EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Clarke Lady Smith	[20112012] CSIH NO.3 [Case No.]XA86/11 OPINION OF THE COURT delivered by LADY SMITH in Petition of EAST LOTHIAN COUNCIL Petitioners; for A Permanence Order re the child LSK ("LSK") _______

Petitioners: Scott, Q.C., Loudon; Allan MacDougall

First Appellant: Bell, advocate; Balfour + Manson LLP

Second Appellant: Stirling, advocate; Bonar Mackenzie

17 January 2012

INTRODUCTION
[1] This case concerns the adoption of a young child who, for good reasons, has never lived with his mother or father. It is an appeal from the interlocutor of the Sheriff Principal dated 13 July 2011 adhering to the Sheriff's interlocutor of 6 May 2011 which granted a permanence order under the Adoption and Children (Scotland) Act 2007 ("2007 Act") in respect of the child ("LSK"). The first appellant is LSK's mother and the second appellant is his father.

BACKGROUND
LSK's Circumstances

[2] LSK is now three years old, having been born on 24 November 20112008. He has never lived with or been cared for by his natural parents, the appellants. They are feckless and immature. He has no bond with them and they have no bond with him. They would not be able to care for him properly on their own. There has been limited contact between LSK and his parents. On some occasions, they have failed to attend for contact
[1].

[3] The second appellant's behaviour has caused significant problems. He loses control and is apt to have confrontations with people with whom he does not agree. The petitioners obtained interdict against him, on 29 October 2009, from shouting, swearing, using threatening, intimidating, aggressive and inappropriate or abusive language or behaviour towards their employees. He was also, as a result of action taken by the petitioners, issued with a fourth stage anti-social behaviour policy warning on 24 March 2010. He has a history of offending including for a sexual offence - an offence which he denied having committed up until, as it was put by the sheriff, "the dawn of the proof" - and for offences of violence and he has been assessed as being at very high risk of re-offending. He is on the Sex Offenders Register. The first appellant was found to have put her relationship with the second appellant before LSK; she failed to demonstrate any commitment to her child.

LSK's grandparents would not be suitable carers for him.

[4] When interviewed by the curator ad litem in connection with his preparation of a supplementary report, in March 2011, the appellants' position was to accept that LSK would be placed in long term foster care although they would not agree to adoption.

[5] LSK is subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995 ("the 1995 Act"). He was initially in foster care. He was placed with prospective adoptive parents in May 2010 where he has a stable and safe home and has settled well. They are committed to promoting and safeguarding the future of LSK throughout his life. The placement of LSK with prospective adopters was by way of an amendment by the children's hearing to the original supervision requirement. The proposal to apply for that amendment was intimated to the appellants and reported to the Sheriff Court on 12 April 2010. The appellants did not object.

Litigation
[6] The petitioners presented a petition to the sheriff at Haddington seeking a permanence order under section .80 of the 2007 Act. The petition was opposed by the appellants. Parties were allowed to lead evidence and following an eight day proof (involving fourteen witnesses), Sheriff Gillam, by interlocutor dated 30 July 2010 (a) made a permanence order in respect of LSK, (b) extinguished the appellants' parental rights and responsibilities other than a restricted right to obtain information about him in terms of section 82, (c) granted authority for LSK to be adopted in terms of section 83 and (d) revoked an existing supervision requirement in terms of section 89(1)(b).

[7] In his order of 30 July 2010, the sheriff dispensed with the appellants' consent to his grant of authority to adopt and carefully explained in his note, under reference to the findings in fact ( which are reflected in the above summary) how and why he was satisfied that the welfare of LSK required him to do so.

[8] Prior to the proof, parties had entered into a Joint Minute in terms of which they had agreed:

"15. There is no person who has the right to have the child with him or otherwise to regulate the child's residence under section 2(1)(a) of the Children (Scotland) Act 1995.

...

49. No person has a right mentioned under 2(1)(a) of the Children (Scotland) Act 1995 as the child is subject to a Supervision Order with conditions of residence."

[9] That was, as a matter of law, wrong. The right to regulate a child's residence is a parental right ((Children (Scotland) Act 1995 s.section 2(1)(a) of the 1995 Act). Whilst there was indeed a supervision requirement in respect of LSK, under section 50 of the 1995 Act, such supervision requirements only suspend parental rights and responsibilities; they do not have the effect of withdrawing or nullifying them.

[10] The appellants appealed to the Sheriff Principal. The petitioners conceded that the above agreement in the Joint Minute was erroneous and that, as a result, the sheriff had failed to determine whether he was satisfied that it was or was likely to be seriously detrimental to LSK's welfare to reside with the appellants. He required to address that issue: section 84(5)(c) of the 2007 Act. The Sheriff Principal determined that it would not be appropriate to direct that there be a fresh hearing and, by interlocutor dated 8 March 2011, he remitted the case to the sheriff for "reconsideration with particular regard to the terms of section 84(5)(c) of the Adoption and Children (Scotland) Act 2007 and to the submissions of parties relative thereto." He also appointed the curator ad litem to prepare a supplementary report. The Sheriff Principal refused to grant leave to appeal to this court.

[11] At a subsequent procedural hearing before the sheriff, the appellants sought to persuade him that they should be allowed to lead further evidence. He refused that application and we consider that he was right to do so. It was clear from the Sheriff Principal's interlocutor that he did not envisage any further evidence being led; that was an approach which we are satisfied that he was entitled to adopt. Further, he had, appropriately in our view, provided for any updating of the relevant circumstances to be provided by way of a supplementary report from the curator ad litem, namely by an independent person appointed by the court. A hearing on the remit followed and having heard parties' submissions, the sheriff, by interlocutor dated 6 May 2011, made an additional finding in fact and law as follows:

"D and S are persons who have the right mentioned in sub-section 1(a) of Section 2 of the 1995 Act to have 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."

[12] Otherwise, he confirmed his earlier findings in fact and law and made a permanence order. In his judgment, the sheriff explained that he had had regard to his previous findings to the effect that the appellants would not be able to care for LSK properly on their own. He also had regard to (a) the fact that whilst the second appellants' parents had impressed the sheriff when they gave evidence at the proof and were, at that time, willing to support the appellants in caring for LSK, by the time of the remit hearing, matters had changed; the appellants' relationship with them had broken down, and (b) the fact that the supplementary report of the curator ad litem, far from having demonstrated that circumstances had changed so as to weigh against the granting of a permanence order, supported it; the report indicated that the curator's view had not changed and it gave himthat there was continuing cause for concern regarding the behaviour of the second appellant. He The sheriff also noted that the first appellant was pregnant and the possible presence of a new child in their household added to the uncertainty and risk so far as LSK's welfare was concerned. He said:

" Decision
As the Sheriff Principal, in his judgment has stated, before I could grant a Permanence Order I had to be satisfied that there was no person that had the right to have LSK living with them or otherwise regulate LSK's residence and, where there is such a person, LSK's residence with that person is, or is likely to be seriously detrimental to the welfare of LSK. Although I did not specifically apply that test, partly due to the terms of a joint minute agreeing that there was no such person, I did, in the course of the hearing of the 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."

[13] The appellants appealed again. In the note attached to his judgment of 13 July 2011, the Sheriff Principal observed that it was "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" (paragraph 27): a decision which, on reflection, he considered "erred on the side of caution" (paragraph 28). He referred to the sheriff's original finding that the appellants would not be able to care for LSK properly on their own and, at paragraph 30, stated:

"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."

He refused the appeal by interlocutor of 13 July 2011 and it is against that interlocutor that this appeal is brought.

Contact
[14] In his interlocutor of 30 July 2010, the sheriff made limited provision for contact:

"Allows contact on a an annual basis on the child's birthday by the petitioner providing to the parents up to date written information about the development of the child together with an updated photograph of the child all in terms of Section 82 of the Adoption and Children (Scotland) Act 2007."

[15] That is, the effect of the permanence order was to terminate direct contact between LSK and the appellants. In his interlocutor dated 6 May 2011, the sheriff repeated that same limited provision for contact.

[16] The Sheriff Principal added to it in his interlocutor of 13 July 2011 but not so as to reinstate direct contact. He provided for the insertion between the words "child" and "all" of:

"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."

Relevant Law
[17] The 1995 Act has, as its overarching principle, that the welfare of children is, in decisions relating to them, the paramount consideration. Parents have a responsibility to safeguard and promote their children's health, development and welfare
[2], to provide direction
[3] and guidance
[4], to maintain personal relations and direct contact with them
[5]and to act as the child's legal representative
[6]. It is only to enable them to fulfil those responsibilities that they are afforded parental rights: section 2 (1) provides:

"2. - (1) Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right-

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative."

[18] Parental rights may be vested in more than one person at the same time
[7] . There are, however, circumstances in which parental rights may be restricted by order of the court, including where it is anticipated that adoption may take place at a future date. This appeal concerns such circumstances.

[19] The 2007 Act came into force on 28 September 2009. It repealed and replaced the Adoption (Scotland) Act 1978, save for Part IV (and, in certain respects with which the present appeal is not concerned, it amended the 1995 Act).

[20]

The 2007 Act provided for a new type of court order called a "permanence order" by means of which the exercise of parental responsibilities and parental rights can be regulated in respect of children who cannot reside with their parents. In common with the 1995 Act, the paramountcy principle lies at the heart of the provisions for permanence orders. Section 84(4) of the 2007 Act provides:

"84. -(4) In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration."

[21]

The permanence order has a certain flexibility which was not a feature of the old "freeing for adoption" orders and can, for instance, allow for shared exercise of some parental responsibilities and parental rights. A permanence order will remove some or all parental responsibilities and parental rights from the child's parents and grant them to other persons as specified in the order.

[22] Only a local authority can apply for a permanence order.

[23] Permanence orders are defined in the Act by reference to their contents. The core element of all permanence orders is the "mandatory provision" set out in section 81 but, additionally, the order may contain such of the "ancillary provisions" listed at section 82 as the court thinks fit. The permanence order may also grant authority for the child to be adopted. In making a permanence order, the court must ensure that each parental responsibility and right in respect of the child vests in a person
[8].

[24] Section 81 specifies the mandatory provision. It vests in the applicant local authority, for the appropriate period
[9], the following parental responsibilities and parental rights: (i) the responsibility to provide to the child, in a manner appropriate to his or her stage of development, guidance
[10]; and (ii) the right to regulate the child's residence
[11].

[25] By virtue of section 87, the making of a permanence order extinguishes any parental right mentioned in section 2(1)(a) of the 1995 Act (the right to have the child live with them or otherwise to regulate the child's residence) which immediately before the making of the order was vested in a parent or guardian of the child in respect of whom the order is made.

[26] Turning to ancillary provisions, section 82(1) provides that, in addition to the core responsibilities and rights provided by the mandatory provision, the court may vest in the applicant local authority, for the appropriate period, such of the parental responsibilities listed in section 1(1)(a), (b)(i) and (d) of the 1995 Act (to promote and safeguard the child's health, development and welfare; to provide direction to the child; and to act as the child's legal representative) and such of the parental rights listed in section 2(1)(b) and (d) of that Act (to control, direct or guide the child; to act as the child's legal representative) as the court considers appropriate. Rights and responsibilities relating to contact plainly concern relationships between natural persons and cannot, therefore, be vested in a local authority.

[27] Then, under section 82(1)(b), the court may also vest in a person other than the applicant local authority, for the appropriate period, such of the parental responsibilities listed in section 1(1) of the 1995 Act and such of the parental rights listed in section 2(1)(b) to (d) of the 1995 Act in relation to the child, as it considers appropriate. Thus, for instance, at the same time as giving the mandatory rights and responsibilities to a local authority, the court may confer contact rights on a parent. The parent does not, however, retain those rights beyond the life of the permanence order; their inclusion therein has no effect on any subsequent adoption order.

[28] Regarding the adoption process, an extract of any permanence order - including any provision relating to contact - is lodged with the court
[12]and intimation to the natural parents may be ordered under rule 14(1)(f) or 15 of the Sheriff Court Adoption Rules if, in that process, the sheriff considers that they should be heard
[13]. Whilst the sheriff thus has a discretion when it comes to intimation of the adoption application, it will be incumbent on the court to consider whether or not, having regard to the whole circumstances including the parents' Convention rights there requires to be such intimation
[14]. Since the procedure involves the court being notified of any permanence order, if that order includes provision for contact between the child and a member of his natural family, we would expect the court to intimate the adoption application to any such family member, bearing in mind the article 8 rights involved. In any event, a parent whose parental responsibilities or rights have been extinguished on the making of an adoption order may apply to the court for an order for contact under section 11 of the Children (Scotland) Act 11995 Act, which was amended by s.section 107 of the 2007 Act so as to confer the right to do so on such a parent.

[29] Before making a permanence order, the court must have regard to certain matters specified in section 84(5)(b) and, under section 84(5)(c):

" 84.- (5).....

(c) be satisfied that -

(i) there is no person who has the right mentioned in subsection (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."

[30] A permanence order will include an order granting authority for adoption but only if the conditions in section 83 are met. It was not suggested, in the present case, that those conditions were not met. Rather, the attack was on the granting of any permanence order at all.

[31] Section 86 of the 2007 Act makes provision for proceedings relating to permanence orders. It provides:

"86. -(1) In any proceedings relating to an application for a permanence order, the appropriate court must permit any person mentioned in subsection (2) who wishes to make representations to the court to do so."

[32] The persons mentioned in subsection (2) include a person who has parental responsibilities or parental rights in relation to the child. Thus, in the present case, the appellants had a right to make representations but no right under the statute, to lead evidence (although, in the event, they were permitted to do so). That limitation is not surprising; the provision lies within an overall statutory scheme which includes chapter 3 of the 1995 Act, relating to the protection and supervision of children through the children's hearing system. It demonstrates that applications for permanence orders will not arrive "out of the blue". They will have been preceded by steps being taken under s.section 73 of the 1995 Act which include that the children's hearing is obliged to "draw up a report which shall provide advice in respect of .,.. the proposed application under section 80 of the 2007 Act ... for any court which may subsequently require to come to a decision, in relation to the child concerned ...",. The court considering an application for a permanence order will thus have been provided with a factual history and overview by a body which is independent of the parties and, in common with it, charged with a responsibility to treat the child's welfare as the paramount consideration. We would add that, contrary to what was submitted by Ms Stirling, whilst the relevant Convention rights (Articles 6 and 8) will generally involve the right to a hearing, it does not follow that parties must necessarily be afforded the right to lead evidence. Whether or not evidence is to be allowed is, in civil cases, a matter for each contracting state; the relevant question for convention purposes is whether, as a whole, the proceedings were fair and ensured that due respect was given to family life. Fairness, and respect for family life, will not necessarily depend on the ability to lead oral evidence.

The Appeal
[33] Ms Stirling addressed us first.

Submissions for Second Appellant
[34] At the heart of Ms Stirling's submissions was the proposition that the test set out in section 84(5)(c)(ii), which had to be satisfied before a permanence order could be granted, was a high test and the sheriff had not given it proper consideration at the time of the original hearing. He was not, accordingly, entitled to make the finding contained in his second judgment relating to section 84(5)(c)(ii). It was not a test that was in parties' contemplation at the time of the proof and it was, therefore, not appropriate to look to the sheriff's original judgment for to see whether the test was satisfied. Ms Stirling did not accept that the sheriff had, at the time of the proof, material on which he could have determined the section 84(5)(c)(ii) issue because it was not the focus of the proof and, in any event, the sheriff's findings in fact fell short of what would have been required for the test to be met. That said, she did seem to recognise that she could not suggest that finding in fact 27 should be set aside and that its subsistence presented a particularly difficult hurdle for her to overcome. At the remit stage, the sheriff should, she submitted, have considered, of new, whether the test was met. The appellants should have been allowed to lead further evidence; the Convention entitled them to do so. Also, had they been able to lead evidence at that stage, they could have challenged what she referred to as the nuances in the curator's supplementary report, a report which contained some findings which did not, in her submission, support the conclusion that the appellants were feckless and immature. That said, she did, ultimately, accept that, given the terms of the Sheriff Principal's interlocutor of 8 March 2011, it was not open to the sheriff to hear further evidence.

[35] Separately, she submitted that the sheriff was heavily influenced by the views of the curator ad litem in his supplementary report and that was inappropriate. That was in circumstances where the curator was placed in a difficult position and it was questionable whether he was open to reaching a different view about adoption of LSK from that expressed in his original report.

[36] Turning to the matter of contact, Ms Stirling submitted that there was no justification for terminating direct contact between the appellants and LSK. The sheriff ought to have considered the issue of contact as at the date of the second hearing before him. He had not give reasons for terminating direct contact. He had not considered the question of whether there should be continuing direct contact post adoption.The second appellant, in particular, had indicated to the curator ad litem, that he wanted direct contact to continue after adoption. The views of the prospective adopters were not known and there was no indication of contact being so harmful to LSK that it required to be terminated.

[37] Ms Stirling also challenged the inclusion in the permanence order of authority to adopt; it should not have been granted where the second appellant was seeking to have direct contact after adoption. He would have difficulty in protecting any right of contact in adoption proceedings given that there was no automatic right to intimation. Whilst recognising that he could apply for an order under section 11 of the 1995 Act, there would be difficulties in identifying the relevant court and the relevant defender.

[38] Ms Stirling's motion was that we should allow the appeal and dismiss the petitioner's application which failing, to recall the part of the permanence order granting authority to adopt and, to recall the order for indirect contact and, in its place, to order that there be direct supervised monthly contact pending the determination of the adoption application relating to LSK.

Submissions for the First Appellant
[39] Mr Bell adopted Ms Stirling's submissions except insofar as they were to the effect that there was no material before the sheriff which might have entitled him, in his original interlocutor, to find that the test set out in section 84(5)(c)(ii) was met. He accepted that there was such material. However, the sheriff had not addressed it at that time. Parties had not joined issue on the matter. After the Joint Minute had been entered into, the averments relating to that matter had been deleted. This was not a technical pleading point; the issue was never focussed and it was not possible to say what the evidence would have been if the proof had been conducted with it in mind.

[40] He submitted that the central question was whether or not the subsequent proceedings before the sheriff were fairly conducted? . They were not, in his submission. Additional evidence should have been allowed to be led. He accepted that the relevant statutory provisions did not require that evidence be permitted but this was a case where the appellants were two young parents who were maturing; their circumstances were undergoing change. He made reference to the first appellant's current circumstances which were different from those pertaining at the time of proof. That could, he submitted, be seen as suggesting that both the sheriff and the Sheriff Principal were going too far too fast in not allowing further proof. The tempus inspiciendum was, given the remit, May 2011, not the date of the original proof: SM v CM [2011] CSIH NO. 65 XA/10/11 at paragraph 48.

[41] Mr Bell accepted that the interlocutor remitting the case to the sheriff on the basis that there would be no further evidence led was not appealed against but all reasonable steps were, he said, taken to bring it under review. This court should be persuaded that it was an error to circumscribe the procedure in that way. In a submission which sounded very much like a belated attempt to appeal against the Sheriff Principal's refusal to grant leave to appeal against his interlocutor of 8 March 2011, he submitted that if we accepted that there had been such error, all that had followed thereafter was tainted, including the interlocutor now appealed against .

Submissions for the Respondent
[42] Mrs Scott invited us to refuse the appeal. The Sheriff Principal had not erred in his final decision, as contained in his interlocutor of 13 July 2011. The earlier procedure adopted by him when remitting the case, was a reasonable exercise of his discretion and was Convention compliant.

[43] The sheriff had, she submitted, followed through the statutory exercise prior to granting the permanence order. Whilst he had not, given the terms of the Joint Minute, expressly addressed the test in s.section 84(5)(c)(ii) of the 2007 Act, he had made findings in fact after proof which showed that it would be seriously detrimental to LSK's welfare if he were to reside with the appellants. The fact that he had dispensed with the appellants' consent to adoption showed that he was satisfied that it would be seriously deterimental to LSK's welfare to live with the appellants. The appellants could have but had not protested when the supervision requirement was amended so as to place LSK with prospective adopters.When the case was remitted, nothing of substance was put before the sheriff which showed that his previous findings should be departed from.

[44] Regarding the appellants' submissions that further evidence should have been allowed, no indication at all had been given as to what evidence they wished to lead.

[45] Regarding contact, Mrs Scott referred to the orders made by the sheriff and Sheriff Principal. She also referred to the fact that, under the relevant court rules, the permanence order would be lodged with the adoption petition. Pre and post adoption contact would be facilitated albeit that the norm was to leave matters on a voluntary basis and trust to the adopters to act appropriately and in accordance with the child's welfare. Further, if no contact took place and the appellants wished there to be contact, it would be open to them to apply to the court under section 11 of the Children(Scotland) Act 1995 Act . The wish of a parent to retain post adoption contact could not preclude the grant of a permanence order.

Decision
[46] At the time of the original proof, the sheriff did not expressly consider the test in s.section 84(5)(c)(ii) which, given parties' erroneous agreement, was entirely understandable. It is, however, plain that he gave detailed and careful consideration to the need to safeguard and promote LSK's welfare throughout his childhood both when considering whether or not to make a permanence order at all and when considering whether or not to dispense with the appellants' consent to adoption. The latter, in particular, required him to consider whether the appellants could satisfactorily discharge their parental responsibilities (see: section 83((3)(b) of the 2007 Act). In so doing he found that they could not, realistically, care properly for LSK at the time of the proof and that, looking to the future, they would not be able to care for him properly. The sheriff's conclusion was reached on the basis of findings in fact which were not challenged and from which it can, we consider, plainly be inferred that it was and would be seriously detrimental to LSK's welfare to reside with the appellants. We would refer, in particular, to finding in fact 27 in the sheriff's original judgment.

[47] The Sheriff Principal's decision to remit the case to the sheriff on the basis on which he did so in his interlocutor of 8 March 2011 was a discretionary one and was one which was open to him in the circumstances; we are not surprised that he refused to grant leave to appeal against it. We note that, whilst both Ms Stirling and Mr Bell submitted that there was unfairness in the final grant of the permanence order which stemmed from the failure to include in that interlocutor a provision entitling them to lead further evidence, other than referring to the fact of the first appellant's pregnancy (which the sheriff took account of and which was of no assistance to the appellants' case), no indication was given to the Sheriff Principal, to the sheriff, or to us, of what that evidence might have been. Nor did they indicate how or why, if accepted, it could, potentially, have persuaded the sheriff to refrain from granting the permanence order.

[48] When it came to the hearing on the remitted issue, contrary to what was submitted by Ms Stirling, having carefully considered his judgment, we are satisfied that the sheriff did properly consider it, rather than view the matter as a foregone conclusion. His reliance on his earlier findings in fact is not indicative of him having a closed mind and was entirely appropriate particularly since some of them, such as those in finding in fact 27, looked to the future. It is clear from the sheriff's second judgment that he asked himself the relevant question by reference to the whole circumstances prevailing at that time which included the update from the curator ad litem. We were are not persuaded that the sheriff had any cause to doubt the curator's independence of mind, as was suggested by Ms Stirling. In any event, contrary to what seemed to lie behind the submission, whatever his views, the decision whether or not to grant the order sought was the sheriff's, not his and from reading both of the sheriff's judgments, we are readily satisfied that he was well aware of that and exercised his own judgment in the matter.

[49] Regarding the matter of contact, first, we note that at its highest, the submission for the appellants was that there was no evidence of LSK having come to harm from there being ongoing contact. That, however, is not the test. The issue was whether or not ongoing contact would safeguard and promote LSK's welfare. Secondly, whilst neither the sheriff nor the Sheriff Principal spelt out in terms that direct contact was not to continue, it is, we consider, readily to be inferred that they did not consider that LSK's welfare would be safeguarded and promoted by continuing with direct contact. Looking ahead to the adoption process, the appellants' interest in continuing contact will be adequately protected by the intimation provisions in the relevant rules, to which we refer above, and post adoption, by the provisions of s.section 11 of the 1995 Act, always assuming that a formal order is in fact required. Otherwise, we would only add that we agree with Mrs Scott's observation that there is no basis on which the wish of a parent for continuing contact can, of itself, be relied on as being a bar to the granting of a permanence order.

[50] We will, in these circumstances, pronounce an interlocutor refusing the appeal and adhering to the interlocutor of the Sheriff Principal of 13 July 2011.

[51] Finally, we noted that copies of over 1000 pages of transcripts of evidence had been extended and were included in the Appendix for this appeal, no doubt at considerable expense to the public purse; the petitioners are a local authority and the appellants were both legally aided. We were, however, not referred to any parts of the transcripts at all during the appeal hearing and we would record our concern at what, on the face of matters, appears to have been wholly wasted expenditure.