CEDH · CASELAW;REPORTS;ENG — 31 août 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16424/90                        Antony and Margaret McMichael                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                         (adopted on 31 August 1993)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application (paras. 2-4). . . . . . . . . . . . . . . 1         B.   The proceedings (paras. 5-14) . . . . . . . . . . . . . . 1         C.   The present Report (paras. 15-19) . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-95). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 20-57). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 58-95). . . . . . . . . . . . . . . . . . . . . . 8   III.   OPINION OF THE COMMISSION       (paras. 96-131) . . . . . . . . . . . . . . . . . . . . . . .15         A.   Complaints declared admissible           (para. 96). . . . . . . . . . . . . . . . . . . . . . . .15         B.   Points at issue (para. 97). . . . . . . . . . . . . . . .15         C.   Article 8 of the Convention           (paras. 98-106) . . . . . . . . . . . . . . . . . . . . .15         D.   Article 6 para. 1 of the Convention           (paras. 107-121). . . . . . . . . . . . . . . . . . . . .17         E.   Article 14 of the Convention           (paras. 122-127). . . . . . . . . . . . . . . . . . . . .19         RECAPITULATION       (paras. 128-131). . . . . . . . . . . . . . . . . . . . . . .20         CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . .22         PARTIALLY DISSENTING OPINION OF MRS. LIDDY       (joined by Mr. J. C. SOYER) . . . . . . . . . . . . . . . . .23   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .24   APPENDIX II       DECISION ON THE ADMISSIBILITY. . . . . . . . . 25-40   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicants are Antony and Margaret McMichael, British citizens born in 1938 and 1954 respectively and resident in Glasgow. They are represented by Peter McCann, a solicitor practising in Glasgow.   3.     The application is directed against the United Kingdom. The Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office, London.   4.     The case, insofar as declared admissible, concerns the applicants' complaints that they were unable to see the confidential reports and other documents submitted before the Children' Hearings and the complaints of the first applicant that as a natural father (prior to his marriage to the second applicant) he had no right to legal custody of A. or to participate in the proceedings and that he was discriminated against in these respects. It raises issues under Articles 6, 8 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 11 October 1989 and registered on 10 April   1990.   6.     On 3 December 1990, the Commission decided to communicate the application to the respondent Government for their observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 16 May   1991.   The applicants submitted their written observations in reply on 5 August and 25 September 1991.   8.     On 7 April 1992, the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   9.     On 23 July 1992, the Commission granted the applicants legal aid.   10.    At the hearing, which was held on 8 December 1992, the applicants were represented by Mr. Peter McCann, solicitor. The Government were represented by Ms. Diana Brookes, Acting Agent, Mr. T. Dawson, Solicitor General for Scotland, Mr. D. Ogg, counsel and Mr. J. W. Sinclair and Mr. J.L. Jamieson as advisers.   11.    On 8 December 1992, the Commission declared the application partly admissible, partly inadmissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    On 27 January 1993, the applicants made further submissions. The Government's further observations on the merits were submitted on 25 May 1993.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between February and May 1993. In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   15.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  F. ERMACORA                  A. WEITZEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  J.C. SOYER                  Mrs. G.H. THUNE            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ   16.    The text of the Report was adopted by the Commission on 31 August 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   18.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   20.    The second applicant gave birth to a son A. on 29 November 1987. The first applicant, who was living with the second applicant, was later named as the father on the birth certificate.   21.    The second applicant had a history of recurrent mental illness. She was first ill in or about 1973 and was admitted to psychiatric hospital on a number of occasions.   There was a recurrence of her illness shortly after A.'s birth.   As a result, the Social Services of Strathclyde Regional Council ("the Council") took A. into care on 11 December 1987 under a Place of Safety Order.   22.    On 17 December 1987, the case was brought before a Children's Hearing.   The second applicant was present.   23.    The ground of referral to the Children's Hearing was -         "that a lack of parental care is likely to cause <A.> unnecessary       suffering or seriously to impair his health or development"-       Section 32 (2)(c) of the Social Work (Scotland) Act 1968 ("the       1968 Act").   24.    The statement of facts given in support of the ground of referral stated inter alia:         (1)   That <A.> ... was born on 29 November 1987 (as far as can       be ascertained), and presently is in the Special Baby Care Unit       of the Southern General Hospital, Glasgow...         (2)   that the <second applicant> suffers from a major psychiatric       illness.         (3)   that the <second applicant> refuses to take medication to       stabilise her condition when not an in-patient at psychiatric       hospital.         (4)   that the <second applicant> has required to be admitted to       psychiatric hospital on emergency basis under the Mental Health       (Scotland) Act 1984 on <5 June 1986, 5 December 1986 and       31 December 1986>.         (5)   that due to her psychiatric condition the <second applicant>       is unlikely to be able to care adequately for the child."   25.    At the hearing on 17 December 1987 the ground of referral and statement of facts were put to the second applicant.   She denied the ground of referral.   The Children's Hearing accordingly instructed the Reporter to apply to the Sheriff for a finding on whether the ground of referral was established.   26.    The Children's Hearing on 17 December 1987 also issued a warrant for continued interim detention of A. in a place of safety pending determination of the merits of the case.   Subsequent warrants for continued detention were granted by a further Children's Hearing on 5 January 1988 and by the Sheriff Court at Glasgow on 21 January 1988.   27.    On 23 December 1987, A. was discharged from hospital and taken to foster parents at Greenock. The second applicant discharged herself from hospital.   Arrangements were made for her to be taken   3 times a week for access visits to A. at the foster home, under the supervision of the Council.   28.    It was decided by the Council at this stage that the first applicant should not be included in the access arrangements.   The principal reason for this was that at this time the second applicant still   denied that the first applicant was the father.   Other reasons were his aggressive and threatening attitude and his refusal to give information about his background.   29.    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 it. The second applicant failed to appear for four of the access visits between 31 December 1987 and 18 January 1988.   30.    On 21 January 1988 the Reporter's application for a finding on the grounds of referral was heard in the Glasgow Sheriff Court.   The second applicant was present and represented.   The first applicant was also present.   Evidence was heard from   medical, nursery and social work witnesses and the first and second applicants both gave evidence. At the conclusion of the hearing the Sheriff found the grounds of referral established.   He remitted the case to the Reporter for him to arrange a Children's Hearing to consider and determine the case.   The second applicant did not appeal to the Court of Session.   31.    On 27 January 1988, the Council held a child care review of the case, at a meeting at which the applicants were both present.   A consultant psychiatrist advised that the second applicant was seriously mentally ill and would not accept treatment.   It was decided that in view of this, access should be terminated, though this decision would be reviewed if the second applicant had treatment and her mental state improved.   The first applicant had also requested access at the meeting, claiming that he was A.'s father.   Access was refused since the second applicant maintained that he was not the father and in light of his aggressive and threatening attitude.   32.    In February 1988, the applicant was admitted to hospital where she remained until June 1988.   33.    On 4 February 1988, the Children's Hearing met to consider the case.   The second applicant attended, with the first applicant as her representative.   The Panel had a number of documents before it, including a report on the child compiled by the Social Work Department dated 28 January 1988 reviewing the history of the case and proposing that A. continue to reside in the foster home.   These documents were not produced to the applicants but the Chairman informed them of their substance.   34.    At the conclusion of the hearing it was decided that it would not be appropriate in the interests of A. to commit him to the care of the applicants and 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.   The decision was based, inter alia, on the mental health of both applicants and the aggressive and hostile nature of both applicants.   This decision did not make any provision as to access.   In such circumstances the presumption is that parents get 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.   35.    The second applicant lodged an appeal, which was due to be heard at the Sheriff Court on 29 February 1988.   She attended court, with two nurses, apparently heavily sedated.   Following discussion, the Sheriff asked if 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.   36.    A review was held by the Council on 27 April 1988 and was attended by both applicants.   In view of the second applicant's improved mental state it was decided to allow her supervised access visits.   By this time, the second applicant had agreed that the first applicant was A's father and on 18 February 1988, the first applicant's name had been added to the birth certificate.   This did not give the first applicant any parental rights.   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.   37.    On 24 August 1988, the first applicant's solicitors applied to the Scottish Legal Aid Board for legal aid for an action in the Court of Session to obtain custody or access.   The Board refused legal aid on the ground that the action was incompetent since the Court of Session had no power to lift the supervision requirement and would not intervene in access disputes.   Counsel then advised the first applicant that this decision was correct but that the best method of obtaining access would be to get the Children's Hearing to review the supervision requirement.   38.    On 20 September 1988, the Council held a further review. They had held meetings with the first applicant to obtain background information and made inquiries with his doctor and the police.   It was decided at the review to allow both applicants access of 3 visits per week at a Special Centre and give the applicants assistance in learning parenting skills.   It was also intended that there should be access for one 24 hour period.   This intensive access was to last for 3 months after which an assessment would be made.   39.    On 13 October 1988, the Children's Hearing held a review of the supervision requirement.   The second applicant was present and the first applicant was present, as her representative.   It had before it a report by the Social Work Department dated 20 September 1988 updating information on A. and outlining the proposed access arrangements.   This report was not disclosed to the applicant's though the Chairman informed them of its substance.   The applicants had submitted a statement alleging inter alia that they had never had an opportunity to show that they could care for A.   40.    After the hearing, it was decided to continue the supervision requirement and to approve the access proposals.   The Hearing considered that only time would show if rehabilitation was a viable prospect and that the second applicant's mental health should be closely monitored.   41.    The second applicant did not appeal to the Sheriff Court.   42.    The access period lasted from 4 October 1988 to 19 December 1988, during which the applicants had approximately 23 access visits. 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 1988 by a doctor, 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.   43.    On 19 December 1988, a child care review was held, at which the applicants were present.   It was decided to terminate access visits in view of concern about the long-term effects on A. and the fact that no obvious progress had been made in the applicants' ability to care for A.   The Council 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.   44.    Following the second applicant's application, the Children's Hearing carried out a review on 20 June 1989.   The second applicant was present with the first applicant as her representative.   A report by the Social Work Department was before the Hearing further updating the case. It described the access period and reported that A. was happy and developing well and that prospective adopters were being sought.   45.    The applicants applied for access to be re-established.   The Hearing considered that there was a conflict of interest between the Council and the second applicant, and probably between parent and child and decided that a safeguarder should be appointed to represent the child's interests.   46.    The Safeguarder, appointed by the Hearing, interviewed, inter alia, the applicants, the social workers, the foster-parents and the police.   His report of 18 August 1989 stated, inter alia, 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 mental state.   47.    The adjourned Children's Hearing reconvened on 5 September 1989. The applicants were present and the second applicant represented by a solicitor.   The Safeguarder's report and other documents before the Hearing were not disclosed to the applicants, but the Chairman informed them of the substance.   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 the suggestion of obtaining an independent psychiatric report on the second applicant.   48.    The second applicant appealed to the Sheriff Court on the grounds:         (a) that the applicants had not been informed of the substance       of the documents produced at the hearing,       (b) that 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) that an adjournment for the purpose of obtaining a       psychiatric report had been refused.   49.    Ground (a) was apparently not pursued at the appeal hearing, which took place on 4 October 1989.   The Sheriff decided that it would have been appropriate to obtain a psychiatric report and remitted the case to the Children's Hearing.   50.    A psychiatric report dated 29 September 1989 had been produced at the request of the second applicant's solicitors.   This report indicated that the second applicant suffered from a recurrent mental illness but that this was in remission and if it recurred it could respond satisfactorily to treatment as in the past.   The psychiatrist considered access should be re-established and that A. should eventually be returned to the applicants.   51.    A Children's Hearing to consider the report was to be convened on 9 January 1990 but neither applicant attended or was represented, the Hearing being informed that the second applicant had been declared insane and admitted to 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.   52.    On 1 February 1990, the Council lodged with the Sheriff Court a petition for freeing A. for adoption.   53.    The applicants were married on 24 April 1990.   The first applicant thereby obtained parental rights in respect of A.   54.    The petition was heard between 18 June 1990 and 27 July 1990. The applicants refused to give their consent to adoption.   They were present at the hearing and the second applicant represented by a solicitor.   The documentary evidence before the Court had been disclosed to the applicants.   Witnesses were heard and the applicants given the opportunity to cross-examine them and lead their own evidence.   55.    On 12 August 1990 the second applicant was re-admitted to hospital. On 14 October 1990 the Sheriff decided that the applicants were withholding their consent unreasonably.   He decided to dispense with their consent and granted the order freeing A. for adoption. He stated:         "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.   [The       second applicant] 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.       and Mrs. M., whose testimonies support the findings in fact I       have made relating to what happened on the access visits.   The       child, now nearly three, has in fact, as an infant, rejected both       his parents ...         The [applicants] are objecting to the child being freed for       adoption in order, and only in order, that they can have custody       of him.   Such a conclusion can only be viewed with the utmost       misgiving for the future of this child.   He is presently reared       in a house by foster parents who have enabled him to withstand       the traumas of these access visits by the [applicants].   It would       be wholly contrary to his welfare for this present state which       is one of uncertainty, to be prolonged and the possibility of his       parents having his custody contemplated.   Neither his mother, nor       [the first applicant], are interested in the welfare of the       child.   They are incapable of distinguishing between the child's       interests and their having possession of him.   A reasonable       parent would give great weight to the welfare of the child.   The       welfare of this child clearly does not lie with his being with       his parents, and their opposition to the present application is,       in my view, unreasonable.   Any objective view of their attitude       and of their conduct, in my view, discloses its unreasonableness.       Mrs. K., whose experience as a Health Visitor is extensive and       impressive, and whose experience of the [applicants] in the       course of this case was considerable and whose testimony I       accept, gave her opinion of [the first applicant] at the end of       the penultimate paragraph of her report produced and of the risks       she feared to the child if he was involved with him.   Standing       such a censure from such a source, which I accept as valid, his       present attitude, viewed objectively, can, in my view, only be       regarded as unreasonable ..."   56.    In December 1990 the applicants lodged an appeal to the Court of Session.   They applied for legal aid and appear to have been granted legal aid for the purposes of obtaining counsel's opinion.   Counsel advised that an appeal had no prospect of success and legal aid was not extended.   The applicants continued their appeal representing themselves.   57.    Their 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 properly to care for a child, it would have been contrary to the best interests of A. to return him to the applicants' custody.   B.     Relevant domestic law and practice         Rights of parents   58.    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,         (1) 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;         (2) 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 upbringing;         (3)   the right to access.   59.    The persons who may exercise parental rights are governed by the Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act").         Section 2 (1) provides:         "Subject to sections 3 and 4 of this Act -         (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."   60.    Under Section 3, any person claiming an interest may make an application to the court for an order relating to parental rights and where it is in the interests of the child the court may make such an order.   A father of a child born out of wedlock may obtain parental rights under this procedure by applying either to the Court of Session or the local Sheriff Court.         Compulsory Measures of Care   61.    The rules regarding compulsory measures of care in respect of children are set out in Part III of the Social Work (Scotland) Act 1968 ("the 1968 Act") supplemented by subordinate legislation.   62.    Under Section 20 of the 1968 Act, the local authority has a general responsibility for promoting social welfare in its area.   It has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care.   63.    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 the Children's Hearing and arranging such hearings when they are necessary.         Children's Hearings   64.    Children's Hearings are the sittings of members of the children's panel which decide whether a child requires compulsory measures of care and if so, they may order such measures. Pursuant to Section 34 of the 1968 Act, a Children's Hearing consists of a chairman and 2 other members drawn from the children's panel constituted under Section 33 of the 1968 Act.   65.    Section 33 and Schedule 3 provide for constitution of 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, but may be removed by him at any time.   66.    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 court decision.         The grounds of referral   67.    The Children's Hearing may only decide if compulsory measures of care are appropriate where one of the "grounds of referral" applies to the child, either by being accepted by the child and his parent or by being established by a decision of the Sheriff.   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".   68.    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.   69.    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.   A parent may be represented by any person of his or her choice. 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.         Procedure   70.    The Reporter is under a duty to notify the parents of a child of a Children's Hearing giving at least 7 days' notice.   He also must provide before the first hearing a statement of the grounds of referral.   71.    At the first Children's Hearing, they must ascertain if the grounds of referral are accepted by the child and his parents.   If they accept, the hearing may proceed.   If not, they 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 7 days and heard within 28 days of that application.   The parents may appear as parties and be represented.   Following a 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, pursuant to S. 42(6) of the 1968 Act arranges for consideration and determination of the case by the Children's Hearing.   72.    At this stage, the Children's Hearing must consider what arrangements would be in the best interests of the child (Section 43 of the 1968 Act).   73.    They may, inter alia,         (1)   decide no further action is required   and discharge       the referral;         (2)   adjourn pending further investigations, including       directing that a child attend a clinic or hospital;         (3)   make a supervision requirement under Section 44,       requiring the child to submit to supervision in accordance       with such conditions as they may impose or to reside in a       named establishment.   74.    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.   (Children's Hearing Rules, Rules 19(4) and 20.)   75.    The mode of operation of a Children's Hearing is intended to differ from that of a court.   The Children's Hearing is intended to determine what is in the child's best interest.   Its aim is to achieve this by informal discussion, not by an adversarial procedure. Nevertheless, the child and his parent, and any safeguarder appointed to look after the child's interests, must be fully involved in the discussion.         Reports and documents considered at the Children's Hearing   76.    The Children's Hearings are required to consider all the information supplied (Children's Hearings Rules, Rule 19(2)(a).   Apart from the statement of grounds of referral this information (reports, documents etc.) is not usually supplied to the child or his parents, but the chairman is required at the hearing to inform the child and his parents of their substance 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 (Children's Hearing Rules, Rule 19(3) ).         Supervision requirements   77.    Supervision requirements are the orders of the Children's Hearing imposing compulsory measures of care.   They may be of two kinds:         (a) Requirements to submit to supervision in accordance       with such conditions as the Children's Hearing may impose.       (Section 44(1) (a) of the 1986 Act).   The conditions may include       for example conditions requiring the child to reside in a       particular place other than a residential establishment or       with particular persons.         (b)   Requirements to reside in a named residential       establishment and to be subject to such conditions as the       Children's Hearing may impose.   (Section 44(1)(b) of the       1968 Act).   78.    The effect of supervision requirements has been clarified in court decisions, in particular the decisions of the Court of Session in the cases of Aitken v. Aitken 1978 SC 297, Dewar v Strathclyde Regional Council 1984 SC 102 and Kennedy v. A 1986 SLT 358.   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 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.   79.    As regards access, the Children's Hearing are entitled to attach conditions as to access when making or continuing a supervision requirement.   This was made clear in the case of Kennedy v. A.   In the absence of any express condition as to access, 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.   80.    The Court of Session have made it clear in the case of Dewar v. Strathclyde Regional Council, 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, the Court of Session have indicated that it is appropriate for him to apply to the Children's Hearing to regulate the matter by attaching a condition as to access to the supervision requirement.   81.    A parent has the right to request a review of a supervision requirement every 6 months after the last review (Section 48 (4) of the 1968 Act) and can use this right to obtaining a ruling on access.         Duration and review of supervision requirements   82.    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 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 parent, after the       expiry of these periods -              (i)    3 months from imposition of the            requirement;              (ii)   3 months from any variation of the            requirement of review;              (iii) 6 months from any other review.   83.    The Reporter must make the necessary arrangements for such revision hearings.   On review the Children's Hearing may terminate, continue or vary the requirement. (Section 47 (1) and 48 of the 1968 Act.)         Appeal against decision of a Children's Hearing   84.    Within 3 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.   85.    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 Hearing 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.   86.    The appeal is heard in chambers.   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, then unless the facts are admitted by the Reporter, the Sheriff must hear evidence tendered by or on behalf of the appellant and Reporter as to the irregularity.   87.    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 this may help him. The child and parents and safeguarder are normally entitled to be present throughout.   88.    The Sheriff looks at the merits of the case.   Where he decides the appeal has failed, he confirms the decision of the Children's Hearing.   Where he is satisfied that the decision is not justified in all the circumstances of the case, he may remit the case to the Children's Hearing for consideration or discharge the child from any further proceedings arising from those grounds of referral (Section 49(5) of the 1986 Act).         Adoption procedure   89.    The legislation governing adoption procedure is the Adoption (Scotland) Act 1978 ("the 1978 Act").   90.    Under the 1978 Act, an order declaring the child free for adoption may be made by the Court of Session or Sheriff Court.   91.    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 one of the grounds specified in       Section 16(2) of the 1978 Act.   92.    There are a number of grounds for dispensing with the parents' or guardians' consent.   These include the ground that the parent or guardian is withholding his agreement unreasonably.   93.    For the purposes of the 1978 Act the natural father of a child born out of wedlock would not be a "parent" except where he has subsequently married the mother or has a parental rights order in his favour.   94.    The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency and to extinguish existing parental rights.   95.    An orde