[1] This is an appeal against the decision of the sheriff at Dundee dated 29 November 2002 dismissing the petitioners' application for a freeing order in relation to the child C.M. who was born on 5 June 1998.

[2] The first respondent is the mother of the child C.M. The second respondent is the child's father with whom the first respondent has cohabited since 1996. The first respondent has a long history of alcohol abuse and has also abused drugs. She has suffered serious physical and mental health difficulties. The second respondent had a history of alcohol and drug abuse. He has successfully undergone a rehabilitation programme and no longer abuses drugs or alcohol. The appellants are the social work authority for Dundee City Council and are a statutory adoption agency.

[3] The history of this case is not in dispute. The appellants have been closely involved in the care of C.M. from birth. On 22 October 1998, when he was four months old, C.M. was placed on the child protection register. On 21 July 1999 a child protection order was granted by the sheriff as a result of the first respondent's excessive indulgence in alcohol and the inability of both respondents to cope with the care of C.M. Following an intensive period of rehabilitation, C.M. was returned to his parents' care on 18 January 2000. On 24 March 2000 the sheriff again granted a child protection order. C.M. was returned to his parents' care four days later on 28 March 2000, but a further child protection order was granted on 7 April 2000. C.M. has not returned to live with his parents since then. On 12 August 2002 the contact between C.M. and the respondents that had previously taken place and which had, at times, included overnight contact, was finally terminated.

[4] On 23 August 2001 the appellants' Adoption and Permanence Panel, which we shall refer to as "the panel", recommended that a freeing application be made by the appellants in respect of C.M. That recommendation was accepted by the appellants' decision-maker on 3 September 2001. On 6 December 2001 the appellants presented a petition to the sheriff seeking an order under section 18 of the Adoption (Scotland) Act 1978 declaring C.M. free for adoption and dispensing with the consent of both parents on the grounds that they were withholding their agreement to adoption unreasonably and that they had persistently failed, without reasonable cause, to safeguard and promote the child's health, development and welfare under section 16(2)(c)(i) of the Act. The petition was opposed by both parents. A proof took place before the sheriff who heard evidence over a period of 9 days in November 2002. On 26 November 2002, the sheriff ex proprio motu, raised the issue of whether the proceedings prior to the proof constituted an infringement of the respondents' rights under the European Convention on Human Rights. On 29 November 2002 a debate took place in relation to those matters. On that date the sheriff decided that the respondents' rights under both Articles 6 and 8 of the Convention had been breached and dismissed the freeing application.

[5] As we have stated above, having heard parties' submissions and having concluded that the respondents' Convention rights had been breached, the sheriff proceeded to dismiss the petition. In our view, the sheriff erred in his approach. He ought to have considered the question of what alternative remedies might be available. It was not open to him to take the view that, because he considered there had been a procedural irregularity giving rise to an infringement of rights, he would not consider the merits of the section 18 application (cf. Martin v. N. [2003] Fam L.R. 126). Before concluding that the inevitable consequence of his decision was that the petition should be dismissed he ought to have considered the possibility of making some allowance for the earlier irregularity in the decision-making process. The important point in such a situation is that any remedy to be granted must "avoid undermining the primary purpose of the proceedings themselves" (C. v. Miller 2003 S.L.T. 1379 at p. 1400). The unfortunate effect of the sheriff's decision was that the effort and expense of the nine days of proof were rendered nugatory. Further, a period of more than a year has now passed during which C.M. has remained in limbo and no progress whatsoever has been made towards the ultimate determination of the crucial issue of whether or not he is to be freed for adoption.

[6] This appeal raises the following issues: (1) whether the sheriff erred in holding that the respondents' rights under Article 6 of the European Convention on Human Rights were infringed; (2) whether the sheriff erred in holding that the respondents' Article 8 rights were infringed; (3) whether the sheriff erred in dismissing the freeing application.

[7] The making of an adoption order extinguishes any parental responsibility or parental rights relating to the child which were previously vested in a parent (section 12(3)(a) of the 1978 Act). Both respondents are "parents" of the child as defined in section 65(1) of the 1978 Act (as amended by section 98(1) of the Children (Scotland) Act 1995 "the 1995 Act"). To prepare the way for adoption the court is empowered to make an order freeing the child for adoption. Section 18 of the 1978 Act provides that the court may make such an order in the following circumstances:

1. No agreement required under subsection (1)(a) shall be dispensed with

The grounds on which a parent's consent to a freeing order can be dispensed with are therefore those that would apply in the case of an adoption petition. The effect of a freeing order is almost as significant as that of an adoption order itself. The freeing order removes from the parents their parental responsibilities and rights and transfers them to the local authority pending adoption.

[8] A local authority or registered adoption service may be referred to as an adoption agency (1978 Act, section 1(4)). Section 11 of the 1978 Act provides:

Regulation 7 of the Adoption Agencies (Scotland) Regulations 1996 (S.I. 1996 No. 3266 (S. 254)) provides that a local authority "shall appoint an adoption panel for the purpose of considering and advising on the matters specified in regulation 11," and specifies the composition of such a panel, to which we will refer as "the panel".

[9] Regulation 11 sets out the functions of adoption panels and provides:

Regulation 8 sets out the duties of an adoption agency which is a local authority prior to making an application for a freeing order under section 18 of the Act. Such an application is not to be made until the agency, having considered all the information obtained in pursuance of the regulation,

[10] In terms of Regulation 12 an adoption agency is required to make a decision within 14 days from the date of the recommendation of the adoption panel on the matters referred to in Regulation 11(1)(a), (b) or (c) and only after taking into account the relevant recommendation of that adoption panel.

[11] Regulation 18 sets out the process to be followed where the child is subject to a supervision requirement and arrangements for adoption are proposed in respect of him by an adoption agency which is a local authority. The regulation makes provision for the notification by the adoption agency to the Principal Reporter of its decision to proceed to seek a freeing order. The Principal Reporter is then required to arrange a children's hearing to review any supervision requirement and to draw up a report providing advice in respect of the proposed application under section 18 (the 1995 Act, section 73(13)). Regulation 18(3) provides that where that advice supports the decision of the agency in relation to the child concerned, the agency shall, within a period of 28 days from the date of the children's hearing make an application for an order under section 18(1) of the Act. Where the adoption agency receives a report which does not support its decision in relation to the child, it is required to review its decision and come to a further decision taking into account the report from the children's hearing (Regulation 18(4)).

[12] In the present case the panel met on 23 August 2001 when their unanimous recommendation was that C.M. was in need of permanent substitute care and that this should be achieved by adoption. The reasons for this decision were minuted as being that C.M. required a family placement which would offer him emotional support and security throughout his life, and that recent assessment had evidenced that neither parent could offer the necessary parenting skills to provide C.M. with this support and security on a permanent basis. The panel also recommended that there required to be an assessment of contact between C.M. and his parents in order to establish the quality of that contact, what function it fulfilled for C.M. and whether or not it met his needs. On 3 September 2001 the appellants' decision-maker accepted the panel's recommendation. A children's hearing for C.M. took place on 4 September 2001 when a decision was made to continue the supervision requirement, but subject to the condition that contact between C.M. and his parents was to be arranged and supervised by the social work department. A further children's hearing took place on 29 October 2001 when it was decided to advise the sheriff to free C.M. for adoption. The minute of that hearing indicates that the reason for the decision was that a final attempt at rehabilitation had been unsuccessful. The supervision requirement was to continue unvaried to allow the social work department time and opportunity to find a suitable adoptive placement for C.M.

[13] A freeing application was presented to the sheriff and a first order in the freeing petition was pronounced on 6 December 2001. A further meeting of the panel took place on 13 December 2001 when the recommendation was that C.M. be "matched" with identified prospective adopters. The decision-maker approved this recommendation on 21 December 2001.

[14] On 11 February 2002 a further children's hearing was convened and the supervision requirement was varied by deleting all previous conditions and inserting a condition that C.M. should reside with the named prospective adoptive parents. By a majority decision, the hearing decided that C.M. should have supervised contact with his parents for one hour a fortnight, as arranged by the supervising social worker. On 4 March 2002 the respondents lodged an appeal against the decision of the children's hearing of 11 February 2002. That appeal was subsequently abandoned.

[15] On 12 August 2002 a further children's hearing convened for the purpose of considering a safeguarder's report decided that contact between C.M. and his birth parents should be terminated forthwith.

[16] In accordance with the appellants' practice in such cases, the respondents were not invited to attend any of the meetings of the panel. They were invited to attend all of the children's hearings.

[17] Article 6(1) of the Convention provides, inter alia, that

Counsel for the respondents submitted that there had been a "determination" of the respondents' rights by the decisions of the panel ratified by the decision-maker. Two significant decisions had been made namely, the decision of 23 August 2001 to seek a freeing order with a view to proceeding to adoption and the decision of 13 December 2001 to place the child for adoption. Art 6(1) was engaged when the decision was one that "directly affects civil rights and obligations and is of a genuine and serious nature"(R (Alconbury Ltd) v. Environment Secretary [2003] 2 A.C. 295 per Lord Clyde at para 150). The placement decision taken on 13 December 2001 and ratified on 21 December 2001 was a crucial step in the adoption process. That decision affected the respondents' rights to have their child residing with them in their care and control and accordingly diminished the rights they enjoyed under section 2 of the 1995 Act. The panel was a statutory body that took into account facts and circumstances and the applicable law and its decision was then ratified by the decision-maker. The panel's placement of a child was a constituent part of the adoption process over which the sheriff had no control. The European Court of Human Rights recognised (W. v. United Kingdom (1987) 10 E.H.R.R. 29, at para 62) that the decision that a child should be placed with prospective adopters may well prove to be irreversible: once the child was in the de facto care of adoptive parents, bonds and attachments may be formed that it might not be in his interests to disturb. That was a consideration that could have no significant impact on the sheriff's decision.

[18] It was further submitted that the fact that the respondents were not invited to attend the meetings of the panel infringed their right to a "fair hearing" within the meaning of Article 6(1). Had they been able to attend, they would have been in a position to make representations that might have affected the panel's decisions.

[19] We do not consider that there has, as yet, been any determination of the respondents' civil rights within the meaning of Article 6. As we have seen, the adoption panel's function under regulation 11 is to consider the case of the child and make recommendations to the agency. It is for the adoption agency, on receipt of the panel's recommendations, to make a decision as to whether an application under section 18 would be in the child's best interests (regulation 12). But that decision is not, in our view, a determination of the parents' civil rights within the meaning of Article 6. It is a formulation of the strategy to be adopted. The decision of 13 December 2001 was a recommendation that C.M. be "matched" with prospective adopters. Neither decision had any operative effect on the parents' rights.

[20] The decision to vary the supervision requirement by providing that C.M. should reside with the prospective adoptive parents was one that was made by the children's hearing. That is a separately constituted body which has duties under the 1995 Act to consider the best interests of the child in the immediate future. The hearing is concerned with a temporary situation and its decision is made by reference to the best interests of the child at the time. The hearing does not require to follow the decision of the decision-maker and may decide that the child should not be moved; the sheriff does not have to be satisfied that the child has actually been placed for adoption before making a freeing order. It is sufficient if the court is "satisfied that it is likely that the child will be placed for adoption" (section 18(3) of the 1978 Act). In this connection, information to the effect that a prospective adoptive home has been identified, or is likely to be identified, will suffice. The respondents were invited to attend each of the children's hearings and they had a right of appeal against any decision made; they exercised that right in respect of the decision of 11 February 2002.

[21] While the hearing's decision to vary the supervision requirement may have weakened the respondents' position, it did not involve moving the child from their care - he has not lived with them since April 2000. Nor did it directly affect their civil rights in relation to the child. As we have seen, it is a freeing order which would extinguish the respondents' parental rights and responsibilities. No prior decision or order has any comparable legal effect. The respondents will, of course, have the opportunity of making representations before the sheriff at the hearing of the freeing application.

[22] We do not consider that the parents' absence from the panel meetings infringed their right to a fair hearing. The panel's decisions were, in our view, no more than preliminary decisions which have had no effect on the respondents' rights in respect of the child. As Collins J observed in R. v. Wokingham District Counsel, ex parte J. [1999] 2 Fam L.R. 1136 (at page 1145), if

[23] In any event, it is clear from the history of this case that, throughout the appellants' involvement with C.M., the respondents have been kept fully informed of the allegations against them and the precise nature of the concerns surrounding their ability to care for him. In this connection, it is clear from the minute of the panel's meeting of 23 August 2001 that, following an earlier decision recommending adoption, further assessments were undertaken and attempts made to rehabilitate C.M. The respondents were provided with intensive support and advice and were consulted and informed at all stages. As the court recognised in W. v. United Kingdom, "regular contacts between the social workers responsible and the parents often provide an appropriate channel for the communication of the latter's views to the authority" (at para 64).

[24] It follows from what has been said that we do not consider that the decision-making process was in any way flawed because the parents were not invited to attend the panel's meetings on 23 August 2001 and 13 December 2001. The sheriff accordingly erred, in our view, in deciding that the respondents' Article 6(1) rights were infringed.

[25] Article 8 provides:

[26] According to the European Court's established case law, "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care." (W. v. United Kingdom, para 59). It was not disputed that an order freeing a child for adoption involves an interference with the right protected by Article 8.

[27] The Court has pointed to the difference in the nature of the interests protected by Articles 6(1) and 8 and has explained that the difference between the purpose pursued by the respective safeguards afforded by each Article may justify the examination of the same set of facts under both (McMichael v. United Kingdom (1995) 20 E.H.R.R.205, para91).

[28] It was submitted on behalf of the respondents that the fact that they were unable to participate in the panel hearings when an important decision in their family life was being made involved a breach of their Article 8 rights. If they had had the prior opportunity to see the written material upon which the panel was deliberating and to be present at the meetings, they might have been in a position to influence the decisions. The fact of the child having been placed for adoption was of particular significance in relation to any decision in the freeing application. The sheriff's discretion to decide whether the child should be freed for adoption had in effect been fettered by the decision of the panel which was the only body that had determinative power in relation to the placement of the child. Effective participation by the parents was required in a situation where a decision was being made or measures were taken that were fundamental to a child's family life.

[29] We consider that in deciding whether there has been an infringement of Article 8 rights what has to be determined is "whether the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests "(W v. United Kingdom, para 64). It is clear from the extensive records kept by the appellants that, throughout the period between October 1998 and December 2001, regular communication took place between the appellants' social workers and the respondents. Frequent extended visits took place to the respondents' home and they had regular contact with the social workers responsible for CM. The decisions of 23 August and 13 December 2001 were clearly critical stages on the road to adoption. But neither decision was taken precipitately or without warning. The decision of 23 August 2001 evolved from a continuous process of monitoring on the part of the appellants' officials and frequent case reviews and case conferences. The respondents were kept informed throughout of what was required of them and of every decision taken; and they were aware of the prospect of the appellants proceeding to adoption in the event of their being unable to provide suitable care and stability for C.M. It is, in our view, significant that the decisions were not legally irrevocable, that the respondents were promptly informed of them, and that they had the opportunity to influence the course of events by attending and making representations to the children's hearing; and that they will, of course, have the opportunity to be heard before the sheriff (Scott v. United Kingdom 2000 Fam L.R. 102 at 18-98).

[30] We have reached the view in these circumstances that the respondents were given the opportunity of making their views known to the appellants, and that they have been involved in the decision-making process, seen as a whole, to a degree sufficient to afford due respect to fairness and to the protection of their interests. The respondents' Article 8 rights have accordingly not been infringed.

[31] For the reasons given, we have recalled the interlocutor of the sheriff, allowed the appeal and remitted the case to the Sheriff Court for a fresh hearing of the section 18 application. Since it is apparent from certain passages in his note that the sheriff has already reached a view on some aspects of the evidence, we consider that the new hearing should take place before a different sheriff. We also consider that it should take place quam primum.

[32] Before departing from this opinion, we consider it necessary to express our concern that proofs in cases of this kind are frequently very lengthy. More than a decade ago this court observed that

It appears that the fact that there are no detailed pleadings continues to lead to a lack of structure and an absence of defined parameters within which the case is to be conducted. In this connection we note with approval that a Practice Note (No. 2, 2004) has recently been issued by the Sheriff Principal of Lothian and Borders for the purpose of securing the efficient management of contested proceedings of this kind. It is intended to provide sheriffs and practitioners with practical guidance. It sets out a timetable with a view to securing that applications are dealt with as expeditiously as possible with the minimum of delay. It encourages active management of the case by the sheriff before the first hearing and throughout the proceedings. Before the second hearing the respondent's solicitor is required to prepare a statement of disputed issues and parties are required to have entered into a joint minute setting out the material facts in the local authority's report which are considered not to be controversial. The sheriff is directed to encourage the use of affidavits to cover contentious issues where that would save the time of witnesses and the court; to order that the report of a witness be held to be equivalent to the witness' examination in chief, unless special reasons exist for directing otherwise; to discourage the unnecessary use of expert witnesses; and to exercise his common law power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision.

[33] The clear, comprehensive and firm guidance provided in this Practice Note is likely to bring about a long overdue improvement in this area. We consider that similar guidance ought now to be provided in other sheriffdoms.