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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Angus Council Social Work Department, Re Application For Adoption Of HC [1998] ScotCS 6 (12 June 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/6.html Cite as: [1998] ScotCS 6

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H. J. C. was born on 22 February 1993. Her mother is the respondent, Ms Clark. She was unmarried at the time of the birth, and has not married since then. The father's name was not recorded on registration of the child's birth, and remains undisclosed to and unknown by the petitioners. In these proceedings the petitioners, who are the local authority adoption agency responsible for the child, seek a declaration freeing H. J. C. for adoption. Ms Clark opposes the application. Ms Clark has no other children. She gave birth to a further child, Ross, who was born prematurely on 5 May 1997, and died on the following day.

History of the care of H. J. C.
H. J. C.'s history was substantially agreed between parties. She was initially cared for by Ms Clark. But her care was interrupted by a number of occasions of unplanned respite care. H. J. C. was placed with an informal carer, Mrs Margaret Stibbles, between 25 and 16 March, 1 and 2 April, 6 and 7 April, 14 April and 5 May 1993, generally because Ms Clark could not care for the child. There were some periods when H. J. C. was accommodated in hospital along with Ms Clark after incidents of self abuse. Mrs Stibbles was a friend of Ms Clark. She was a local authority main stay carer, but in this case acted more frequently as friend than in any formal capacity. She was to become one of the few stable influences on H. J. C., and effectively to take on the role of grandmother. She remains an important influence in the child's life. Between 4 and 7 June 1993, there was a period of planned informal respite care of the child. Ms Clark then stated that she could not resume care, and H. J. C. was received formally into local authority care. On 7 June, Ms Clark removed the child from the carers and placed her with Mrs Stibbles. The informal placement with Mrs Stibbles was continued on 10 and 11 June, when Ms Clark stated that she could not care for the child. On 14 June 1993, the child was again placed with Mrs Stibbles when Ms Clark could not look after her. There was a similar placement between 20 and 22 July 1993. On 11 August 1993, the child was entered in the child protection register on the ground of risk of emotional abuse.

In October 1993, Ms Clark was provided with accommodation at the Ryehill Lane Project, a supported housing scheme in Dundee for young mothers where advice, support and guidance were available. A comprehensive support programme was put in place. Despite the package of support, Ms Clark continued to experience a range of difficulties in caring for H. J. C. On 25 and 26 October 1993, the child was an in-patient in Ninewells Hospital for observation following a report of sickness and diarrhoea. H. J. C. was again taken into Ninewells on 29 to 30 October 1993, when Ms Clark could not care for the child. There was planned respite care between 26 and 29 November 1993. Ms Clark could not then care for the child, and there was a period of informal respite care between 29 November and 1 December. On 6 December, the child was taken into care when Ms Clark was admitted to hospital. The following day she discharged herself from hospital and the child from care. Ms Clark was admitted to Ninewells psychiatric unit on 8 December and she and the child were accommodated there until 3 January 1994, subject to a period of planned respite between 31 December and 1 January. H. J. C. was again in care, under planned respite arrangements, between 12 and 14 January 1994. H. J. C. was then accommodated with her mother in hospital until, on 15 January, the hospital staff became concerned about her care. A place of safety warrant was obtained, and then a named place supervision order under section 44(1)(a) of the Social Work (Scotland) Act 1968.

Between 17 January and 1 August 1994, H. J. C. was in care under the section 44(1)(a) order. She was placed with Mrs Sandra Smith. Ms Clark returned to the Ryehill Lane Project accommodation. Supervised access was arranged at the Blackshade Child and Family Centre where a favourable impression was formed of Ms Clark's relationship with H. J. C.

The decision to proceed to formal orders reflected the views of the social workers that the pattern which was becoming established could not be allowed to continue. H. J. C.'s care, in placements with various people, often unplanned, meant that there was no sustained routine in her daily life. She and Ms Clark were often caught up in crises related to Ms Clark's mental health. Ms Clark frequently took her frustration out by shouting and swearing at H. J. C. In November 1993, responsibility for social work supervision of H. J. C. passed from Ms Marion Gray to Mrs Ann Robertson. She remained responsible for H. J. C. until September 1994. On 10 February 1994, Mrs Robertson was instructed to assess the viability of rehabilitation, as part of the ordinary routine of social work care. Mrs Robertson's view at the time was that Ms Clark could at times be warm and responsive, but at other times was verbally abusive, or tended to ignore those around her, depending on mood. On 21 February 1994, a decision was taken at a child in care review, with Ms Clark's agreement, to attempt rehabilitation, and thereafter an intensive programme of rehabilitation was undertaken. This involved negotiating agreements with Ms Clark in February, March and April, and regular contact between mother and child. Contact under supervision persuaded the social workers that there was an acceptable standard of care maintained, and that Ms Clark was adhering to the agreements under the care plan. Concerns at the time were related to Ms Clark's attitudes to advice about her own emotional functioning. A decision was taken to extend the process to overnight access, endorsed by the Children's Hearing on 9 June 1994. Access was built up to four nights each week. The view of the social workers in July was that Ms Clark was meeting H. J. C.'s physical and emotional needs, that she was showing a positive change in mood, could express her feelings and was beginning to resolve her personality problems. She was seeking and acting on advice, and was not showing indications of mental health problems. She was refusing psychiatric help, however, and help from a women's group at Liff Hospital. Mrs Robertson's reports at the period reflect her concern about Ms Clark's emotional deficit, both in relation to coping with her own needs, and her capacity to provide for H. J. C.'s needs. These concerns remained in June 1994, but the social workers' view by that time was that progress was being made towards rehabilitation, and Mrs Robertson's report of 7 June 1994, was generally positive in tone. The level of social work support available to Ms Clark and H. J. C. at this time was very high. There were few times when she was not directly supported or had help available on call. A proposal was made to the Children's Hearing to review the supervision conditions in July. The Hearing did not agree at that stage, but on 1 August 1994, resolved that the child be returned to Ms Clark's care subject to supervision. It was considered that there had been improvement in her emotional condition sufficient to justify returning H. J. C. to her. She had appeared to work well with Mr and Mrs Smith.

Ms Clark resumed full time care of H. J. C. on 1 August 1994. She was offered a comprehensive package of support. She accepted part of the package, making use of placement at a child and family centre, but rejected the assistance offered by the social work department as intrusive and interfering. There was almost immediate trouble. On 2 or 3 August, H. J. C. was admitted to hospital. Ms Clark reported that she had passed blood from her anus. She was kept in hospital for observation, and treated for constipation. At the time, Mrs Robertson thought that her reaction in seeking medical advice was positive, an appropriate response to concern. However, what followed undermined that view. On 5 August, Ms Clark again presented the child at hospital with the same complaint. The child was examined, and there was no basis found for the complaint. The child was examined by a general practitioner on call on 7 August at Ms Clark's request. She reported constipation. The doctor found that the child was in good health and was not constipated. Between 15 August and 13 September, Ms Clark presented the child at the doctor's surgery on five further occasions, and called the doctor on another five occasions claiming that the child was constipated. There was no complaint of constipation when the child was in care. On 24 August, Ms Clark took H. J. C. on holiday, but returned prematurely five days later. On return, they were admitted to a Women's Aid hostel in Dundee. Ms Clark claimed that she had been raped. The allegations were not substantiated. She returned to Ryehill Lane. During September, Ms Clark began to say that she was "cracking up", but could not explain further. Mrs Robertson found her progressively more vulnerable emotionally within a short period. On 22 September, Ms Clark again claimed that she had been raped. She was examined, but there was no corroboration of her complaint and no-one was charged. However, between 26 and 29 September 1994, Ms Clark and H. J. C. were again accommodated in the Women's Aid refuge following the allegation of rape. Mrs Elizabeth Ross took over responsibility from Mrs Robertson in September 1994, and has remained responsible since then. Mrs Ross's evidence was that this was a difficult period from Ms Clark. The rejection of her complaint of rape must have affected her adversely. Relationships between Ms Clark and her professional advisers and supporters began to deteriorate. She was hostile and aggressive. She refused to work with the staff at Ryehill. She would not attend meetings. Ms Clark refused the level of co-operation which was essential to the successful operation of the care offered. She withdrew the child from the child and family centre. Between 14 and 17 October, H. J. C. was taken into care by Mrs Stibbles' daughter, on an unplanned basis. On 17 October, Ms Clark removed H. J. C. from Blackshades family centre. On 31 October, Ms Clark took the child to a house in East Kilbride against advice based on prior complaints against the residents there of physical and sexual abuse. Ms Clark would not accept the social workers' views that the child was at risk. On return to Arbroath, a fresh package of support measures was put in place. Between 4 and 11 November, and again between 25 and 28 November, the child was with Mrs Stibbles on a planned basis. In November, Ms Clark and the child returned to Ryehill. Between 2 and 5 December, the child was placed with Mr and Mrs Archer on an unplanned basis when Ms Clark stated that she could not care for the child. Over November and December there was increasing concern about the quality of Ms Clark's care, attitude towards and treatment of H. J. C., and the impac

On 16 December, H. J. C. was taken to Mrs Stibbles for a period of planned respite. Ms Clark came late at night and removed the child. H. J. C. was returned on 30 December, but discharged again by Ms Clark on 2 January 1995 two days prematurely. On 4 January, the child was taken into care when Ms Clark said she could not care for H. J. C. The pattern continued with a combination of frequent planned and unplanned respite until September 1995. During 1995, Ms Clark refused to co-operate with Mrs Stibbles on a formal basis, and she was able to have H. J. C. only on an informal basis. Mr and Mrs Smith cared for the child on some occasions. On 26 June the child was placed with Mr and Mrs Phillips for the first time. H. J. C. was subject of a place of safety warrant between 11 and 17 September 1995. Ms Clark absconded with the child after hearing the decision of the Children's Hearing on 13 September. She and the child were located by the police on 17 September. A section 44(1)(a) order was made, and H. J. C. was placed with Mr and Mrs Phillips. She has remained in their care ever since.

In August 1995, Dr Sally Bonnar of the child and family psychiatry unit in Dundee was instructed to consider whether or not H. J. C.'s needs would best be met by being cared for by someone other than Ms Clark. All options remained open at that stage. A series of investigative sessions took place. Dr Bonnar had two primary goals: (a) to see if she could help Ms Clark identify with her thoughts, and (b) to establish an adult relationship with Ms Clark in the hope of moving towards a more receptive relationship.

Assessment of H. J. C.'s future by the department of child and family psychiatry continued into 1996. By 21 November 1995, the social work department anticipated that on completion of the psychiatric assessment a decision would be required to secure H. J. C.'s future either through rehabilitation or permanency. At that stage rehabilitation remained an open option. Permanency at that stage was not specific. It referred simply to any alternative to return to the mother's care. Some forms of permanent care were inappropriate having regard to the child's age according to accepted principles. Long term fostering would not have been optimum for H. J. C. But no decisions were taken. Ms Clark was not told the nature of the alternatives which were in mind at that time.

On 18 March 1996, Ms Clark removed H. J. C. from the Phillips' home, and absconded with her in a taxi which she had waiting. She did so in the face of protests from Mrs Phillips, and of warnings that there could be serious consequences. The child was recovered on 20 March by the police, and returned to the care of Mr and Mrs Phillips where she remains. On her return, she was badly behaved, used inappropriate language, was anxious and unsettled, and could not go to bed without adult company. I accepted Mrs Ross's view that this abduction had a considerable impact on the child, who continued to refer to it in an unhealthy way. Ms Clark had no appreciation of the effect of the incident on the child, nor of her own responsibility for it.

In February 1996, the children's hearing approved a further attempt at rehabilitation, and, despite the incident in March, an attempt was made to implement this decision. The child and family psychiatry and social work departments were involved. Supervised contact at an access centre was instituted in and after April 1996. The department of child and family psychiatry had completed their assessment by 5 February 1996, and had recommended that a further attempt at rehabilitation should be made. As it was put by Mrs Ross, the local authority had to be sure before they proceeded to permanency. They had to do everything they could to return the child to Ms Clark's care. But changes were required if that was to be achieved. Central to the exercise was supervised contact. Ms Clark took up the access, which was initially twice each week. There were meetings every two weeks with the department of child and family psychiatry. She was always punctual. She indulged the child with frequent and inappropriate presents and treats, and showed lack of judgement in allowing uncontrolled consumption of food. She showed limited understanding of the child's needs. She could not co-operate with the social workers, and was hostile and aggressive towards them. The child tended to follow her mother's example, and her behaviour deteriorated during and after contact.

On 6 November 1996, Mrs Ross reported on the exercise on review. It was her view that contact should be reduced, that rehabilitation should be abandoned, and that a permanent placement should be pursued. Ms Clark had already made her opposition to that plain, and had taken legal advice by that date. On this date the decision to move towards permanency was endorsed. Ms Clark did not agree, and was advised that the matter would be referred to the children's hearing.

The decision to abandon rehabilitation was a crucial decision taken in the light of Dr Bonnar' views and the views of the social work department. No one other than Ms Clark could see any prospect of rehabilitation proving successful. This common view followed a wide canvassing of professional views.

On 7 January 1997 the Children's Hearing removed the condition of the supervision requirement which provided for rehabilitation, and reduced the contact to two hours supervised per week. On 6 June 1997, Mrs Ross reported to a case review her views of the situation at that date. By then it had been concluded that rehabilitation was not in H. J. C.'s best interests, and that an application should be made for an order freeing H. J. C. for adoption.

In arriving at that view a range of options had been considered. The adoption and permanence panel met on 3 April 1997 to consider H. J. C.'s care. Alternatives to adoption were considered. These related to rehabilitation, permanent fostering, parental responsibilities order, placement with the extended family, and placement with permanent carers. All alternatives to adoption were rejected. Permanent fostering was discussed in evidence. I accepted the evidence of Mrs Ross that permanent fostering would not have met H. J. C.'s needs. It would not have safeguarded her legal position in her new family. It would have been subject to social work supervision and report, and would have been unnatural as a result. It would not have provided for her total integration into a new family with which she could identify on an equal footing with any other children within the unit. Fostering could create anxiety at review periods. The child was entitled to know of and to be present at reviews. In my opinion the correct decision was arrived at on the options considered at that time. There is no legitimate ground for criticism of the approach of the panel, unless it be over-concern to show that all options had been considered rather than getting on with the job in hand. H. J. C. needed permanence within a family relationship.

The panel considered in particular the choice between freeing for adoption and an adoption petition by prospective adoptive parents. Ms Clark's opposition to adoption in any form was a factor taken into account, in my view legitimately. The question of contact remained to be resolved. Mrs Ross's evidence was that contact was not always beneficial. Much depended on the circumstances and on the attitudes of the parties involved. In the case of H. J. C., contact was not always positive. There was increasing evidence of rejection of Ms Clark. There were concerns about Ms Clark's attempts to undermine the carers. She struggled to understand H. J. C.'s needs at times. Ultimately she could not let go and let H. J. C. establish herself with another family. It was clear that H. J. C. would have to remain in care in one form or another.

At the time of the assessment H. J. C. was about five. It was rightly considered that an urgent decision on her future was required.

Ms Clark's health
Two psychiatrists, and Ms Clark's general practitioner, Dr William Smith, gave evidence about her general and mental health. The psychiatrists were Dr Linda Treliving, consultant in psychiatry and psychotherapy at Roseangle Day Hospital in Dundee, and Dr Alan Fraser, consultant psychiatrist at Langside Priory Hospital, Glasgow, and other hospitals. There was no disagreement about the relevant background. Ms Clark had a history of multiple disorders and self mutilation. Over the years, before and after H. J. C.'s birth, she was referred to various hospitals for medical and psychiatric care. She was generally understood to have a personality disorder characterised by impulsive behaviour, self mutilation, and attention seeking.

It is unnecessary to deal in any detail with the history of Ms Clark's condition before H. J. C. was born, other than to say that she suffered many incidents of severe disturbance which continued after the birth, and which must have been a material factor in the pattern of behaviour which came to affect the care of the child. Social work involvement with H. J. C. began on 1 April 1993. On 20 April 1993, Ms Clark was admitted to Arbroath Infirmary after poisoning herself by ingesting thirty anti-depressant tablets. The incident was part of a continuing pattern of conduct. In December 1993 and January 1994, Ms Clark was admitted on several occasions to the psychiatric units at Liff and Ninewells Hospitals, and on several occasions discharged herself. She was detained under the Mental Health Act on 11 January 1994, but discharged herself as soon as the order expired, took an overdose of drugs and was re-admitted on 17 January 1994.

In March 1996, Ms Clark took an overdose of paracetamol. She was admitted to hospital for observation overnight. She then presented for assessment at hospital on a number of occasions. On 22 March, she smashed her arm through her lounge window, and was admitted to hospital.

In October 1996, Ms Clark was examined by Dr Treliving on the instructions of the social work department. At the time the social work agencies were exploring the prospects of returning H. J. C. to Ms Clark's care for the second attempt at rehabilitation already discussed. Dr Treliving's remit was to consider how much change could be expected in Ms Clark's then current presentation. She was not concerned with Ms Clark's parenting skills, but exclusively with her mental condition, and was expressly instructed as psychotherapist. As Dr Treliving acknowledged, her psychiatrist colleagues typically would have considered Ms Clark's condition to be untreatable, and for that reason would not have considered her to be mentally ill. Dr Treliving's approach was characterised by the search for a much deeper level of understanding of the patient. The exclusive nature of her focus on Ms Clark's interests, which seemed to me to be not only appropriate but admirable in the context of their relationship, to some extent limited the value of her contribution as a witness. She was clearly uncomfortable when asked questions which elicited a response critical of Ms Clark, and inclined to an optimism which may on occasion have cloaked the difficulties presented. She initially found Ms Clark a difficult patient, resentful of having been referred by social work agencies, and suspicious. Ms Clark had difficulty in asking for help and in accepting help when it was offered. But by the end of 1996 she appeared to have formed a good relationship with her key worker, Elaine Henry, and was more open. Then Ms Clark discovered that she was pregnant, and failed to keep appointments. The journey from Angus to Dundee was too difficult for her. When her son, Ross, died, her behaviour deteriorated. The reaction was typical. There was an upsurge of self-destructive behaviour. Ms Clark could not accept that there was a relationship between her loss of Ross and her behaviour. But this was a typical defence mechanism associated with her disorder which caused her to focus on her own individual position to the exclusion of all else. In May 1997 she was admitted to the psychiatric ward at Ninewells Hospital. She was discharged against medical advice, then re-admitted to Sunnyside Psychiatric Hospital, the local facility at which she could obtain psychiatric care. Dr Treliving wrote, on 23 June 1997, that she had taken an overdose and threatened suicide, resulting in her being detained under the Mental Health Act. In August 1997, she was admitted to Sunnyside following threats of self harm. By November 1997, she was not using the facilities at Roseangle and was discharged from there. Ms Clark was not treated sympathetically by Dr Keddie at Sunnyside. He considered that she was untreatable and that her behaviour and the problems associated with it should be dealt with by the police. Ms Clark tended to create chaos in the hospital, and to cause anxiety in her carers. She tended to reject assistance, and would be seen by a psychiatrist such as Dr Keddie as impossible to treat. Dr Treliving continued to see her as an out patient to bridge the gap between the end of 1997 and Dr Keddie's expected replacement, Dr Clunie, taking up post. She anticipated that Dr Clunie, who had had psychotherapy experience, would be more sympathetic. Meantime, art therapy was proposed for Ms Clark, but rejected by her. Art therapy is highly dependent on patient reaction. Ms Clark did not respond well to the art therapist. She has continued to attend informally for support each Wednesday. Dr Treliving thought that it was positive that she had been able to sustain that level of contact. Despite Dr Treliving's assessment, which was clearly a true reflection of her belief that Ms Clark could improve, it was difficult to avoid the impression that Dr Treliving will not r

In January 1998, Ms Clark was admitted to Dundee Royal Liff Hospital after threatening self harm by taking drugs and attempting to throw herself off the Tay Bridge. The background was less than clear. Dr Fraser understood that she had been feeling upset about the death of Ross. She was anxious and depressed. She then attempted to cut her wrists. Dr Treliving last saw her formally on 4 February following this series of incidents. She was told that Ms Clark's doctor had prescribed diazepam, that she had taken the drug, and had no recollection of events otherwise. Since the incidents in January, there have been no further examples of self-harm. In particular there were no episodes of self harm at or about the anniversary of Ross's death, when an adverse reaction might have been anticipated. Dr Treliving could not comment on the lack of reaction since she had not discussed the issue with Ms Clark. Dr Fraser was more optimistic. He thought that her recent behaviour, and in particular her response to the anniversary of Ross's death, might support the hypothesis that she was maturing and improving. It was important that she should now show an ability to control her emotions. Even if she were making a determined effort in the current situation, that was in his view impressive. I did not find Dr Fraser's evidence impressive. Ms Clark was clearly intelligent, though flawed in personality. There was not the slightest doubt that she understood the importance of the present proceedings for her relationship with her daughter. She knew the threat to her own position, and cannot but have been impressed by the need to demonstrate her own capacity to care for H. J. C. in the period before the proof. One does not expect proof to bring out the best in people in an objective or in a moral sense. Experience suggests that the imminence of proof or trial focuses the mind most particularly on the best advantage to be obtained. Dr Fraser commented on his contacts with Ms Clark. She gave him to understand that she was co-operating with various forms of treatment and counselling, that she was attending the hospital regularly, that she was attending bereavement counselling and sexual abuse sessions. All of this might suggest signs of improvement. Mrs O'Neil gave evidence of Ms Clark's attendance at bereavement counselling sessions. Her evidence was disturbing. Ms Clark attended sessions of her group, but did not participate. Mrs O'Neil appeared to me to have established contact with Ms Clark in a substantial sense only when she met her outside of the formal structure of bereavement counselling. She was another caring person, anxious for Ms Clark, but perhaps less than well equipped for the role she had taken on herself. It did not occur to Dr Fraser to go beyond what Ms Clark told him, or to consider whether that what he heard was a desperate cry for support at the imminent prospect of intervention by the court. I considered his assessment to be unpersuasive. He had seen Ms Clark for a short period only. His generalisations, based on an inadequate period for interview and assessment, were wholly unacceptable.

During 1997, Ms Clark was diagnosed as suffering from thyrotoxicosis, a potentially life-threatening condition, and was prescribed carbimazole. She was reluctant to take the drugs. That was a manifestation of her personality disorder, an example of the propensity to self harm. She misled her physician by claiming that she was taking the medication. Failure to comply with medical treatment was typical of her condition.

The two psychiatrists approached the problem from different points of view which may have reflected to some small degree the way they were introduced to the problem. Dr Treviling was initially instructed by the social work department. Dr Fraser was instructed by the respondent's solicitors in the course of the present proceedings. There were certain matters on which they were in agreement. Ms Clark had a long history of contact with social work agencies prior to H. J. C.'s birth as a result of emotional and behavioural difficulties. She had at all material times suffered from, and continued to suffer from, a moderate to severe personality disorder manifested in uncontrolled emotional outbursts, self-destructive activity, and the creation of anxiety and chaos around her. She has poor self control, and has a history of non-co-operation with any service which attempted to assist her, viewing all authority with suspicion. There was little difference between the psychiatrists in the description and characterisation of her general condition. Her personality disorder was psychopathic. It probably had its origins in difficulties or trauma in the early stages of her development. It was likely to be long lasting. It might be alleviated by the passage of time and relative maturity. The underlying problem was likely to be constant, but the manifestations of it were likely to be reactions to current conditions. She was likely to appear somewhat immature, in a global sense to demonstrate behaviour more appropriate to children, and to have poor impulse control. She could not tolerate stress or negative emotions. She could not learn from experience. She had a need for immediate gratification and satisfaction of her perceived needs. Her impulsiveness and poor tolerance of anxiety tended to cause her to be aggressive in situations of stress. She would incline to "act out" her reactions to stress rather than to verbalise her response, often indulging in self-abuse. Inevitably, in the circumstances, she had a long history of psychiatric treatment and care. To a greater or lesser extent it was the view of the psychiatrists that Ms Clark would improve with time. The rate of improvement, and its direction, were problematical. For most of H. J. C.'s life, the consequence of Ms Clark's condition has been that she has been unable to provide the child with consistent care of an acceptable standard, even with the support of the welfare agencies and medical professionals.

Dr Treliving's view was that Ms Clark presented features commonly experienced with adults who had been victims of sexual abuse in childhood. She had poor self esteem, had difficulty in trusting people and in forming and sustaining relationships. She had difficulty in expressing herself, tending instead to act impulsively and to harm herself as a way of "acting out" her strong emotions. During her contact with Roseangle there was some improvement, but that came to an end with her pregnancy and the death of Ross. Overall, medication had not proved beneficial in Ms Clark's case, but Dr Treliving considered that there might be further attempts made. Perhaps Dr Smith put the attitude best when he said that doctors never gave up on anyone. Ms Clark had shown the potential for change in a period of sustained contact. She had been persuaded to take her medication for thyrotoxicosis. Blood tests had demonstrated that she was taking the medication. That was a positive development.

Dr Treliving did not consider Ms Clark to be a danger to others. The inhibitions against verbal self-expression in a family affected by sexual abuse tended to lead to self-harm as a means of expression, and of drawing attention to the victim. The violence became a response to emotional disturbance, when the patient was anxious, or dependent, or in need of attention. I accepted Dr Treliving's evidence that it was very unusual for such a person to inflict harm on others. The psychotherapist sought to address the patient's problems by discussion and persuasion, seeking to create an understanding of the reaction to the emotions with a view to changing the pattern of response. Co-operation was essential to any measure of success. The relationship between the therapist and the patient was the essential foundation to progress. Progress was likely to be long term. There was engagement, and therefore some progress, between October and November 1996. Broadly, over H. J. C.'s life, the incidence of self-harm had reduced. Her future prospects would depend on psychotherapy, with support from hospital staff and careful monitoring of her development. The possibilities for change had to be measured in years rather than months. Dr Treliving did not think that there could be an improvement in six months. Dr Fraser thought that he might make a more constructive diagnosis in six months. I preferred Dr Treliving's evidence. It was based on a longer and more direct contact with Ms Clark, and it was objective, so far as Dr Treliving was able. In no sense could she be said to have been partisan in a litigation sense. In any event, Dr Fraser's plea for time took no account of the interests of H. J. C. And his assessment was likely to be destroyed by Ms Clark's response to any adverse finding in the present proceedings, a factor to which he appeared to give insufficient weight.

If H. J. C. were to be freed for adoption, the loss of the child would be perceived by Ms Clark to be worse than bereavement. Her emotional reactions would be difficult to contain. She would be very vulnerable. She would be resentful, and would find it difficult to so-operate. Dr Treliving considered that it was very unlikely that Ms Clark could co-operate with social workers or the adoptive parents of H. J. C. if she were placed for adoption. If time were taken, and psychotherapy were available, she might be more optimistic. It was difficult to predict whether Ms Clark might come to see adoption positively. Her initial reaction would be outrage. The prospect of contact with H. J. C. would be important in helping Ms Clark to address her personality disorder.

Generally, though I considered that she was over-optimistic, I preferred Dr Treliving's approach to that of Dr Fraser. Dr Fraser began his evidence by emphasising the importance of Ms Clark's baby-sitting on behalf of Ms Karen Skinner. Ms Skinner used Ms Clark as a baby sitter on a regular basis. She was led as a witness. It was my firm impression that Ms Skinner had no insight whatsoever into the mental condition of Ms Clark. She saw the care of her own children from her own point of view only. Ms Clark allowed her, in effect, to work. I was not persuaded that she had any other interest. I am conscious that this is a hard judgement on a lady introduced into this process as a witness. But she had no perception at all of the condition from which Ms Clark suffered, or of the implications it might carry for the welfare of her own children. That Dr Fraser accepted her views without question or qualification was surprising. She was not a reliable judge of what was appropriate either for her own children or for H. J. C. Her expression of opinion was of no value whatsoever in this case. In my view it was a great pity that a well-meaning, but inadequate, woman, was exposed to the rigours of litigation in circumstances which could only expose her to criticism. Dr Fraser's account of his first contact with her, of her volunteering of what he regarded as relevant information without prompting, exposed both to a charge of naiveté.

Dr Fraser considered that the probability of positive response to treatment depended on the patient. There were various types of treatment available, ranging from psychotherapy to counselling, and treatment in a specialist in-patient unit with input from clinical psychologists and psychotherapists. Each type was available. He mentioned the facility at St Andrew's in Northampton. It is unfortunate, but necessary, to say that at the end of the day Dr Fraser knew nothing of any value about the treatment at that unit. He had not studied the literature. He had not familiarised himself with the treatment provided. He had at best a casual knowledge that something was happening at the unit. I was left with the impression that he had no sufficient knowledge to have justified his introduction of the topic into what was on any view an anxious and difficult case, giving the impression of hope where he had not even the basis for faith. His evidence about what might happen at such a unit was wholly unreliable and I rejected it as unjustified speculation. Dr Smith thought that medical opinion was divided on the prospects of success in treatment.

Ms Clark's self-destructive activity had a particular impact on her care of H. J. C. Ms Clark's consistent position has been and was at the proof that the child "belonged" to her, and should be returned to her care. Ms Clark has no insight into her own mental condition. Dr Fraser thought that Ms Clark would be able to cope with adoption better if her general condition improved. I did not find his evidence acceptable on this matter. It was largely speculative.

The general practitioner, Dr Smith, spoke of his experience and the experience of his practice of Ms Clark as a general patient. I accepted his evidence. Dr Smith saw Ms Clark regularly. He was influenced by the expert advice he received from the consultants to whom Ms Clark was referred. But his evidence remained important not least because of his regular contact with her. He saw no improvement in her underlying condition. She was taking her medication for the physical condition, thyrotoxicosis, at the date of the proof. But after she had started to do so there were incidents of self injury and mutilation. She continued to present to the police and was seen at psychiatric units. He thought that what had happened in 1998 was the repeat of a pattern of behaviour he had seen in earlier years. There might be an improvement with time, but he had no idea of the timescale. Dr Smith was not an expert in psychiatry or psychology. But he was the medical man on the ground as it were. I found his evidence of what he observed to be compelling. He spoke of the impact of contact between mother and child from personal knowledge. Initial success was followed by an inability to cope. The mother was desperately keen to have the child back in her care, but there had not been the signs of stability in her behaviour required for that move. He was happy to go along with the social work recommendation that the child be taken into permanent care. There was, medically, no cure for the mother's condition. He did not accept that there had been a material improvement recently. There had been previous periods of comparative stability.

In my view it was established that Ms Clark's condition was for all practical purposes permanent. One is concerned with a timescale defined in terms of H. J. C.'s need for care. In that context there is no reasonable prospect that Ms Clark will improve to the point that her personality disorder ceases to be a material factor in assessing her ability to care for H. J. C.

Assessment of Ms Clark's care of H. J. C.
The account of Ms Clark's care of H. J. C. presents a disturbing history of an unsettled and unsatisfactory life. Inevitably, there was a heavy social work involvement with mother and child. I accepted the evidence of Mrs Robertson and of Mrs Ross as fair and truthful.

Mrs Robertson was a careful witness, and I found her assessment of the impact of Ms Clark's problems on H. J. C. reliable. She quickly became aware of the pattern of self inflicted injury, and threats of such conduct. Ms Clark had a constant need for personal support. As a result, H. J. C.'s daily needs were not met. There was no structure to her life. Recording some of the periods referred to above in H. J. C.'s history as periods of planned respite tends to cloak the reality of the life of mother and child. Ms Clark was often unable to cope with the planned structure the authorities attempted to create for her. In retrospect, Mrs Robertson was not certain that there had been a real improvement in Ms Clark's condition by the time the first rehabilitation exercise was carried into effect. In my view her reservations were well founded. Objectively, the apparent improvement must have been a function of the support Ms Clark received, and her response to it in the circumstances obtaining at the time, rather than any improvement in her own personality.

Mrs Ross set out her assessment of the position in the adoption report. Her summary of the problems experienced in 1994 and 1995 was realistic and reliable. Ms Clark was unable to offer H. J. C. consistent positive parenting. She used inappropriate language, and showed an unacceptable attitude in the presence of the child. Her relationship with the child varied with mood. She could not comply with care plans. She made unfounded complaints about the child's health. She often sought relief by passing care of the child to third parties. Her conduct affected the child's behaviour. She was incapable of appreciating her need for assistance in caring for the child and resented and resisted social work carers' efforts on her behalf. She was openly hostile to social workers and other professionals. She refused access to the child on 21 August 1995, and threatened violence to any member of staff who tried to make contact.

Prediction of the impact on H. J. C. of her experience to date is difficult. Mrs Robertson's evidence was that over the period of her responsibility there was no indication that the child was not meeting her predicted developmental stages. At the end of her period, H. J. C. was within the ordinary developmental parameters. But there were problems with establishing trust. She had lost a great deal in terms of contact with her parent. She had had to live with Ms Clark's problems. There could be problems later in her life as a result. In cross examination she resisted the suggestion that any adverse impact would have manifested itself by now. It might be when she was a teenager that one would begin to identify signs of reaction.

So far as Ms Clark was concerned, Mrs Robertson's view was that the first rehabilitation exercise did not bode well for the future. She would have expected some emotional impact from the resumption of care. At first there had been some success because H. J. C. had come home. But within a very short period Ms Clark could not cope. This led to very serious difficulties despite the high level of support available. The general indications for mother and child were not positive. She had had no direct contact since September 1995. But research and theory suggested that to try to return H. J. C. to Ms Clark would be very dangerous. For H. J. C. to continue to have contact with her mother might create difficulties for future placements. She supported the freeing application. I accepted her evidence on these matters.

Quality of contact
There was a body of evidence which suggested that contact between Ms Clark and H. J. C. was not wholly beneficial. Mrs Stibbles gave evidence. She was a caring woman with a clear insight into the situation of H. J. C. and Ms Clark. It seems inevitable that comment on her evidence will damage her relationship with Ms Clark. She was aware of the problem and recognised that the time could come when she would be confronted with a choice between her friendship with Ms Clark and her relationship with H. J. C. The future will be a matter for control by other agencies than the court. It is sufficient for present purposes to note that Mrs Stibbles presented as a mature lady with a proper insight into the difficulties which lie ahead. She gave evidence, which was wholly reliable, that H. J. C. had come to understand that she needed to have a new family, with new parents. The child knew that Ms Clark could not resume care of her. Mrs Stibbles thought that the child now needed stability, someone to call her own. Her own role was as "nana", a grandmother figure in the child's life. What the child wanted and needed was a mother and father. Cross examination tended to confirm the validity of her insights into the child's needs and wishes. Mrs Stibbles presented a picture of H. J. C. as a little girl with considerable insight into the problems of her own life. She spoke of H. J. C.'s unwillingness to speak of Ms Clark when she came for contact. Mrs Stibbles has had a natural and good relationship with the child.

Mrs Swan Mailler spoke of her observation of contact between Ms Clark and H. J. C. It appeared to me that she had formed a very poor view of Ms Clark over a long period of involvement with supervision of access. She was inclined to harsher judgement of Ms Clark than others. But, though more forcefully expressed, her evidence was to the same effect as the others who had an active part in the organisation of contact. One was left with an impression of a wholly artificial relationship. H. J. C. clearly exploited Ms Clark and manipulated her into providing regular and inappropriate presents at access. Having received the presents and explored them, the quality of contact tended to fall off during the remainder of the period.

Mrs Mustard was the volunteer driver who took H. J. C. to and from contact sessions. She was a thoroughly reliable witness. She described how en route to contact with Ms Clark, H. J. C. would happily invite her to drive by the longer of the two routes available. In the case of Mrs Stibbles she always wanted to get there as quickly as possible. She was always happy to leave her mother.

It would be easy to conclude that H. J. C. was calculating and exploitative. But the picture which emerged was rather of a little girl who appreciated the need to deal with a mother who was ill, to support access so far as she could, but to escape from it as quickly and as fully as she could. In contact she supported her mother rather the opposite way round.

In my view there was nothing in access between mother and child which it was in the child's interests to secure in the very peculiar circumstances of this case.

The child psychologists' views
Dr Bonnar reported on her views of H. J. C.'s needs on 19 December 1996. Her recommendation at that time, for reasons which were fully canvassed in her report and need not be rehearsed here, were that H. J. C. should be considered for permanent placement in foster care. She reported again on 5 May 1998. By then the proposal was that H. J. C. should be freed for adoption and that the mother should not have rights of contact. She concluded that freeing for adoption was in the child's best interests, and that continuing contact would not be in the child's best interests. I accepted her evidence. It is unnecessary to discuss her reasoning in detail. The child psychologist led by the respondent reached precisely the same view. Dr Jack Boyle was instructed by the respondent's solicitors. It was his opinion that the child should be freed for adoption, and that the sooner that happened the better. He also thought that Ms Clark should not have contact with the child thereafter. His view was that Ms Clark had no insight into her own problems. She would not understand the purpose of contact in an adoption situation. Her attitude would be destructive of the attempt to create a new family relationship. Ms Clark might be capable of playing a role from time to time, but there would be lapses. The removal of her right to a relationship with the child would be worse than the death of the child. Any improvement in her appreciation of the position would take years to bring to fruit. It was clear from his evidence that there had to be a clean break at this stage. In due course the child might seek information about her mother and contact. H. J. C. would always know that she had a biological mother other than her adoptive mother. But in the immediate future there could be no right of contact. It seems unnecessary, and less than charitable, to rehearse the evidence in detail. The conclusions of both child psychologists being the same, and for substantially the same reasons, there is no need for choice, and no benefit to be obtained from detailed analysis. Dr Boyle was independent of the petitioners' care service, he was completely objective, and his views were, in my opinion, wholly acceptable. Together they provided support for the exercise of the court's discretion, if the prescribed conditions were otherwise satisfied.

Ms Clark's evidence
I was left in no doubt by her evidence that Ms Clark's focus was wholly on her own interests. In the circumstances of this case, that is not a criticism of her. I did not consider her capable of any other view. It appeared to me that she saw H. J. C. as a possession which she was entitled to continue to have and to hold for her own sake, not the child's. She had no insight into her own condition, and appeared quite incapable of assessing the child's needs objectively in the light of that condition. She rejected all contrary views. It is likely that she will continue to reject any contrary view. There was little in her evidence on which one could rely to any extent in arriving at views which were not otherwise supported.

Prospects for adoption
Following on the decision of the adoption panel on 3 April 1997, contact was made with families who had already been considered and passed as suitable to be adoptive parents. Seven families were considered to be suitable candidates in this case, subject to matching. If a freeing order were pronounced, it is likely that a placement could be arranged quickly. I accepted Mrs Ross's evidence on this matter. Ideally, if the child were freed for adoption, she should be settled in her new environment before commencing school in August 1988.

Alternatives to adoption
There was discussion in the course of the evidence of the prospects for and relative advantages of permanent fostering. In my view it was clear beyond any question that permanent fostering would not be in the child's best interests. Mr and Mrs Phillips, the current foster parents, are about to adopt another female child, Kerry, who has been in their care for some time. They are not willing to adopt H. J. C. She was older than Kerry at introduction. Kerry had never known her natural parents. H. J. C.'s relationship with Ms Clark would be a permanent barrier to the establishment of a true parent and child relationship so far as they were concerned. Having regard to the difficulties they had experienced with Ms Clark, and with H. J. C. after contact with Ms Clark, that view was hardly surprising. Long term fostering with other foster parents would expose H. J. C. to the same range of adverse influences and conflicting emotional and intellectual problems. In addition, fostering would involve regular social work consideration of the child's welfare, regular reviews, and interviews with the child, Ms Clark, and the foster parents, along with the social works agencies. The child would never settle. The participation of Ms Clark would ensure that she never had to address the need to change her fundamental attitude towards the child. It was established that no alternative to adoption was feasible.

The law
The statutory provisions which are relevant for present purposes have been amended since last considered authoritatively. Section 18 of the Adoption (Scotland) Act 1978, as amended by the Social Work (Scotland) Act 1968 and the Children (Scotland) Act 1995, under which the present application is made, so far as material provides:

There are supplementary conditions of making an order which are, as a matter of agreement, satisfied in this case. H. J. C. is in the care of the adoption agency, meeting the requirements of section 18(2) of the 1978 Act. There was uncontested evidence that preliminary inquiries had identified a range of prospective adoptive parents, entitling one to be satisfied that it was likely that H. J. C. would be placed for adoption if freed, meeting the requirements of section 18(3). Section 18(7) was the subject of submission, but, in my opinion, is not a cause of concern in the circumstances of this case. That provision requires the court to satisfy itself, in certain circumstances, of the attitude of the father of the child to seeking parental rights and responsibilities, by agreement or by order of the court. In my opinion it is a condition of the application of that provision that there is a person who is actively asserting a claim to be the father of the child in question. In the present case Ms Clark has spoken to H. J. C. about her father: curator ad litem's report dated 31 July 1997. But the father's identity has not been revealed by her, and there is no evidence that the father knows of the child's existence or is otherwise in a position to claim to be her father. The only relevant parent, in these circumstances, is Ms Clark.

The grounds on which Ms Clark's consent to adoption may be dispensed with are set out in section 16(2) of the 1978 Act which, so far as material, is now in these terms:

In Lothian Regional Council v A. 1992 S.L.T. 858, in which these provisions were considered in an earlier form, the court held that the section 16 grounds raised issues of fact and degree which required to be resolved as such before the court proceeded to consider whether the parent's consent should be dispensed with. Further, in relation to section 16(2)(b), it was held that section 6 of the Act was relevant, in applying the objective test whether no reasonable parent would, in all the circumstances, withhold agreement to the making of an adoption order. The amendments which must now be taken into account do not, in my opinion, affect the approach to be adopted. Section 6 has been amended. It now provides:

It is appropriate in this case to consider the application of section 16(2)(c) first. Mr Small argued that in its present form the sub-section differed radically from the earlier formulation. As it stood before the court in Lothian Regional Council v A. section 16(2)(c) provided a series of cumulative tests. As amended it provided clearly two alternative tests which were mutually exclusive. The second of these alternatives was applicable in the present case: H. J. C. was not living with Ms Clark. The question therefore was whether Ms Clark had been shown to have failed persistently, without reasonable cause, to discharge the responsibility of maintaining personal relations and direct contact with the child on a regular basis. The first alternative did not arise. This question is novel, in the sense that all of the authorities to which I was referred related to the unamended provisions. In my opinion Mr Small's submissions, though well presented, were wrong. In many, if not most, cases in which a local authority applies for a freeing order, without the consent of the parent, the circumstances in which the child is in the care of the adoption agency will include fostering of the child by third parties at the time of the application. That situation is likely to have been temporary, and to have fluctuated throughout the period of local authority care. If Mr Small were correct, the court would be obliged to ignore any evidence of failure to safeguard and promote the child's health, development and welfare throughout what may have been a substantial proportion of the child's life when the parent had the child living with him or her in such a case. It is highly unlikely that Parliament contemplated such a situation. While it is perhaps less than conclusive, the implications of Mr Small's submissions would have wholly escaped the annotator of the Current Law Statutes edition of the 1995 Act. Professor Norrie comments on the revision of section 16(2):

Whether the universality of that view will prevail, only time will show. In my opinion the branches of section 16(2)(c) are not mutually exclusive. Paragraph (ii) can apply only to periods during which the child is not living with the parent. But there is no reason why each test should not apply from time to time according to whether the child has been or has not been living with the parent. In this case, had the petitioners relied on paragraph (ii) the application would have failed. Ms Clark has been diligent in maintaining direct contact and personal relations. The problems relate rather to the quality of the contact and personal relations than their regularity.

The next question which has to be considered relates to the expression "has persistently failed, without reasonable cause" in the statutory test. Wilkinson & Norrie Parent and Child, dealing with the old law, commented that the effect of Central Regional Council v B 1985 S.L.T. 413 might be that the rejection of the sheriff's approach implied that it would be irrelevant whether the parent's failure were deliberate or wholly outwith his control. They proceeded:

None of the discussion which follows touches on the problem which arises in this case. Ms Clark has no insight into her personality disorder or the impact it has on her relationship with and care of H. J. C. The examples considered in the literature relate to the significance of imprisonment, for example. There is then a potential for voluntary contribution, as it were, to the circumstance which prevents contact. Mental incapacity does not fit that model. If one adopts a purely objective test, then a psychopathic personality disorder might be thought to be a cause, but not a reasonable cause, of a pattern of conduct. Ms Clark is not insane. She is, ex hypothesi, responsible for her conduct. Her conduct is undoubtedly mitigated, in terms of moral guilt, by her disorder, but that disorder cannot be relied on as a reasonable cause of that conduct, viewed objectively.

I consider that both grounds have been made out. Objectively no reasonable parent would contemplate excusing the conduct which Ms Clark has engaged in in relation to the care of H. J. C. And, if she did, she would recognise the unreasonableness of withholding consent to adoption.

Discretion
I accepted the evidence of Mrs Ross and the view of the adoption agency that it would not be in the best interests of H. J. C. to be placed with a member of Ms Clark's extended family. There was no controversy on this issue at the proof. I accepted the reasons set out in the adoption report. Mrs Stibbles remains an important influence in the child's life. But she could not be considered as an adoptive parent, in her own view or that of the agency. Ms Clark resisted a formal relationship with Mrs Stibbles as carer, and there could be no prospect of the child's welfare being served by being placed in a situation of inevitable conflict. Her most positive role would be to continue as substitute grand-parent, if that could be maintained without prejudice to the child's welfare. However any such contact would be a matter for the adoptive parents and the agency in the future.

There is, in my opinion, no alternative on the evidence before me to freeing H. J. C. for adoption. Freeing the child would remove Ms Clark's rights and obligations in relation to H. J. C. Future contact, in particular, would be a matter over which she would have no control. To divorce natural mother and child in that way is an awesome responsibility, and the power to do so should not be exercised lightly. To do so without the natural mother having any knowledge of the identities and personalities of the prospective adoptive parents and without her being in a position to form any view or to achieve any level of acceptance of the suitability of the arrangements for her own child in a new family situation involves a denial of the natural bond of parenthood and a denial of the consolation of involvement in decisions which can only be destructive of the parent's own sense of identity and motherhood. In a case such as the present the mother must see the decision as a penalty for an involuntary mental condition which is incurable by medical treatment and beyond her own control. The risk of irreparable damage to the natural mother is real. But one must have regard to the interests of the child as a paramount consideration. It appears to me to be a legitimate consideration whether continued contact would be beneficial to H. J. C. Ms Clark is a disruptive influence in the child's life. Contact would inhibit the formation of new family ties. It would create and sustain anxiety in the child and uncertainty about her place in the new family and her relationship with Ms Clark. It is necessary to acknowledge that Ms Clark does not have a proper appreciation of the realities of her relationship with H. J. C. She believes that the relationship is good. She believes that she supports and advances that relationship be giving presents, and attending to the child as she does. But she has no perception of the reaction of the child after contact.. Knowledge of what is in the best interests of a child in his or her future life requires an insight shared by few individuals. But it appears on the evidence that all of those concerned with H. J. C. are convinced that she must be separated from Ms Clark. She needs a new home, and Ms Clark cannot be allowed to threaten her prospects there. Mrs Ross was clear in her evidence that Ms Clark would undermine a permanent placement. I think that she was correct so to conclude, having regard to recent history. Ms Clark has not demonstrated a capacity to co-operate with carers.

It appears that the child has a remarkably mature insight into her present position and future. She has come to understand that she will not return to the care of Ms Clark. She has expressed a wish to have a new mother and father. She now believes that she is to get a new mother. Once she goes to school, the need to explain her position to her peers will increase the need for a stable home background. She will require to have a mother and father to attach to.

It will be for the adoption agency to weigh the interests of H. J. C. in the future. But that is not a barrier to the course now required. The nature and frequency of any future contact are irrelevant to the decision which now requires to be taken.

There was discussion in the proof of the prospects for achieving a placement in time to avoid disruption of H. J. C.'s schooling. On any view the time is now short. But one cannot turn the clock back and accelerate the processes which have taken place. H. J. C.'s present and future interests have to be assessed as matters stand. I was not impressed that any of the perceived difficulties were of such significance as to weigh in the decision that has to be reached. The social workers have developed techniques for facilitating placement and I was satisfied that they would meet the needs of the situation.

I was referred to a number of authorities which, in the end, seemed to me to be less valuable than the facts of the case. But it may be appropriate that I list them. Mr Kelly referred to A. v B. & C. 1971 S.C.(H.L.) 129; re H. [1977] 2 All.E.R. 339; re W [1982] 3 F.L.R. 75; L. v Central Regional Council 1990 S.L.T. 818; B v C. 1996 S.L.T. 1370. Mr Small referred to Grampian Regional Council v X an unreported decision of Sheriff Principal Risk of 1 February 1994, and D. v F. 1994 S.C.C.R. 837, and a note in Green's Weekly digest of a decision of Sheriff Morrison, at 1997 G.W.D. 1297.

I shall refuse the respondent's first and second pleas-in-law and grant the prayer of the petition accordingly.