SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

B2/35/09

		DETERMINATION
		by
		SHERIFF MALCOLM GARDEN
		in
		APPLICATION FOR AN ORDER DECLARING A CHILD FREE FOR ADOPTION (UNDER THE ADOPTION (SCOTLAND) ACT 1978, SECTION 18)
		in causa
		ABERDEEN CITY COUNCIL, Town House, Broad Street, Aberdeen, AB10 1AQ. Petitioner IO and LO Respondents
		Re. child, HMCO
		_______________________________

Act: Wylie

Alt: Anderson

ABERDEEN, 8 February 2011.

The Sheriff, having resumed consideration of the cause,

FINDS IN FACT

[1] The petitioners are Aberdeen City Council. They are an adoption agency for the purposes of the Adoption (Scotland) Act 1978 and seek a freeing order in respect of child, HMCO who was born on 8 August 2005.

[2] The respondents are IO and LO respectively the father and mother of the said child. The respondents are married, are aged 33 and 37 and each hold parental rights and responsibilities in respect of the said child.

[3] The respondents have a further child, O, born on 13 February 2009. The female respondent is expecting a third child early in 2011.

[4] On 12 March 2007, HMCO sustained a scald injury to the left side of his face and was unable to weight bear on his left leg. The female respondent sought medical treatment for these problems. Both respondents reported the injuries to have resulted from HMCO attempting to reach and drink a cup of tea pulling it onto himself and falling from a chair. No bone injury was found to the leg following x-ray.

[5] On 29 March 2007, HMCO was taken by the female respondent to hospital with a swelling over his right collar bone. X-ray investigations showed this to be the result of a healing fracture. It was accepted by medical staff that this might have been caused when falling during the earlier tea scalding incident.

[6] On 12 April 2007, HMCO was taken to hospital by the female respondent who reported that on her awaking in the morning she had found him crying and unable to stand. On examination, he was found to have sustained a buckle fracture of the upper tibial metaphysis with a second associated fracture of the upper fibula at the same level. He also had a small abrasion on his left cheek with a small bruise below.

[7] The male respondent, in whose care the child had been on the previous evening reported that he believed the said injuries had been sustained accidentally when the child fell in the hallway of their flat. This explanation was not accepted by Consultant Paediatrician, witness Dr W T Houlsby.

[8] The injuries referred to in article [6] hereof were caused by the actions of the male respondent, either deliberately or recklessly.

[9] On 27 April 2007 the child's name was placed on Aberdeenshire Council's Child Protection Register under the category of risk of physical abuse.

[10] HMCO was removed from the care of the respondents pending the outcome of a children's hearing. On 27 June 2007, a referral to this Court, under Section 65 of the Children (Scotland) Act 1995, resulted in a finding that the child was likely to be impaired seriously in his health or development due to lack of parental care. The application in respect of his being a victim of a schedule 1 offence was not established at that time.

[11] Following further sundry procedure, the child was returned to the care of the respondents on 29 June 2007. The child remained on the Child Protection Register although on 18 July 2007, following a request from the respondents, was re-categorised as at risk of physical neglect.

[12] On 6 August 2007, the female respondent took HMCO to Kemnay surgery for treatment in respect of a swollen penis and relative discharge. She explained that it was believed that this had been sustained following a fall from a bouncy castle.

[13] On 1 September 2007, the respondents and child relocated to Aberdeen resulting in their social work case papers being transferred to Aberdeen City Council.

[14] On 6 November 2007, at a child protection case conference called in respect of the transfer to Aberdeen City Council, the female respondent alleged that the male respondent had assaulted her on the previous evening. She further alleged that he had assaulted HMCO, approximately four weeks previously, by throwing him and holding his face while shouting at him. The respondents separated briefly at that time.

[15] On 23 November 2007, a further case conference was held at which the female petitioner withdrew her previous allegations indicating that she wished to continue to live in a family unit with the male respondent and child. She offered no satisfactory explanation for the allegation and withdrawal thereof. HMCO was placed on Aberdeen City Council Child Protection Register now categorised as at risk of physical and emotional abuse.

[16] In or about early February 2008, the female respondent reported noting that HMCO had a swollen penis with blisters and some discharge. No medical attention was sought as the problem resolved on the following day.

[17] On 15 February 2008, the child's name was removed from the Child Protection Register in respect that the respondents were noted to be engaging and co-operating with social work services.

[18] On 17 March 2008, HMCO sustained an injury to his eye. The female respondent reported this to have resulted from the family dog knocking a CD rack which struck him on the face. This explanation was accepted by social workers.

[19] HMCO sustained a cut to his forehead following his obtaining access to a razor at the family home. No medical attention was sought nor further action considered appropriate.

[20] On 28 April 2008, HMCO was brought to hospital following a referral from the General Practitioner, who expressed concern that the injuries might be non accidental, in respect of a complaint that he was suffering from a swollen penis and bruising around the scrotal area. The medical assessment was that this had resulted from trauma. He was admitted to hospital and investigation undertaken. It was the opinion of Dr Houlsby that the injury was non- accidental and was not resultant from a medical condition as suggested by the respondents. A urinary sample was analysed and showed no evidence of infection. Further laboratory tests ruled out all probable causes other than trauma. Bruising of this nature is unusual in a child of the age of HMCO.

[21] The injuries referred to in article [20] hereof were caused by the actions of the male respondent.

[22] Further procedure was thereafter evoked in terms of the Children (Scotland) Act 1995 initially by way of Child Protection Order, on 1 May 2008, and thereafter by way of supervision requirement.

[23] HMCO has since, his discharge from hospital on 1 May 2008, been accommodated by the petitioners and has resided with foster carers.

[24] On 13 October 2008 at the petitioner's Looked after Review, a decision to proceed with permanency plans was taken. This was supported by the Adoption and Permanence Panel on 4 February 2009 and intimated to the respondents on 16 February 2009. A Children's Hearing issued supporting advice on 7 July 2009.

[25] The nature and extent of the injuries suffered by the child and the respondents' failure to accept the causes or provide an adequate explanation entitled the petitioners, with medical advice, to proceed as they did. In particular they were entitled to proceed on the basis that the injuries were non accidental.

[26] The petitioners have given appropriate consideration to all options for the care of HMCO, including return to his family, and have correctly concluded that it is appropriate that he be adopted.

[27] In the intervening period there has been supervised contact between the respondents and the child. During contact periods, a good level of relationship has been maintained between them. There remains a good parent/child bond between them. The existence of such bond does not outweigh the other factors in assessing the requirement for Adoption.

[28] Following the birth of the respondents' second child, in February 2009, procedures were evoked in terms of the Children (Scotland) Act 1995. The Children's Hearing, against social work advice, elected to return that child to the care of the respondents. He has remained in the respondents' care and has sustained no unexplained injury. The respondents' care of their second child is regarded by social work as generally acceptable. The respondents have reasonably co-operated with social work with regard to the care and upbringing of their second child. It does not follow that they can now meet all the emotional and physical needs of both children, and indeed a third child.

[29] HMCO has established a reasonable level of relationship with his younger brother within the context of the restricted interaction available during contact periods.

[30] In December 2008 and the early part of 2009, HMCO made a number of unsolicited disclosures to his foster parents stating, inter alia, "Daddy kick me about", "Daddy not kick me here", a reference to his foster home, "Daddy not hitting me now. .Daddy not kick me at your house. Not like Daddy's house. Not going to Daddy's house", "Daddy stand on me", "Daddy stand on me, he stand on my tummy" and "Daddy was bad to me at mummy's house". He also made a claim about the male respondent putting water in his mouth.

[31] During the period of the child's accommodation, the respondents have found difficulty in co-operating with social workers in an appropriate manner. This has, on occasions, manifested itself in inappropriate comments and actions, as when the female respondent advised the child that his foster parents did not want him anymore and he was being moved, this before the foster parents and social workers had properly explained to the child the true basis of the change of foster parents.

[32] The respondents' attempts to exercise control of the child's behaviour during contact periods were at times inadequate.

[33] HMCO has at times, expressed a wish to return to his family.

[34] HMCO has been the victim of violent behaviour by the male respondent and has sustained significant injury as a result.

[35] The male respondent refuses to accept responsibility for said behaviour and its consequences.

[36] The female respondent refuses to acknowledge that the male respondent has been so responsible.

[37] HMCO is aware of the abuse suffered by him and considers himself to be a child who has been physically abused.

[38] HMCO requires to live in a safe and secure environment. He requires to feel safe and secure. This cannot be achieved with the respondents while they maintain their denial of the cause of his injuries.

[39] The respondents' parenting skills have improved to the point that their care of their second child has been satisfactory and without incident. The return of HMCO to the family would result in the respondents requiring to significantly further improve their parenting and care skills, particularly in respect of the considerable difficulties now experienced by the said child and their need to acknowledge responsibility. They would probably not achieve this. Further, the respondents are about to have a third child.

[40] The loss of bond between HMCO and his parents and sibling, while unfortunate and undesirable, is outweighed by the other factors in this case.

[41] It is highly improbable that the respondents will be able to provide HMCO with the level of care, management and support necessary for him to properly develop, irrespective of further training and support.

FINDS IN FACT AND IN LAW

(1)              It is necessary to safeguard and promote the welfare of HMCO that he be freed for Adoption.

(2)              There is no better or practicable alternative to Adoption.

(3)              The making of an Order is better than there being no Order.

(4)              In terms of Section 16(2)(b) of the Adoption (Scotland) Act 1978, the respondents, IO is withholding his agreement to an adoption unreasonably.

(5)              In terms of Section 16(2)(b) of the Adoption (Scotland) Act 1978, the respondents, LO is withholding her agreement to an adoption unreasonably.

FINDS IN LAW

(1) That it remains competent for this court to make an order in terms of the Adoption (Scotland) Act 1978, Section 18 and it is appropriate to do so,

(2) That the Order made should be treated as subject to a Permanence Order in terms as set out in article 17(2) of The Adoption and Children (Scotland) Act 2007 (Commencement No.4, Transitional and Saving Provisions) Order 2009.

AND, ACCORDINGLY

(1)              Dispenses with the agreement and consent of the respondents on the ground that they are withholding same unreasonably and makes an order declaring the child, HMCO, free for adoption.

(2)              Orders that HMCO shall be treated as subject to a Permanence Order in terms as set out in article 17(2) of The Adoption and Children (Scotland) Act 2007 (Commencement No.4, Transitional and Saving Provisions) Order 2009.

(3)              Finds no expenses due to or by either party.

NOTE:

[1] This application has taken a considerable time to progress to conclusion. It was lodged on 4 August 2009 and, following upon production of the report of the reporting officer and curator ad litem called first on 9 November 2009. There were a number of continuations to resolve issues of the respondents' legal aid application and the adjustment of a note of disputed issues and joint minute of agreed facts. It was set down for a hearing on 6 and 7 May 2010. The hearing was not concluded on those two days and was continued to 28 and 29 June at which point it was decided that a report be obtained from consultant psychologist Dr Barry Fry. The hearing was continued to 1 September to await that report. The production of the report was delayed and the hearing was again continued until 14, 15 and 16 September. Again, the matter was not concluded and was continued to 2, 3 and 4 November. Evidence finally was concluded on 4 November. There have been nine days on which evidence has been led. The case was then continued to 22 December for lodging and consideration of written submissions on behalf of the parties.

[2] On that date, the solicitor for the respondents raised a point of competence and the hearing was further continued to 10 January for parties to prepare submissions on that point. On 10 January I heard parties both on the preliminary issue of competence and on submissions in respect of the petition.

Competence

[3] The respondents' solicitor submitted that the correct interpretation of the terms of The Adoption and Children (Scotland) Act 2007 (Commencement No.4, Transitional and Saving Provisions) Order 2009 ("the Order") was that any application for a child to be freed for adoption in terms of Section 18 of the Adoption (Scotland) Act 1978 became incompetent if it was not concluded, and by that I understood him to mean a decision issued, on or before 28 September 2010. He adopted the argument and submitted that I should follow the decision from Stonehaven Sheriff Court in the case Freeing Application by Aberdeenshire Council in respect of JW, unreported. The solicitor for the petitioners submitted that the case had been wrongly decided and whilst accepting that the terms of the Order were not satisfactory urged me to adopt the approach taken in Dundee City Council, Petitioners 2010 Fam LR 85 and to hold that the granting of the order was competent and indeed that it would be deemed to be a permanence order in terms of a re-written article 17(1) of the order.

[4] There is undoubtedly a potential conflict between the wording of article 18 and articles 16 and 17 of the Order. I can see the force of the argument accepted by the court in Aberdeenshire Council. I, however, respectfully decline to follow that decision. In my view, article 18 of the order makes it entirely clear that an application for a freeing order can, and indeed should, competently continue until it is determined. There is no timescale set for such determination and indeed it seems to me that it would be unusual and inappropriate for such a timescale to be set. Neither I nor the solicitors appearing in the present case were able to recall an example of a statutory procedure which, when commenced, required to be concluded within a specified time frame, which failing it became incompetent. There are a myriad of reasons for proceedings taking substantial lengths of time to conclude. Some of these will be within the control of those involved in the proceedings and some will not. In the present case, there was a delay occasioned by the fact that it was agreed that the interests of the child would best be served by obtaining a report from a child psychologist. That report was helpful and its ordering proved to be entirely justified. It would be absurd for the court, had the point been taken earlier, to have required to refuse to obtain useful and appropriate information prior to coming to a decision on such an important matter because of an arbitrarily imposed timescale. I do not agree that an overall consideration of the Order leads properly to the view that it was the intention of Parliament to have matters dealt with in such a way. I am satisfied that had that been Parliament's intention then article 18 would have made that clear.

[5] It was drawn to my attention, as indeed it was drawn to the attention of the court in Aberdeenshire Council, that the legislation applicable at the time of raising of these proceedings made it mandatory for the proceedings to be raised in their present form. It was not open to the petitioners to delay the raising of the proceedings until such time as the new procedures had come into effect. It would seem absurd for Parliament to intend to require that proceedings must be raised in a particular way but could only be determined provided that, irrespective of their nature, extent or any extraneous relevant factors, they were completed by a fixed date.

[6] It may well be that those who drafted and passed this order did so in the belief that all such proceedings would, as a matter of fact, be determined within one year but that, it seems to me, is different from an intention to impose a requirement for completion within that time.

[7] Articles 16 and 17 seem to be poorly worded. Article 16(2) deals with freeing orders having effect "until 28 September 2010" whereas article 17 deals with orders made "immediately before 28 September 2010". Accordingly, if these provisions are to be interpreted as affecting the timed competence of orders then an order made on 28 September 2010 would appear to fall within the ambit of article 16 but outwith the ambit of article 17. That clearly cannot have been the intention of those drafting the order.

[8] The issue here is one of statutory interpretation which involves an attempt to consider the intention of the Order where there is a conflict. I consider that it is appropriate to take account of the whole wording of the Order including the article headings for such guidance as can be gleaned therefrom. I do not think it appropriate to dismiss consideration of these as unhelpful as they may give an indication of what was intended rather than what was achieved. Article 16 is stated to refer to freeing orders made before the appointed day (28 September 2009). Any order made in the present proceedings could not fall within the terms of that header as it must be made after the appointed day. Given that all orders made in terms of article 18 would be made after the appointed day there is a further difficulty arising from interpretation of this article when looked at as a whole, inclusive of the header. Whatever may have been intended the header and the terms of the article do not correspond one with the other. This is a measure of the poor levels of thought and draughtsmanship which have been applied to the order and militates against any attempt to literally interpret the wording.

[9] I am satisfied that the intention of the provisions was to allow freeing order applications to continue to the point of their determination. I am satisfied that there would and ought not to have been any intention to impose a cut-off date. I strongly suspect that were there any such intention then specific provision would have been included to allow a discretionary override of any cut-off date. To do otherwise would make no sense. In the present case where, on any view, that cut-off date would have left a very tight timetable it could well have been the case that were the evidence to have been timeously concluded and my determination timeously prepared but for reasons of say illness preventing the determination being signed until 29 September, the whole proceedings would be rendered incompetent with no discretionary ability to cure that defect. I consider that it is wholly legitimate to identify the intention of the legislation as to enable proceedings legitimately commenced to be legitimately concluded. I consider for the reasons mentioned above that articles 16 and 17 have clearly been poorly drafted not simply in respect of the arguable inclusion of a cut-off point and that it is appropriate for the court, as set out in the Dundee City Council, to correct what is an obvious drafting error.

[10] It is perhaps not without irony that counsel in Aberdeenshire Council criticised the proposed wording of the Sheriff in Dundee City Council indicating that even were that wording to be applied the application would still be incompetent. That may be correct. It is, however, the case that the learned sheriff was endeavouring to ensure that a freeing order, if granted on or after 28 September 2010, would effectively be deemed to be a permanence order within the terms of the detailed provisions set out in article 17(2). In my view, it is appropriate for me to follow the broad approach set out in that case. I accept that the actual wording of article 17(1) would require further amendment. Given the poor wording of the Order it may be unwise to attempt a precise rewording of only one part thereof but I offer as a corrected version of the article the following-

17(1) - Where, immediately before, on or after 28 September 2010 a child is or is made subject to a freeing order by virtue of article 16 and/ or article 18 that child shall be treated as if they were subject to a permanence order.

[11] Such amendment would cure one difficulty which arises from the drafting of the order. It leaves article 16 to deal with, as I suspect was intended, the situation concerning freeing orders granted prior to the deemed permanence date of 28 September 2010 although it too might require amendment. This court cannot rewrite an Order as such but I agree that it can read an Order and read into an Order any necessary additional words in such a way as to enable what must have been intended. I see no reason to follow the view that article 18 is to be read as subject to article 16 and its meaning accordingly restricted. The divergence between articles 16 and 17 and article 18 can, in my view, be more appropriately resolved by reading articles 16 and 17 as above rather than reading a time restraint, which is not there, into article 18.

[12] I accordingly reject the submission that the present proceedings are incompetent and have proceeded to make an appropriate determination thereof.

Evidence

[13] I do not propose to endeavour to review the detailed evidence led over a nine day period. A considerable portion of the evidence led dealt with the procedures and approach of the social work department and the relationship and conduct of the social workers and the respondents. The evidence is fully detailed in the extended notes. The petitioners led evidence from a number of witnesses namely, Dr Houlsby, a Consultant Paediatrician, Carol Davie, a social worker and the petitioners' team manager for child protection, Kate Baillie, a social worker and the petitioners' care manager for adult services, Phyllis Cavanagh a social worker and the petitioners' practising improvement officer, formerly a senior social worker, Lynne Walger, a social worker with the petitioners, Mary McKenna, an independent consultant social worker, Doreen Diack, the child's initial foster carer, Alison McAlpine, a senior social worker with the petitioners, and Dr Barry Fry, a Consultant Psychologist. The respondents each gave evidence but led no additional witnesses.

[14] I found each of the petitioners' witnesses to be credible and reliable. They were each put under significant pressure by the respondents' solicitor. I do not consider that any of these witnesses demonstrated bias against the respondents. It is certainly the case that there was considerable tension and difficulties, to varying degrees, between the social workers and the respondents and there were some individual incidents which might have been handled better, but I am satisfied that throughout this process the social workers involved conducted themselves properly and professionally. The respondents are in a difficult position. I found them to be largely truthful but consider that their evidence was tainted by their overall approach to the process. They were not prepared to accept the views and approach of the professionals and chose to disagree with anything which did not suit their position. Their evidence and explanations on material points, such as the incurring of injuries and the withdrawn allegation by the female respondent were neither credible nor convincing. They had not generally been cooperating with the professionals over HMCO because it did not suit them to do so but had showed that they could cooperate when dealing with their second child.Their underlying claim of bias was clearly not correct as can be seen from the situation with the second child where, while it was the case that social workers had opposed that childs' return to the respondents, once it had been effected they had successfully worked with the respondents to further the relationship and in the interests of child and family. It is easy to understand the attitude of the respondents but it does not enhance their credibility as witnesses. Their attempts to explain certain incidents and statements were not convincing.

[15] In assessing the evidence I have also had regard to the terms of the documents lodged namely, the Adoption Agency Report, the Report of the Curator ad Litem and Reporting Officer, the Children's Hearing Advice and minutes of decision, the minutes of the Adoption and Fostering Panel, the minutes of the Looked after Child Reviews, the minutes of Child Protection Case Conferences, the Parenting Assessments of the respondents, Safeguarders' Reports, Medical Reports and records for HMCO, the independent Social Work Report and the report of the Consultant Physcologist.

[16] It is clear that the key to this application is the issue of the injuries sustained by the child. There was no dispute regarding those injuries. The issue in dispute was their cause. I should firstly make it clear that I am satisfied that the most serious injuries sustained by the child were indeed non-accidental by which I mean they were caused deliberately or recklessly. These injuries comprised the leg break and the bruising to the child's penis and groin area. I form this view on the basis of five strands of evidence.

[17] Firstly, there was the careful and considered opinion of Dr Houlsby that the injuries were non-accidental. I found his evidence compelling. I was urged on submission to compare that evidence with a medical report produced by Mr Scotland who is an eminent Consultant Orthopaedic surgeon but not an expert in paediatrics. His evidence was not presented to the court other than by way of his report and was therefore not subject to any scrutiny. I note that his report goes no further than the following phrase "Whilst suspicions are aroused that this injury may be non-accidental, it is conceivable that it would have been caused by an awkward combination of forces during a fall". That is hardly contrary to the more considered opinion of Dr Houlsby. As he commented it means little more than that there is no absolute certainty in assessing such matters. He was not asserting his opinion as a certainty but as one of high probability. If it is thought to be contradictory then I prefer the evidence of Dr Houlsby. This is in the context of there being a number of injuries where explanations were accepted, particularly in the case of earlier bruising where later events cast a level of doubt on the veracity of explanations accepted at the time.

[18] The second strand is the fact that the female respondent reported abuse of herself and the child at a case conference. She later retracted that allegation. In evidence she was given every opportunity to explain the making of the allegation and its retraction but could do no better than to describe it all as a big mistake. I find that explanation to be unsatisfactory. I find it frankly incredible that in a situation where she was aware that the issues under consideration principally resulted from a view that her child's injuries were non-accidental she would, through some mistaken belief that it would assist her cause, make an allegation virtually confirming that to be the case.

[19] Thirdly, I accept the evidence from the foster parent that the child made disclosures indicating that he had been kicked and stood on by his father. I did not accept the explanation given by the respondents that this would have been no more than a reference to incidents occurring when father and son were playing with a football. The nature of the disclosures and the context in which they were made clearly show them to be reference to more than that.

[20] Fourthly, I accept what I regarded as a very careful analysis of the circumstances and the child by clinical psychologist Dr Barry Fry. I concur with his assessment that these disclosures were genuine and accept his assessment that HMCO believes himself to have been subject of violent abuse.

[21] Finally, I consider it to be of significance that on each occasion when the child was taken for treatment that appears to have been instigated by his mother rather than his father. In particular, it is of significance that the leg break injuries were such that Dr Houlsby was entirely satisfied that whatever their cause they would have caused the child very considerable pain to the extent that it would be obvious to anyone at that point that he was seriously injured. Notwithstanding this, the father, whom I am satisfied caused the injury, did not take the child for treatment and settled him in bed. It was only when he awoke that his mother took him to hospital as he was apparently in pain.

[22] Each of these factors are persuasive of non accidental injury. As mentioned, it is also of significance that there were a number of other injuries sustained by the child which have not been categorised as non-accidental.

[23] Much of the respondents' case revolved around the way in which they had been treated by the social work department. I am satisfied that the social work department were entitled, on the basis of the evidence available to them, to take the view that the child's injuries were non- accidental and to act accordingly. Indeed, given the medical opinions expressed, I consider that they were bound to do so. I consider that they were therefore entitled, when faced with a denial by and no credible explanation from both parents, to adopt the approach which they did. It is, of course, understandable why there was considerable tension between the respondents and the social work department in these circumstances. It is understandable why the respondents chose to adopt the position that the injuries were accidental and having adopted that position why they then found the attitude and approach of the social workers to be unacceptable. Some of the difficulties between the parents and social workers can be explained by personality clashes but these were mainly caused by the impasse between them over the issue of injury and the clear resentment on the part of the parents at the level and extent of the interference in their family by social workers. As stated I am satisfied that the social work department acted properly. That was confirmed, in social work terms, by the independent review carried out by Mary McKenna. .

[24] Although there was some evidence of difficulties arising during periods of contact between the parents and child, it is clear that in broad and general terms contact went well and that in the context of supervised contact the parents and child created and maintained a good level of relationship as did HMCO with his younger brother. Dr Fry, in his report and evidence, identified a clear and strong attachment between HMCO and his family. He also carefully analysed the complexity of the child's emotional health and the very substantial level of requirements which would be necessary to facilitate any return to his family. Although in evidence the parents were adamant that they would make such adjustments as necessary in their approach to, and conduct of, childcare I am far from satisfied that, in the event that HMCO was returned to their care, they would achieve or maintain that level of commitment to change. As parents, they have encountered significant difficulties with the care of a single child, firstly HMCO and then his brother. They have, with social work assistance, achieved a good level of care for the younger brother but it has to be borne in mind that this is in the context of having a level of support and no other child in their care. Were HMCO to be returned to them now they would not only have him and his younger brother but very shortly a third child, all three of whom will place individual and separate demands on their parents. It seems to me to be highly improbable that in this situation the parents would be able to provide the complex levels of physical and emotional care identified by Dr Fry as being entirely necessary for the child's wellbeing.

[25] A significant factor in this case is the situation regarding the parents' second child. They have succeeded, albeit with assistance, to successfully care for that child to this point. They is argue that whatever may have occurred earlier, they have now demonstrated a satisfactory ability at childcare which in itself would justify a return of HMCO to their care. Whilst this approach has considerable superficial merit it seems to me that it cannot be followed in this case. I am persuaded from the evidence that it does not follow that demonstration of non-violence to one child can be taken to indicate that there will be no violence offered to any other child. The contraposition is also true. I am inclined to the view that, in light of all that has happened, the father in this case would not repeat any such violent conduct towards HMCO. I am satisfied that he would not intend to repeat any such conduct. In the context, however, of a family unit with three young children, of HMCO having complex and difficult emotional requirements and the background circumstances, I cannot be sure that when under this considerable pressure there would be no repeat of this conduct.

[26] It is also clear that HMCO is a boisterous, lively and, at times, difficult, little boy over whose behaviour the parents have little control. I fully accept that the parents are in a difficult position when trying to exercise control over a child taken from their care, placed elsewhere and seen by them on supervised contact periods only. It would, I think, be difficult to develop a good regime for controlling behaviour in that context. It would be tempting to allow a child in these circumstances far greater leeway than might be allowed within the same family group's home circumstances. Notwithstanding these difficulties, however, it does appear that there is considerable cause for concern about whether the parents would be in a position to impose and maintain a suitable and appropriate regime for control of his behaviour. This is a significant point given that the child's return would result in his being the eldest of a family of three young children.

[27] Whilst I am prepared to accept that some or all of these hurdles might be overcome at least to a reasonable level, the insurmountable difficulty is that the child has been physically abused, knows that he has been physically abused and would be returning to the environment of abuse without his parents accepting responsibility. The level of responsibility which they are prepared, with reluctance, to accept falls well short of what is necessary. I do not share the approach taken by the respondents' solicitor concerning Dr Fry's evidence. He certainly did canvass the issue of returning HMCO to the respondents and did refer to this as a possibility, involving much preparatory work. Overall however it was clear that he did not regard this as a viable option. Both the senior social worker and Dr Fry were clear that in these circumstances HMCO would be in an environment where he did not feel safe and appropriately reassured. The senior social workers were clear that in a situation where there has been physical abuse and where it is accepted, it is possible to work with the parents and child to prevent recurrence and to create an environment in which the child will feel comfortably safe. This cannot be done in a situation like the present where there is a refusal to accept full responsibility.

[28] I am reinforced in my view of the parents' lack of appreciation of what is required in the present circumstances by their approach to the impending birth of their third child. This will be a happy event for them and one over which they are justifiably proud. It was, however, presented to the court very much as an aside and an irrelevance to the present case which clearly it is not. No mention was made of that situation to Dr Fry during the preparation of his report. It was said that the mother was not aware of her pregnancy at that point. No mention, however, was made to Dr Fry when speaking to his report in court by which point it is acknowledged that the parents were aware of the situation. In my view, it is a significant factor and the court would have benefited from Dr Fry's view about its significance particularly in light of his comments about what would be required of the parents and their abilities to deliver those requirements. It seems to me, in absence of any comment from Dr Fry, that the difficulties which he identifies are bound to be more acute where parents acquire additional responsibilities to those already in anticipation.

[29] For these reasons I am satisfied that it would not be best for the child's welfare to be returned to the family of the respondents. There was some limited discussion about a long term fostering approach but I accept the evidence of the social workers and Dr Fry that this would not provide the necessary level of stability and structure and would be inappropriate.

[30] The overarching principle which applies in all child cases is that the welfare of the child is paramount. In assessing this application the court requires to have regard to the need to promote and safeguard the child's welfare. It also requires to consider the practicable alternatives. I am satisfied that HMCO has been the subject of physical abuse. I am satisfied that he is aware of that situation. I am satisfied that the parents are not in a position to provide HMCO with the necessary levels of emotional care, physical care and appropriate conduct regime necessary for his wellbeing. I am satisfied that in the circumstances the approach of the social work department was justified and that they have acted appropriately throughout the course of this matter. I am satisfied that the petitioners are fully aware of the religious, cultural and linguistic issues involved in placing HMCO for adoption and will be in a position to properly respect and cater for these issues. For the reasons set out above the alternatives of return to his family or long term fostering are not a better solution than adoption. I am satisfied that it is accordingly in the best interests of the child, and necessary to promote and safeguard his welfare, that he should be adopted.

[31] For these reasons I consider that reasonable parents, in the knowledge of what has occurred here and particular of the fact and nature of the physical abuse, would not have withheld their consent. I am satisfied that the parents are each acting unreasonably in continuing to withhold their consent to such adoption and that the ground referred to in section 16(2)(b) is established. Again, for the reasons set out above I am satisfied that the requirement to promote and safeguard the child's welfare will best be met by his being freed for adoption. I have accordingly granted this application.

[32] There was some limited discussion concerning continuing contact between the child and respondents after completion of this process. As I have indicated I consider that the order made here falls to be treated as a Permanence Order with the result that there is at least some scope for consideration of such arrangements, which would not have been possible under the former Adoption regime. I do not think that there is sufficient before me to express any view on whether that would or would not be appropriate. The case before me has centred on the issue of Freeing for Adoption. Comment on continuing contact has been extraneous to that and the issue has not been fully explored.

[33] There is no issue of expenses in this case and I have accordingly found no expenses due to or by either party.

Sheriff of Grampian Highland and Islands at Aberdeen.

ABERDEEN, 8 February 2011.