able to recall the sheriff's dismissal of the proceedings and made a permanence order himself.

 

30. I agree with that approach and consider that it might well have been open to me to have proceeded in a similar fashion. That view necessarily leads to the conclusion that the question of "serious detriment" was sufficiently addressed in the first part of the proceedings in a manner which was fair to the appellants notwithstanding the fact that the statutory provision was not addressed specifically.

 

31. The second and distinct question is whether there was any unfairness in the proceedings once they were remitted to the sheriff. I hesitate to embark on dealing with that question which to my mind necessarily involves reconsideration of my own earlier interlocutor, and I pause to observe that I do not understand, and in consequence reject, any suggestion that the sheriff in some way exceeded the scope of the remit. The primary purpose of the remit was to enable the sheriff to focus on the test contained in section 84(5)(c)(ii) of the Act, and to decide whether he could apply it in the light of the evidence which he had heard. It may have been unnecessary to order a supplementary report from the curator, but out of fairness to the appellants I considered it appropriate to do so. If that report had brought out matters of significance which were to cause the sheriff to change his mind, it would have been open to him to do so, but it was not intended to introduce an evidential onus on the appellants to demonstrate a change of circumstances.

 

32. In the event, the curator reached a clear conclusion as set out in the concluding paragraphs of his report. He observed that the needs of LSK in adjusting to what, for him, would be a third new home and new "parents" would be beyond the capacity of the appellants. He observed that LSK's needs would be likely to take second place to those of the new child. He said: "The likely effects on LSK would be serious and detrimental risk to his development".

 

33. Any suggestion that the appellants did not have a fair hearing at this stage appears to me to be refuted by what follows. The curator said: "S and D themselves now accept how difficult it would be for LSK to reside with them. They repeat their aversion to LSK being adopted. They indicate that they would accept long term fostering provided they could maintain direct contact with the child. While these wishes are wholly understandable they are a reflection of their wishes and needs rather than what would be in LSK's best interests". I would not doubt accuracy of the curator's recording of this position, and it serves to underline that further evidence or submissions from the appellants on a perceived ability to look after the child would do nothing other than protract the proceedings.

 

34. The sheriff had regard to the curator's view, but it is also clear that he considered the whole position in the light of both the current circumstances as disclosed in the curator's report and his own view of the family circumstances of the appellants as formed at the proof. He recorded that: "The difficulties which were present at the time of the proof have not changed to any significant extent. The lack of support from D's mother and stepmother has increased those difficulties. The possible presence of new child in the D and S household only adds to the uncertainty and risk as far as any attempt to rehabilitate LSK into that family." He went on to note that D's propensity for conflict with authority was not fully resolved. In that situation, and having regard to the appellants' expressed views about their future relationship with LSK, it is impossible to sustain the third ground of appeal which suggests that the sheriff failed to give sufficient weight to improvements in the appellants' circumstances since the proof.

 

35. On the matter of contact, I consider that counsel for the petitioners was correct in conceding that this was not explored in depth at the proof, but evidence was led concerning contact in the event of adoption which evidence was not challenged. This, I consider, was inevitable given the position of the appellants. Their opposition to adoption stems from a realisation that this would involve the cessation of direct contact; it is that opposition which leads them to favour long term fostering. The sheriff's conclusion was that adoption, which necessarily involves the exclusion of the appellants from LSK's life, was appropriate having regard to his interests. I cannot conclude that the sheriff made any error in this respect, or that it would be right to re-visit it.

 

36. In all theses circumstances I do not consider that any of the grounds of appeal are made out, and the appeal is in consequence refused. I shall amend the sheriff's interlocutor only in relation to the provision for contact in the light of the concession by counsel for the petitioners.

 

37. Lastly, for the sake of completeness, I note that counsel for the second appellant made a submission that the sheriff's order did not comply with the terms of section 80(3) and 82(1)(b) of the Act. I do not, with respect follow that argument. The sheriff's order appears to me to follow the "route" of section 82 and I see no justification for change.