CASE OF McMICHAEL v. THE UNITED KINGDOM
Violation of Art. 6-1 (second applicant);Violation of Art. 8;No violation of Art. 14+6-1;No violation of Art. 14+8;Non-pecuniary damage - financial award;Lack of jurisdiction (injunction to State)
C. Russo;John Freeland
6. The first applicant, Antony McMichael, and the second applicant, Margaret McMichael, live in Glasgow. They were born in 1938 and 1954 respectively and were married on 24 April 1990. 7. On 29 November 1987 the second applicant gave birth to a son, A. The first applicant, who was then known as Antony Dench, and the second applicant, were living together, although at that time each had their own home. At the time the second applicant expressly denied that the first applicant was A.’s father. The child’s father was not identified on the birth certificate. 8. The second applicant had a history of severe and recurrent mental illness, diagnosed as manic depressive psychosis. She had first been ill in or about 1973 and had thereafter been compulsorily admitted to psychiatric hospitals on a number of occasions. While she and A. were still in hospital after the birth, Dr R., the consultant psychiatrist who had treated her since 1985, found that she was suffering from a recurrence of her mental illness. He considered that if she were to go home with A., the child would be at risk. As a result, on 11 December 1987 the social work department of Strathclyde Regional Council ("the Council") - this being the local government body having statutory responsibilities relating to the welfare of children in Glasgow and the surrounding area - applied for and were granted an order known as a "place-of-safety order", in accordance with section 37 (2) of the Social Work (Scotland) Act 1968 ("the 1968 Act") (see paragraph 50 below for an explanation as to such orders). The effect of this order was to authorise the Council to keep A. in the hospital for a period not exceeding seven days. The second applicant was informed and advised to seek legal advice. 9. The Reporter to the Children’s Panel for Strathclyde Region, being of the view that A. might be in need of compulsory measures of care, arranged for a "children’s hearing" to be convened, in accordance with section 37 (4) of the 1968 Act (as to the functions of the Reporter and the nature of children’s hearings, see paragraphs 46, 47, 50 and 51 below). The ground of referral of the case to the children’s hearing was that "a lack of parental care [was] likely to cause [A.] unnecessary suffering or seriously to impair his health or development", this being one of the statutory grounds provided for under section 32 of the 1968 Act (see paragraph 48 below). In support of the ground of referral, the following statement of facts was given: "(1) ... (2) That the parent suffers from a major psychiatric illness. (3) That the parent refuses to take medication to stabilise her condition when not an in-patient at psychiatric hospital. (4) That the parent has required to be admitted to psychiatric hospital on emergency basis ... on 5 June 1986, 5 December 1986 and 31 December 1986. (5) That due to her psychiatric condition the parent is unlikely to be able to care adequately for the child." 10. At the children’s hearing on 17 December 1987 the chairman explained to the second applicant the reasons stated by the Reporter for the referral of the case. She indicated that she did not accept the ground of referral and, in particular, disputed paragraphs 2, 3 and 5 of the statement of facts. The children’s hearing accordingly instructed the Reporter to apply to the Sheriff Court (the local court) for a finding as to whether the ground of referral was established, in accordance with section 42 of the 1968 Act (see paragraph 54 below). The children’s hearing also issued a warrant under section 37 (4) of the 1968 Act for A.’s continued detention in a place of safety until 6 January 1988 (see paragraph 50 below). A subsequent warrant was granted by a further children’s hearing on 5 January 1988. 11. On 23 December 1987 A. was discharged from hospital and taken to foster parents at Greenock, twenty-four miles from Glasgow. He has remained with them since then. On the same day the second applicant discharged herself from hospital. Arrangements were made for her to be taken three times a week for access visits to A. at the foster home, under the supervision of the social work department. The first applicant, who also has a history of mental illness, was not included at this stage in the access arrangements. The principal reason for this was that the second applicant continued to deny that he was A.’s father and he did not himself make any claim to be the father. Other reasons were his aggressive and threatening attitude and his refusal to give information about his background. 12. The second applicant complained about the placement in Greenock and inadequacy of access arrangements. At first she accepted the exclusion of the first applicant, but she and the first applicant subsequently complained about that also. She failed to appear for four of the access visits between 31 December 1987 and 18 January 1988. 13. On 21 January 1988 the Reporter’s application for a finding on the ground of referral was heard in the Glasgow Sheriff Court. The second applicant was present and represented by a solicitor. The first applicant also attended. The Reporter led oral evidence from medical, nursery and social work witnesses, including Dr R. The first and second applicants both gave evidence. There was no documentary evidence before the court other than the ground of referral and statement of facts (referred to above in paragraph 9). At the conclusion of the hearing the Sheriff found the ground of referral established. He remitted the case to the Reporter for him to arrange a children’s hearing to dispose of the case. The second applicant did not appeal to the Court of Session (the supreme civil court in Scotland). On an application by the Reporter and after hearing submissions on behalf of the Reporter and the second applicant, the Sheriff also granted a warrant for A.’s continued detention in a place of safety for a further period not exceeding twenty-one days. 14. On 27 January 1988, the social work department held a meeting known as a "child care review", to consider the case. Both applicants were present. The consultant psychiatrist, Dr R., advised that the second applicant was seriously mentally ill but was unwilling to accept treatment. It was decided that access should be terminated, though this decision would be reviewed if the second applicant’s mental state improved. The first applicant had also requested access at the meeting, claiming for the first time that he was A.’s father. Access was refused since the second applicant continued to maintain that he was not the father. The social work department also took into account his aggressive and threatening attitude and his continuing refusal to provide information about himself. 15. On 4 February 1988 a children’s hearing was held to consider the need for compulsory measures of care for A. The second applicant attended, with the first applicant as her representative. The hearing had a number of documents before it, including a report of 28 January 1988 on the child compiled by the social work department, reviewing the history of the case and proposing that A. continue to reside in the foster home. In accordance with the relevant procedural rules (as contained in the Children’s Hearings (Scotland) Rules 1986 - "the 1986 Rules"; see paragraph 57 below), these documents were not produced to the applicants, but the chairman informed them of their substance. The children’s hearing decided that A. did need compulsory measures of care. They therefore made a supervision requirement under section 44 (1) (a) of the 1968 Act, placing A. under the supervision of the Council subject to the condition that he reside with the foster parents in Greenock (as to supervision requirements, see paragraphs 58 to 60 below). The decision was based, inter alia, on the mental health of both applicants, their aggressive and hostile behaviour and the second applicant’s refusal to seek psychiatric help and treatment. This decision did not make any provision as to access. In such circumstances the presumption is that parents will be given reasonable access, subject to section 20 (1) of the 1968 Act which empowers a local authority to deny access where necessary for the child’s welfare. 16. On 6 February 1988 the second applicant was admitted to a psychiatric hospital, initially as a voluntary patient and, as from 10 February, on an involuntary basis. She returned home in June 1988. 17. The second applicant (while in psychiatric hospital) appealed to the Sheriff Court against the decision of the children’s hearing. All the documents that had been before the children’s hearing were lodged with the Sheriff Court. It would appear that, in accordance with the normal procedure (as to which, see paragraph 61 below), they were not made available to the second applicant. She attended the appeal hearing on 29 February 1988, accompanied by two nurses. She was obviously under heavy sedation and was unrepresented. Following discussion, the Sheriff enquired whether she would prefer to ask for a review by a children’s hearing of the supervision requirement, rather than pursue her appeal. The second applicant agreed. The appeal was accordingly held to have been abandoned. 18. A review was held by the social work department on 27 April 1988. Both applicants attended, the second applicant having been allowed home on leave from the psychiatric hospital. In view of the second applicant’s improved mental state, it was decided to grant her supervised access to A. By this time, the second applicant had agreed that the first applicant was A.’s father. On 18 February 1988 his name had been added to the birth certificate. This did not, however, give him parental rights (as to which, see paragraph 43 below). At the review, the Council decided not to grant him access until he gave them information about his background, which he had so far refused to do. Visits by the second applicant to A. at the foster home, under the supervision of a social worker, began on 26 May 1988 and continued until September 1988. 19. On 24 August 1988, solicitors acting for the first applicant applied to the Scottish Legal Aid Board for legal aid for an action against the Council in the Court of Session to obtain custody of A. or, failing that, access to him. The Board refused legal aid on the basis that it was unreasonable that he should receive legal aid in the particular circumstances and that it had not been shown that there was a probable cause of action. Counsel then advised the first applicant that the proposed action was incompetent and that it would be appropriate to pursue the question of access by seeking a children’s hearing to review the supervision requirement. 20. On 20 September 1988 the social work department held a further child care review. Neither applicant attended but the second applicant was represented by a clergyman. The department had previously held meetings with the first applicant to obtain background information about him and, with his consent, made inquiries with his doctor and the police. It was decided to allow both applicants access of three supervised visits per week at a special centre and to give assistance to them in learning parenting skills. The position was to be reassessed after three months. Access at the centre began on 4 October 1988. 21. On 13 October 1988 the children’s hearing held a review of the supervision requirement. The second applicant was present and the first applicant attended as her representative. The hearing had before it a report by the social work department dated 20 September 1988, updating information on A. The report also contained a statement that the second applicant was refusing to take the medication prescribed for her, an account of the proposed arrangements for access and a recommendation that the supervision requirement should continue pending assessment of the proposed access for the next three months. In accordance with the relevant procedural rules (see paragraph 57 below), this report was not disclosed to the applicants, though the chairman informed them of its substance. The applicants had submitted a statement maintaining that in their view the ground of referral was not justified, as they had never had an opportunity to show that they could care for A. The children’s hearing decided to continue the supervision requirement and to approve the access proposals. The hearing considered that only time would show if A.’s return to the care of the applicants was a viable prospect and that the second applicant’s mental health should be closely monitored. The second applicant did not appeal to the Sheriff Court. 22. Between 4 October and 19 December 1988, the applicants made approximately twenty-three access visits to A. The social workers did not consider the visits to be a success. In reports dated 22 November 1988 by a health visitor and 23 November by a medical officer, it was stated that the applicants frequently argued before A. and displayed aggression to the staff, with the result that they were excluded from two child care centres. They appeared to be unable to accept or follow advice on child care. 23. On 19 December 1988 a child care review was held, at which the applicants were present. The meeting noted that no obvious progress had been made in the applicants’ ability to care for A. It was decided to terminate access visits in view of concern about the long-term effects on A. if access were to continue without any real prospect of his returning to the care of his natural parents. It was also decided to investigate the option of freeing A. for adoption. The applicants appealed internally to the District Manager of Social Services, who confirmed the decision by letter of 28 December 1988 in which he recommended them to obtain legal advice. 24. Following a request by the second applicant, a children’s hearing carried out a review of the supervision requirement on 20 June 1989. The second applicant was present with the first applicant as her representative. The Reporter provided the hearing with a further report by the social work department, updating the information on A. It described the problems experienced during the access period, and reported that A. was happy and developing well in his foster home and that prospective adopters were being sought. Also presented to the hearing were the documents that had been before previous hearings. The applicants asked for access to be re-established. The hearing considered that there might be a conflict of interest between the second applicant and A. They therefore adjourned the hearing to allow for the appointment of a "safeguarder", that is an independent person to represent the interests of the child (as to which, see paragraph 53 below). 25. The safeguarder, once appointed, interviewed the applicants, the social workers, the foster parents and the police. His report of 18 August 1989 stated, amongst other things, that A. was being adequately cared for by the foster parents and that it was desirable that the second applicant should obtain a doctor’s opinion on her present psychiatric condition. 26. The adjourned children’s hearing reconvened on 5 September 1989. The applicants were present, the second applicant being represented by a solicitor. In accordance with the relevant procedural rules (see paragraph 57 below), the safeguarder’s report and the other documents before the hearing were not disclosed to the applicants, but the chairman informed them of the substance. Also before the hearing were written submissions by the applicants stating their ability to care for A. and the unfairness of judging them on the basis of three months’ intensive access. The safeguarder attended the hearing and confirmed his view that A.’s best interests would be served by his remaining in care. The hearing concluded that the supervision requirement should continue and that there was nothing in what they had heard to convince them that they should grant access. They did not take up a suggestion by the second applicant’s solicitor to grant a further adjournment in order to obtain an independent psychiatric report on the second applicant. 27. The second applicant appealed to the Sheriff Court on the grounds that: (a) the applicants had not been informed of the substance of the documents produced at the hearing; (b) the refusal of access was based on inadequate information, in particular the lack of up-to-date information as to the second applicant’s mental health; and (c) the refusal to adjourn the hearing for the purpose of obtaining a psychiatric report on the second applicant’s current mental health was manifestly unreasonable. In the event ground (a) was withdrawn. At the appeal hearing on 4 October 1989 the Sheriff decided that it would have been appropriate to obtain a psychiatric report. He therefore allowed the appeal and remitted the case to the children’s hearing. 28. In the meantime, a psychiatric report, dated 29 September 1989, had been produced at the request of the second applicant’s solicitors. This report stated that the second applicant suffered from a recurrent mental illness, which was however in remission and which, if it recurred, would respond satisfactorily to treatment as in the past. The psychiatrist considered that access should be re-established and that A. could eventually be returned to the applicants. 29. A children’s hearing was held on 12 December 1989 to reconsider the case, as directed by the Sheriff (see paragraph 27 above). The hearing was adjourned at the request of the solicitor representing the second applicant, in order to allow the psychiatrist to submit a fuller report. 30. A children’s hearing was held on 9 January 1990, but neither applicant attended or was represented. The hearing was told that the second applicant had been declared insane and admitted to a psychiatric hospital. A further hearing was held on 18 January 1990. Neither applicant attended or was represented. The hearing concluded that the second applicant was not well enough to have access to A. and that they could not see any future for A. with her. A condition was added to the supervision requirement that there be no access by the second applicant. The second applicant did not appeal to the Sheriff Court. 31. On 1 February 1990 the Council lodged with the Sheriff Court a petition to free A. for adoption. 32. The applicants were married on 24 April 1990. The first applicant thereby obtained parental rights in respect of A. (as to which, see paragraphs 42 and 43 below). 33. The petition was heard between 18 June 1990 and 27 July 1990. The applicants, as parents, refused to give their consent to adoption. They were present at the hearing. The first applicant conducted his own case, whereas the second applicant was represented by a solicitor. The documentary evidence before the court had been disclosed to the applicants. Witnesses were heard. The applicants had the opportunity to cross-examine all witnesses led by the Council, as well as to lead their own evidence. 34. The Sheriff delivered his judgment on 14 October 1990, the second applicant having in the meantime been re-admitted to hospital on 12 August. He decided that the applicants were withholding their consent unreasonably and that, accordingly, their consent should be dispensed with. He therefore granted the order freeing A. for adoption. His judgment contained a detailed description of the second applicant’s history of mental illness and of the problems that had occurred during access visits. His findings included the following: "Mrs McMichael is incapable of having permanent care of the child [A.] because of the severity and unpredictability of her illness. When she is actively ill it would be unsafe for the child to be in her care. ... The natural parents have no understanding of what is meant by loving and caring for a child and have demonstrated an inability either to learn such skills, or to want to learn them. It is in the interests of the child’s welfare that he be freed for adoption. The natural parents are both emotionally and intellectually incapable of giving the child a secure and stable environment. If he were in their care he would be liable to suffer emotional deprivation and, because of their inability physically to care for him, could be in situations of danger." The Sheriff concluded: "In my view, there is no escaping from the conclusion that both these parents are withholding their agreement unreasonably. They are withholding their agreement because they are not parents who have begun to demonstrate their capacity to have custody. Mrs McMichael suffers from a grave mental illness which may at any time, unless appropriate medical treatment is taken, incapacitate her from looking after, not only a child, but herself. Even when her illness is not to the degree at which hospitalisation is required, she has been demonstrated as incapable of the most elementary physical and emotional capacities in parenting. The one capacity she does have, I accept, is the desire to be a parent, to have the child, but the accomplishment of that ambition is, I fear, demonstrated to be beyond her. The incapacity of the father to behave normally as a parent to the child is established by the evidence of Mrs [K. (the health visitor)] and Mrs [M. (from the social work department)], whose testimonies support the findings in fact I have made relating to access visits ..." 35. In December 1990 the applicants appealed to the Court of Session against the Sheriff’s decision. 36. The applicants were granted legal aid. Counsel and solicitors’ advice was that an appeal had no prospects of success at all and should be abandoned. The applicants did not accept this advice and continued with the appeal, without legal assistance. 37. The appeal was dismissed by the Court of Session on 1 November 1991. The court held that the Sheriff was justified in concluding that, because of the mental health of the second applicant and the first and second applicants’ lack of understanding how to care properly for a child, it would have been contrary to the best interests of A. to return him to the applicants’ custody. 38. In the meantime, on 18 July 1991, a children’s hearing had decided that the supervision requirement should continue. A similar decision was made subsequently by another children’s hearing on 9 June 1992. 39. At a children’s hearing held on 4 May 1993 it was announced that the foster parents with whom A. had been living since 23 December 1987 intended to adopt him. The children’s hearing decided that the supervision requirement should continue, with a condition that A. should reside with the foster parents. 40. On 25 May 1993 the application by the foster parents to adopt A. was granted by the Sheriff. The effect of the adoption order was to vest in the adoptive parents all parental rights and duties relating to A. 41. On 21 September 1993 a children’s hearing decided that the supervision requirement should be terminated, as A. had been adopted and all reports on his welfare were favourable. 42. Under Scots law the nature of the rights enjoyed by parents in relation to their children is governed by the common law. In respect of girls under 12 and boys under 14, parents enjoy, inter alia, (a) the right of tutory, which can be described as the right to administer the child’s property and to act legally on behalf of the child; (b) the right of custody, which can be described as the right of the parent to have the child living with him or her, or otherwise to negotiate the child’s residence and to control the child’s day-to-day upbringing; (c) the right to access. 43. The position as to the persons who may exercise parental rights is regulated by the Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act"). In general the 1986 Act abolished the legal distinctions between children born in and out of wedlock. However, in relation to parental rights a distinction persists, as appears from section 2 (1) which provides: "(a) a child’s mother shall have parental rights whether or not she is or has been married to the child’s father; (b) a child’s father shall have parental rights only if he is married to the child’s mother or was married to her at the time of the child’s conception or subsequently." Section 2 (1) is in turn subject to section 3, which enables any person claiming an interest to make an application to court for an order relating to parental rights (subsection (1)). The court, which is bound to regard the welfare of the child as the paramount consideration, may not make such an order unless satisfied that to do so would be in the interests of the child (subsection (2)). The natural father of a child born out of wedlock (who is not automatically entitled under section 2 (1)) may obtain parental rights (including tutory, custody or access) under this procedure by applying to either the Court of Session or the local Sheriff Court. Where the mother consents, the matter will be dealt with expeditiously. 44. The arrangements in Scotland for dealing with children who may need compulsory measures of care are set out in Part III of the 1968 Act, as supplemented by subordinate legislation and, in particular, the 1986 Rules governing conduct of children’s hearings. 45. Under section 20 of the 1968 Act the local authority (in the present case, Strathclyde Regional Council) has a general responsibility for promoting social welfare in its area. More specifically, it has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care, to provide reports on children for children’s hearings and to implement supervision requirements imposed by children’s hearings. 46. The Reporter is appointed under section 36 of the 1968 Act by the local authority. Though employed by the local authority, he is expected to exercise his judgment independently and is separate from the local authority’s social work department. He may not be removed from office without the consent of the Secretary of State. His duties include deciding whether a case should be referred to a children’s hearing and arranging such hearings when they are necessary. 47. Children’s hearings decide whether a child requires compulsory measures of care and, if so, which measures are appropriate. Pursuant to section 34 of the 1968 Act, a children’s hearing consists of a chairman and two other members drawn from the children’s panel. The Secretary of State appoints a children’s panel for each local authority area. The members hold office for such period as the Secretary of State specifies; they may be removed by him at any time, but only with the consent of the most senior judge in Scotland, the Lord President of the Court of Session (section 33 of and Schedule 3 to the 1968 Act, and section 7 (1) of the Tribunals and Enquiries Act 1992). In practice members are initially appointed for a period of two years and are then usually reappointed for a further period, normally of five years. They would be removed only in wholly exceptional circumstances. Under domestic law a children’s hearing is regarded as a tribunal. It comes under the statutory system applicable to tribunals in Scotland (paragraph 61 of Schedule 1 to the Tribunals and Inquiries Act 1992). Its members are considered to enjoy judicial immunity from proceedings for wrongful detention and defamation, in the same way as judges of the lower courts. 48. The children’s hearing may only consider the case of a child where it has been referred to them by the Reporter and where certain "grounds of referral" are established, either by agreement with the child and his parent or by a decision of the Sheriff Court. The grounds, as set out in section 32 of the 1968 Act, include the following: "(c) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development." Thus, in the absence of agreement, a decision by a judge on the grounds of referral, after hearing appropriate evidence, is essential before the children’s hearing can consider the case. 49. The Sheriff, that is any judge of the local Sheriff Court, has the following main roles in the process: (a) to grant a warrant for continued detention of a child in a place of safety, pending a hearing, in certain circumstances; (b) to adjudicate on whether the grounds of referral to the children’s hearing are established, where the child or his parent does not accept them; (c) to hear appeals against decisions of children’s hearings. 50. As an urgent measure to protect a child before he or she can be brought before a children’s hearing, a person may be authorised by a judge to take a child to "a place of safety", as defined in the 1968 Act, in cases where there is believed to be lack of parental care (sections 37 (2) and 94 (1) of the 1968 Act). Such detention may not in any case last more than seven days. The Reporter must be notified immediately. If he then considers that compulsory care may be needed, he must arrange a children’s hearing to consider the case (section 37 (4)). If the children’s hearing cannot dispose of the case, they may issue a warrant, renewable once, requiring detention for up to twenty-one days (section 37 (4) and (5)). Thereafter the Reporter may ask the Sheriff for a warrant for further detention for a period of up to twenty-one days (section 37 (5A)). The child and his or her parents have a right to be heard before any such warrant is issued by a children’s hearing or a Sheriff. 51. The Reporter is under a duty to notify the parents of a child of a children’s hearing giving at least seven days’ notice. He also must provide before the first hearing a statement of the grounds of referral. He must also request from the local authority a report on the child and his or her social background, and the local authority must supply it (section 39 (4) of the 1968 Act). 52. A parent has the right to attend at all stages of a children’s hearing. "Parent" excludes the father of a child born out of wedlock but includes a person who has been granted parental rights under section 3 of the 1986 Act (sections 4 (1) and 30 (2) of the 1968 Act). A parent may be represented by any person of his or her choice (Rule 11 of the 1986 Rules). 53. Where the chairman of the children’s hearing considers that there is a conflict of interest between child and parent, he has the power to appoint a person known as a safeguarder to represent the child (section 34A of the 1968 Act). 54. At the first children’s hearing it must be ascertained if the grounds of referral are accepted by the child or his or her parent. If both child and parent accept, the hearing may proceed. If not, the hearing must direct the Reporter to apply to the Sheriff Court for a decision as to whether the grounds are established. Such application must be made within seven days and heard within twenty-eight days of its being lodged. The parents may appear as parties and be represented. The hearing is conducted in chambers, that is in private, in the interest of the child. Following the hearing, the Sheriff may either discharge the referral or, where he is satisfied that the grounds are established, remit the case to the Reporter. The Reporter will then make arrangements for a further children’s hearing for consideration and determination of the case (section 42 (6) of the 1968 Act). 55. At this stage, after discussing the case with the child, the parent or parents, any safeguarder and any representative attending the hearing, the children’s hearing must consider what arrangements would be in the best interests of the child (section 43 of the 1968 Act). They may, amongst other things, (1) decide that no further action is required and discharge the referral; (2) adjourn the case pending further investigations; (3) if they consider that the child is in need of compulsory measures of care, make a supervision requirement (as to which, see paragraph 58 below). 56. Before the conclusion of the hearing the chairman must inform the child, parent or parents, safeguarder (if any) and representatives (if attending the hearing) of the decision of the children’s hearing, the reasons for the decision, the right of the child or parent to appeal to the Sheriff against the decision and the right of the child and parent to receive a statement in writing of the reasons for the decision. Such a written statement must then be given if requested. Any parent, child or safeguarder who did not attend must be notified in writing of the decision, the right to receive a statement of reasons and the right to appeal (Rules 19 (4) and 20 of the 1986 Rules). 57. Children’s hearings are required to consider any relevant information made available to them (Rule 19 (2) (a) of the 1986 Rules). Apart from the statement of grounds of referral, this information (which would include any report, document or information submitted by the Reporter) is not usually supplied to the child or his parents. However, the chairman is required at the hearing to inform the child and his parents of the substance of such reports, documents or information if it appears to him that this is material to the manner in which the case should be disposed of and that its disclosure would not be detrimental to the interests of the child (Rule 19 (3) of the 1986 Rules). 58. Supervision requirements are the orders of the children’s hearing imposing compulsory measures of care. One kind of requirement that may be ordered is to submit to supervision in accordance with such conditions as the children’s hearing may impose, which may include a condition that the child reside in a particular place other than a residential establishment - for example, with foster parents (section 44 (1) (a) and (b) of the 1968 Act). A supervision requirement makes the local authority responsible for the care of the child in accordance with the requirement and gives them the necessary powers to exercise this responsibility. It does not, however, formally vest in them any parental rights of custody and does not take away parental rights. Those rights are subject to the supervisory requirements and, so far as inconsistent with those requirements, they cannot be exercised. Thus, the right of custody cannot be exercised where a supervision requirement has required a child to live in foster care. The Court of Session has indicated in the case of Aitken v. Aitken ([1978] Session Cases 297) that while such a supervision requirement subsists it would be possible for them to award a person custody of the child, but this award would have effect subject to the supervision requirement and the person could not exercise actual custody while the supervision requirement subsisted. As regards access, the children’s hearing is entitled to attach conditions as to access when making or continuing a supervision requirement (see Kennedy v. A. [1986] Scots Law Times 358). In the absence of any express condition, the parents will be given reasonable access. However, a local authority has the competence to terminate access where that is appropriate in pursuance of their duty under section 20 of the 1968 Act (see paragraph 45 above). The Court of Session has made it clear, in the case of Dewar v. Strathclyde Regional Council ([1984] Session Cases 102), that the courts will not adjudicate on questions of access between the parents and the local authority. If a parent is dissatisfied with the decision of a local authority as to access, it is appropriate for him or her to apply to a children’s hearing to regulate the matter by attaching a condition as to access to the supervision requirement. An appeal to the courts will then lie against the decision of the children’s hearing. 59. A parent has the right to request a review of a supervision requirement every six months after the last review (section 48 (4) of the 1968 Act) and can use this right to obtain a ruling on access. 60. The 1968 Act prescribes that a child should not continue to be subject to a supervision requirement for any longer than is necessary for his or her interest. The requirement must be reviewed by a children’s hearing - (a) at any time if the local authority consider that it should cease to have effect or be varied; (b) within one year, otherwise it will cease automatically to have effect; (c) at the request of the child or his or her parent, after the expiry of these periods - (i) three months from imposition of the requirement; (ii) three months from any variation of the requirement of review; (iii) six months from any other review (section 48 (4) of the 1968 Act). The Reporter must make the necessary arrangements for such revision hearings. On review the children’s hearing may terminate, continue or vary the requirement (sections 47 (1) and 48 of the 1968 Act). (h) Appeal against a decision of a children’s hearing 61. Within three weeks of a decision of a children’s hearing a child or parent or both may appeal against it to the Sheriff (section 49 (1) of the 1968 Act). This applies to all decisions. The Reporter has the duty to ensure that all reports and statements available to the children’s hearing along with reports of the proceedings of the children’s hearings and their reasons for their decisions are lodged with the clerk to the Sheriff Court. These documents are not made available to the parents as a matter of practice. The appeal is heard in chambers, in the interest of the child. The Sheriff must first hear the appellant or his representative and any safeguarder appointed. Where an irregularity in the conduct of the case is alleged, unless the facts are admitted by the Reporter, the Sheriff must hear evidence tendered by or on behalf of the appellant and the Reporter as to the irregularity. The Sheriff will then proceed to question, if he thinks fit, the Reporter and the authors or compilers of any reports and statements before him. He can call for further reports and statements where he thinks that this may help him. The child and parents and safeguarder are normally entitled to be present throughout. 62. The Sheriff will allow the appeal if he finds that there was a flaw in the procedure adopted by the children’s hearing, or that the children’s hearing did not give proper consideration to some factor in the case. Where he decides the appeal has failed, he confirms the decision of the children’s hearing. Where he allows the appeal, he may act as follows: (a) where the appeal is against a warrant for detention, he may recall the warrant; (b) in any other case, he has the choice of remitting the case to the children’s hearing for reconsideration or else of discharging the child from any further proceedings arising from those grounds of referral (section 49 (5) of the 1968 Act). 63. Pending an appeal, the child or his parents may make an application to a children’s hearing for suspension of the supervision requirement in question. The Reporter must then arrange for a hearing, which may grant or refuse the application (section 49 (8) of the 1968 Act). 64. The legislation governing adoption procedure is the Adoption (Scotland) Act 1978 ("the 1978 Act"). 65. Under the 1978 Act an order declaring the child free for adoption may be made by the Court of Session or Sheriff Court. The procedure of freeing for adoption makes it possible for the child to live with the prospective adopters in the period prior to adoption without the risk of his or her being reclaimed by the natural parents. Before making the order the court must be satisfied as regards each parent or guardian of the child that either (a) he or she freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; or (b) his or her agreement to making the adoption order should be dispensed with on a number of specified grounds, which include the ground that the parent or guardian is withholding agreement unreasonably (section 16 (2) of the 1978 Act). For the purposes of the 1978 Act the natural father of a child born out of wedlock would not be a "parent" or "guardian" except where he has subsequently married the mother or has a parental-rights order in his favour. The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency (that is, a local authority or an approved adoption society) and to extinguish existing parental rights. After freeing for adoption, the child will normally live for a time with the prospective adopters and then they will seek an adoption order. 66. An order of the Sheriff Court freeing a child for adoption is subject to appeal to the Court of Session. On such an appeal the Court of Session can decide on the whole merits of the action. The Court of Session will normally proceed on the basis of the Sheriff’s findings of fact but is not obliged to do so. It may, where appropriate, take evidence itself or remit the case to the Sheriff with instructions as to how he should proceed.