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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BR & Anor v Grant [2000] ScotCS 8 (13 January 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/8.html Cite as: [2000] ScotCS 8

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The appellants B.R. and A.R. are brother and sister. B. was born on 17 July 1985, and A. on 12 January 1989. Their father is M.R., and their mother is J.N., who was formerly married to M.R., and is now married to A.N. In May 1997, both children were residing in family with Mr. and Mrs. N, in Alness. On 29 May 1997, a Child Assessment Order was granted under section 55(1) of the Children (Scotland) Act 1995 in relation to each of the two children. Assessments were carried out, and thereafter on 10 June 1997, the children's reporter referred the case of each child to the children's hearing, in terms of section 65(1) of the 1995 Act. On 18 June 1997, the children's hearing gave a direction to the reporter under section 65(7) and (9) of the 1995 Act to make an application to the sheriff for findings in terms of these subsections. The reporter made application to the sheriff accordingly. The sheriff dispensed with service on the children, and dispensed with the obligation on them to attend the hearing, which was fixed for 7 July. He appointed Mr. Forbes Mitchell to safeguard the interests of the two children in the proceedings. The hearing took place over four days in July, and by interlocutor of 29 July 1997 the sheriff found the grounds of referral established, subject to one deletion.

Mr. and Mrs. N. appealed to the sheriff principal from this decision of the sheriff, by way of stated case. For various reasons, and most regrettably, the appeal was not heard until 24 February 1999. The only question contained in the stated case for the opinion of the sheriff principal was "On the whole facts of the case was the sheriff entitled to hold the grounds of referral established?". By interlocutor of 16 March 1999, the sheriff principal answered this question in the negative, allowed the appeal, recalled the interlocutor of 29 July 1997, and remitted the cause to the sheriff, directing him to dismiss the application and discharge the referral.

The present appeal to the Court of Session from the decision of the Sheriff Principal, in terms of section 51(11) of the 1995 Act, is taken in each case by the child in question. Neither child was a party to the proceedings before the sheriff or the sheriff principal, although both were called as witnesses before the sheriff by the reporter, and their safeguarder appeared personally before the sheriff and was represented at the appeal to the sheriff principal. It is not disputed that despite their not having been parties in the courts below, each of the children has a right of appeal, in terms of section 51(12) of the 1995 Act. Neither the reporter nor the safeguarder appealed, but both were represented, as were Mr. and Mrs. N., as respondents in this appeal.

It is worth mentioning that the sheriff principal expresses the view that the position of a safeguarder "may be rendered untenable if his opinions and decisions can be overturned by the independent opinions and decisions of the children whom he is supposed to protect". However, it does not appear to us that the children's entering proceedings and being represented in any way "overturns" the safeguarder's opinions or decisions: so long as he remains safeguarder, his responsibilities remain the same, whether or not the position adopted by the children is different. In the present case, although the safeguarder has not appealed, his counsel intimated that he now supported the children's appeal. Procedurally, section 51(12) does not provide for the safeguarder himself appealing under subsection (11), although in terms of Rule 3.9 of the Child Care and Maintenance Rules 1997 he may appear personally in proceedings or instruct legal representation, and is elsewhere regarded as a party to proceedings. Our attention was drawn to a number of provisions in relation to safeguarders, and it was suggested by counsel for Mr. and Mrs. N. that the appearance of the safeguarder in this appeal involved possible anomalies or even incompetency. It may be that there are situations in which problems would arise, but it appears to us that the safeguarder is still safeguarder by virtue of his appointment by the sheriff, and that there is no incompetency in his appearing, through counsel, not as an appellant but as a respondent. Having regard to the appellants' ages, and more particularly their history and some of the matters raised in these proceedings, it is worth noting that at the hearing of the motion for leave to appeal, the solicitor for the children assured the sheriff principal that he was satisfied that he had proper instructions, and that at the hearing before this court there was no suggestion that they were in any way unable to understand the issues involved in their appeals.

It is to be noted that the sheriff heard a single proof covering both applications, but issued separate (very similar) stated cases. Before the sheriff principal, the two appeals were argued together, and were dealt with together by him in his interlocutor and note of 16 March 1999. In this court, the appeals were again dealt with together, both appellant children being represented by the same counsel. For convenience, counsel for all the parties dealt with the appeal by B. first, before turning to certain differences between that appeal and the appeal by A. We shall follow the same course.

In terms of section 51(11) of the 1995 Act, the appeals from the sheriff principal are by way of stated case. The sheriff principal heard no evidence and made no findings in fact and having issued a full written judgment before stating the case, added no further comments in the case. We are thus concerned with his written judgment, and the questions posed by him for this court, together with the cases stated for his opinion by the sheriff. We shall return in due course to the questions posed. But we do not think that the sheriff principal's assessment of what the sheriff did is sound; and in any event, the submissions advanced in this court related, for the most part, directly to what the sheriff had said and done, and we find it more convenient to adopt the same approach.

Section 52(1) of the 1995 Act provides that the question of whether compulsory measures of supervision are necessary in respect of a child "arises if at least one of the conditions mentioned in subsection (2) below is satisfied with respect of him". Subsection (2) lists a number of such "conditions". We are concerned only with condition (c), which is to the effect that the child

When the reporter referred the cases of B. and A. to the children's hearing, in terms of section 65(1) of the Act, this was the only one of the "conditions" specified in section 52(2) which was relied upon as a reason. In stating the grounds for referral, in the case of B., the reporter set out a Statement of Facts in support of this stated reason as follows:

In the case stated by the sheriff, he narrates at the outset the reason given for the attendance of the child (i.e. the terms of section 52(2)(c)) and the full terms of the Statement of Facts. The sheriff found the grounds of referral established, under deletion of the words "health and" from Statement of Fact 9.

As we have noted, the only question upon which the sheriff was asked to state a case was "On the whole facts of the case was the sheriff entitled to hold the grounds of referral established?". We can well appreciate the difficulty which a parent may have in accepting a finding that grounds of referral have been established. And like the sheriff in the present case, we can appreciate that a legal adviser who (as here) did not hear the evidence may well have difficulty in framing a point of law. But in stated case procedure, as was pointed out by the Lord Justice Clerk in Drummond v. Hunter 1948 J.C. 109 at page 113, "If a legal issue is to be raised, it ought to be properly raised by a question defining the issue precisely. Unless this rule is followed, there is no real guarantee that a point taken in this Court was a live point in the lower Court, nor is there any guarantee that, when the case was being stated, the Judge stating it had in view the point sought to be argued here." In such situations, there is in our opinion a real risk that, as the Lord Justice Clerk put it "The ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case." Despite their different context, these observations seem to us to be of fundamental importance where stated cases are sought in relation to a finding that grounds of referral have been established. In the present case, the sheriff says that he has great difficulty in understanding what is meant by "on the whole facts of the case". His attention was not drawn to any specific area of alleged insufficiency in the evidence. There was no suggestion that in holding the grounds established he either had, or must have, applied the wrong test or adopted a wrong approach. And as a result, all he could do in endeavouring to state a case was to set out matters of fact which he had found established, and explain his assessment of matters as best he could, without being told, even in a broad way, where and how it was apparently being suggested that he had gone wrong. Unsurprisingly with a case stated in such a way, it seems to us that the criticisms of what the sheriff did take very much the form suggested by the Lord Justice Clerk in Drummond v. Hunter, with arguments being advanced before the sheriff principal or in this court, and alleged gaps and discrepancies being relied upon now, which the sheriff has not been asked to consider, and which the stated case might well have dealt with more specifically and more amply if there had been any indication that this was required. Even once the stated case was available, no attempt seems to have been made to have additional questions included, at a stage when the sheriff could still relate his findings and observations to those questions.

Too late to serve that primary purpose, two further questions were formulated on behalf of the appellants, and intimated to the respondent and the sheriff principal, apparently with a view to providing some focus for submissions. These were as follows:

It remains wholly unsatisfactory that the stated case could not be geared to these questions. But at least they served two purposes, in providing some focus on the issues to be raised, and (in our view) effectively excluding other issues which were not raised even then.

In terms of the Child Care and Maintenance Rules 1997 (S.I. 1997/291) at Rule 3.59, procedures are laid down for appeals under section 51(11) of the 1995 Act which are designed to ensure inter alia that points of law shall be specified when application is made for a stated case, and providing, at sub-rule (9) that in the hearing of an appeal a party shall not be allowed to raise questions of law or irregularities in the conduct of a case of which notice has not been given "except on cause shown and subject to such conditions as the sheriff principal may consider appropriate". We were informed that leave was granted by the sheriff principal to raise these two new questions of law before him. It is apparent from his narrative of submissions to him, and the questions contained in the case stated for this court, that criticism of the sheriff centred upon the issue of sufficiency raised by the first question, but also upon an allegation that the sheriff had failed to apply the proper test in relation to impairment, seriousness and the causal link to lack of care by parents (issues which perhaps cover some of the points allowed to be raised by these questions, but seem to us to run far beyond them). Put shortly, the questions in the case stated by the sheriff principal raise (1) this additional issue as to the "correct test" and (2) issues as to the sheriff principal's displacing of the sheriff's decision on the basis of the sheriff's findings in fact. (A procedural issue is also raised with which we are not concerned). While in this appeal submissions ranged very widely across the legal background, procedural provisions and other matters it seems to us that the legal issues which actually arise in these appeals are quite limited in their scope.

In the stated case by the sheriff relating to B., he narrates not merely that he found the grounds of referral established (under the deletion already mentioned) but that he found a number of facts admitted or proved. These are set out in 18 numbered paragraphs. They cover events from September 1989 onwards, and in particular cover assessments and recommendations made by various professional people over the years. These include opinions as to whether B. exhibited autism or Asperger's Syndrome, and as to the type of school, and support, which would be appropriate for him. Findings 1 to 9 in the sheriff's findings of fact are effectively historical background, relating as they do to a period up to the summer of 1994, when B. was living in the south of England. But as is apparent from finding 10, relating to Mrs. N's current position, it is clear that this historical background is of substantial significance. In that finding, it is said that she accepts what is contained in certain of these reports and assessments, that partly as a result of what is contained in them she considers that B. "is suffering from Asperger's Syndrome and she has told him that he is autistic. She has withdrawn him from mainstream schooling." Finding 11 narrates the family's move to Alness in March 1996. Finding 12 narrates that Mrs. N. removed B. from one school and enrolled him in another: "in doing so Mrs. N. had again removed B. from mainstream education and enrolled him in a school which caters for children with severe disabilities." Finding 13 narrates Mr. and Mrs. N's refusal to allow B. to be assessed by community paediatric staff, and finding 14 is to the effect that following the making of a Child Assessment Order in May 1997, a Dr. Kelsey, Senior Clinical Medical Officer at the Royal Northern Infirmary, Inverness assessed B. She had extensive notes on B. sent to her from Hampshire, and was aware that he had experienced some development delay. Finding 15 is in the following terms:

Finding in fact 16 is in these terms:

Since the Child Assessment Order, B. has been fostered along with his sister A. Finding in fact 17 narrates some of the history since the children were in foster care, including a finding that B. told the foster mother "that he was autistic and had learning difficulties and that he was different from other children and could not go to mainstream school". Finding in fact 18 is as follows:

In addition to these specific findings in fact, the sheriff explains matters further in his accompanying Note. He observes that Mrs. N. herself has taken a lot of time and study to read up about autism and Asperger's Syndrome. He notes her acceptance of the view expressed in two of the reports obtained in Hampshire, that B. is suffering from Asperger's Syndrome. But he observes that those giving the reports relied to a considerable extent on information supplied by Mrs. N., and that a considerable amount of the information supplied by her "simply did not square with the observations of most of the professionals dealing with B." Turning to the period after the move to Scotland, the sheriff says that Mrs. N. "was convinced that B., if not autistic, was suffering from Asperger's Syndrome. She persists in that belief and she tells B. that he is autistic." He goes on to say that according to Dr. Kelsey both Mrs. N. and Mr. N. "were presenting B. as quite different from the way professionals see him." And he quotes various passages from the evidence of both Dr. Kelsey and others, including evidence from another witness that she felt that B. could cope with mainstream schooling "but his Mum is holding him back" and "Mrs. N's anxiety about placing her children comes from a perception which is not in accordance with reality".

The sheriff concludes his Note as follows:

In his Note accompanying his interlocutor of 16 March 1999, the sheriff principal observes that the sheriff did not make any deletion from what he calls the actual grounds of referral - i.e. the "reason" given for the referral, in terms of condition (c) of section 52(2) of the 1995 Act. He observes that it does not appear that there was ever any suggestion of unnecessary suffering or impairment to health. And he says that the appeal was conducted on the footing that what the sheriff had found to be established was that the children were likely to be impaired seriously in their development due to lack of parental care. The issue was whether, for the purposes of section 52(1) condition (c) was satisfied. That question can in our opinion legitimately and logically be answered in the affirmative, without making deletions cutting back the "reason" for referral to the particular matter within condition (c) which has been established. If there had been live issues as to unnecessary suffering or impairment of health, it could of course be important, by deletion or in some other way, to make it clear what had been established, and what had not. But despite some discussion of "unnecessary suffering" in the submissions to us, it does not appear to us that anything turns on this and that at this stage, as before the sheriff principal, it is clear that the sheriff has found condition (c) to be established because the children were likely to be impaired seriously in their development due to lack of parental care.

It was submitted to the sheriff principal that the sheriff had failed to apply the proper test under section 52(2)(c): reference was made to H. v. Harkness 1998 S.C. 287, it being submitted that the sheriff had not addressed the questions which that case identified as the appropriate ones. It was also submitted that on the facts found, no reasonable sheriff could have concluded that there was likely to be "serious" impairment to the development of the children. The sheriff had effectively decided the cases on the basis that "the children would be better off" if the view of the authorities prevailed.

The sheriff principal deals at some length with the question of whether the sheriff had failed to apply the proper test (although we are not sure why he regarded that question of law as one which was before him). He held the appellants' submission in that regard to be well-founded. It is, however, more convenient to deal with that matter in relation to the direct submissions made to this court. The sheriff principal then turned to the second submission made by the appellants to him. He expresses some doubt as to whether there is sufficient identification of any impairment likely to result from lack of parental care. But he then goes on to say that it is unnecessary to express a concluded view because "I am clearly of opinion that the stated case contains no material whatever which is capable of yielding the inference that such impairment would be serious." In support of this conclusion, he says that "all that can be taken from the findings here is that the children would be better off in mainstream schools than in special schools." With regard to the findings which the sheriff principal himself identifies as the material ones, findings 15, 16 and 18, we do not understand this sentence, which appears to us to fall far short of what is contained in the sheriff's findings, and what the sheriff said and thought about the matter. It suggests both a factual view, and a "test", which we cannot relate to anything the sheriff says. That being so, the decision of the sheriff principal in our opinion proceeds on a wholly unsound basis, and cannot stand. It thus becomes a matter for this court to consider both the question of whether the sheriff failed to apply the proper test, and whether, on an application of the proper test the sheriff's findings provide a proper foundation for holding that the grounds of referral are established. In these circumstances, we find it convenient to consider first the submissions advanced on behalf of Mrs. N. and Mr. N., to the effect that there was a failure on the part of the sheriff to apply the correct test, and that there is not sufficient material to justify a finding that the ground of referral is established.

At the outset of his submissions, counsel for Mrs. N. and Mr. N. drew a distinction between, on the one hand, the reason for referral and the supporting statement of facts, and on the other hand the sheriff's own findings in fact and note of reasons. The sheriff's decision was that the former (including the statements of facts subject to minor deletion) were established. His own findings in fact and Note provided the basis (adequate or not) for that decision. Counsel moreover emphasised that the decision was one as to what was "likely" - i.e. what was likely in the future. In considering the basis for the decision, it would be important to look carefully at the chronology of events in the past, so that one might reach a correct view as to whether they provided a proper basis for prognosis. It would also of course be necessary to distinguish between the likelihood of serious impairment to development, and the question of whether such impairment could be said (in a causal sense) to be due to a lack of parental care. The sheriff's decision could only be justified if, in his own findings of fact and Note, a sufficient basis could be found for the conclusion expressed in the decision. We do not think that these general opening propositions were significantly disputed. And despite the fact that the sheriff had left standing the alternatives contained within the stated reason for referral, it did not seem to us that counsel for Mrs. and Mr. N. pressed his criticism of this to the stage of saying that the decision was anything other than one that the child was likely to be impaired seriously in his development, due to a lack of parental care. We should note that in endeavouring to put matters of unnecessary suffering and serious impairment in context, counsel referred to the different, and as he submitted lower, requirements which are found in sections 55 and 57 of the 1995 Act (suffering "significant" harm). While it is no doubt true that less is required for the purposes of those sections, we do not find them of any direct assistance in relation to the construction of section 52(2)(c).

In submitting that the sheriff had failed to apply the correct tests, counsel for Mrs. and Mr. N. took as his starting point H. v. Harkness 1998 S.C. 287. While noting earlier cases such as M. v. McGregor 1982 S.L.T. 41, Finlayson, Applicant 1989 S.C.L.R. 601 and D. v. Kelly 1995 S.C. 414, counsel submitted that the appropriate guidance as to what the sheriff's approach should be was to be found in H. v. Harkness, and in particular in the opinion of Lord Coulsfield at page 294E to 295A. In scrutinising what the sheriff had done, one was looking for the main "building blocks", which could quite easily be set out in appropriate findings of fact, and not just for minor, if allegedly crucial, facts. In relation to the fundamental issue of lack of parental care, the sheriff had not held that there was a lack of parental care prior to Dr. Kelsey's intervention; nor did his findings in fact amount to an inferred finding that there would be a lack of parental care in the future. Under reference to Kelly, at page 419C-D, counsel emphasised that one was not concerned with any lack of reasonable care, but with an objective lack of care. Counsel noted that the sheriff appreciated that the "grounds of referral" included the statement of facts as well as the reason; but turning to the sheriff's own findings of fact, he submitted that apart form finding 10 (with its statements in the present tense) findings 1 to 14 did not themselves contain any finding of either impairment or lack of parental care. It would be dangerous and inappropriate for this court to draw any inferences or conclusions to such an effect, from these findings, when one did not know whether the sheriff himself had done so. Moreover, finding 14 brought one to a crucial date: since May 1997, B. had been not in his parents' care, but in foster care. It did not appear that there could have been a lack of parental care since that date. In relation to the succeeding findings in fact, it was submitted that one could not regard Mrs. N's conduct in telling B. that he was autistic as unreasonable, at periods when it was not unreasonable to believe that. And these findings stop short of any actual finding of impairment, any finding that any such impairment would be serious, and any finding that any impairment, even if serious, could be attributed to lack of parental care, past or future. Since B. had been in the care of others since May 1997, even finding in fact 18 provided no adequate basis for holding that there would be impairment to development in the future due to a lack of parental care: while that was the only finding which pointed to the future, it could only afford a basis for holding condition (c) to be satisfied if Mrs. N. had been unreasonable before B. passed into the care of others. And finally, neither the findings in fact nor the sheriff's Note gave any consideration to the question of degree: only if the child was likely to be impaired "seriously" in his development could the sheriff find the ground of referral established. He had made no finding to that effect.

Since the sheriff had referred neither to section 52(2)(c), nor to Harkness or the other cases which set out the appropriate test, it was submitted that the absence from his findings in fact and Note of anything which showed that he was applying the correct test must be seen as indicating that he had failed to do so. And in any event, it was submitted, the absence from his findings in fact and Note of material on these fundamental aspects of the matter meant that even if one applied the correct test, there was an insufficient basis for holding the ground of referral established. It was not suggested that the matter could now satisfactorily be remitted to the sheriff to apply the correct test. Nor would it be satisfactory to remit to him for reconsideration of his decision on the basis of any additional findings which he might wish to make. The court, it was submitted, should uphold the decision of the sheriff principal; but if that was not regarded as appropriate, then this court might have to consider whether any additional findings could be made, in the light of the sheriff's note, and whether or not these would provide a sufficient basis for holding condition (c) to be satisfied. There was no sufficient material for such additional findings, and in the result, the appeal should be refused in any event, and the sheriff principal's interlocutor of 16 March sustained.

In presenting the appeal, counsel for the appellant children emphasised that when the stated case was sought it was not suggested to the sheriff that he had failed to apply the correct test, nor had issues of causation, or seriousness or the like been drawn to his attention as requiring specific comment in the case. It was essential to keep this in mind, and only to hold that the sheriff had erred if there was a positive indication of error: mere silence on any particular matter was not indicative of error, if (as was submitted) what was there was sufficient for the decision which the sheriff had reached. Counsel referred in some detail to the cases which we have already cited. She submitted that there was no basis for saying that the sheriff had departed from the tests to be found in those cases, and in particular the approach discussed in H. v. Harkness. It was accepted that the test of lack of parental care was an objective one, and more generally that the test was of course as expressed in condition (c); and as Lord Coulsfield had pointed out in H. v. Harkness, it was not enough to show that the children might be better off or might have a better chance if they were left in the care of foster parents. But there was no indication at all that the sheriff had proceeded upon that erroneous view of the requirements. Moreover, it was wrong , in looking to the past, to see the question as being whether there had been unnecessary suffering, or serious impairment, or indeed lack of parental care at these earlier times. The past provided a basis for inferences as to the future; but the issue related to the future, the central question being (as Lord Coulsfield had put it in H. v. Harkness) whether lack of parental care was likely to cause serious impairment. Similarly, the question of seriousness related to such prospective future impairment. In the present case, these issues as to the future involved a consideration not only of past conduct and attitudes, but of persistent and current attitudes on the part of Mrs. N. in particular. While a distinction could be drawn between the grounds of referral, including the statement of facts, and the sheriff's own findings in fact and Note, the sheriff had found the grounds of referral established, and in considering what he had done, one must take into account the content of the grounds of referral, and not demand that these should have been expressed twice over, by being expressed as conclusions in the findings of fact and Note, as well as being expressed as a conclusion in the form of the decision. Reading all the material together, the sheriff's conclusion was clear, as was its basis.

Counsel for the reporter supported the appeal, focusing upon the two questions of whether the sheriff applied the correct test, and whether the correct test would lead to the same conclusion. She acknowledged that the sheriff had not expressly set out the "correct test"; but submitted that there was no need to set it out, and that there was no implication that it had not been applied. Contrary to what the sheriff principal had concluded, the sheriff had identified the conduct which led him to infer that there would be a lack of care in the future, resulting in impairment of development. It was evident that what had weighed with the sheriff was a combination of factors, including the current position of persistent erroneous belief, resulting not only in a determination that B. should attend the wrong kind of school, but in an actual stifling of his potential and the projected consequence for him that he would not develop his full potential. And while the sheriff principal had focused upon the word "significant" contained in Statement of Facts 9, that related to the past, and was not the sheriff's word. He was clearly entitled to hold, as he had, that the ground of referral was established, it being likely that the child would be impaired "seriously" in his development due to a lack of parental care. Counsel for the safeguarder also made certain submissions as to his own position, but on the merits of the appeal he adopted the submissions for the appellants.

In our opinion B's appeal must succeed. We see no basis for holding that the sheriff applied the wrong test. And we are satisfied, having regard to his findings in fact and Note, that he was entitled to hold the grounds of referral established. (It appears that Statement of Fact 7 should have been deleted; but this is of no consequence). Like Lord Coulsfield in H. v. Harkness, we are satisfied that the view of the judge who has heard the evidence deserves particular respect. The proper approach, as Lord Coulsfield pointed out is to ask the statutory question, namely whether lack of parental care is likely to cause serious impairment to the development of the child. While of course this can be broken down into various elements, each of which will require consideration, the "test" is nonetheless simply that which is set out in condition (c). In holding the grounds of referral established, the sheriff is in our opinion saying that this test has been met, and that the child is likely to be impaired, seriously, in his development, due to a lack of parental care. No doubt there are many cases in which one would expect a sheriff to have mentioned that these words are those of the relevant section of the relevant Act. No doubt there are other cases in which one would expect reference to the appropriate approach or tests, as in H. v. Harkness. But in the context of this application for a stated case, we cannot see that as essential or indeed worthwhile, or its absence as indicating error. If, of course, there was some positive indication that the sheriff had applied some other and erroneous test in dealing with some aspect of the matter, that would be another matter. But we can see no indication at all that he has done so. We would add that in our opinion, once a particular approach or test has been settled by authority, it is not necessary for every judge who has to make a decision in that field, on every occasion, to set out statutory provisions in full, or make what become rubber-stamp references to cases such as Harkness (or Wednesbury or Wordie).

As regards the adequacy of the material upon which the sheriff's decision is based, it is of course easy to imagine other matters which might have been referred to in his Note, or included in his findings in fact. But findings 15, 16 and 18 in particular, in the context of both the earlier findings and the sheriff's Note, appear to us to set out an actual and prospective situation which can properly be categorised as a likely impairment of B's development; and to relate it to persisting attitudes and conduct on the part of Mrs. N. in such a way that the impairment which is foreseen can properly be categorised as an impairment due to a lack of parental care on her part. Moreover, the type of likely impairment which is described is such that a sheriff would be well entitled to regard it as serious. We see no need for the statutory language ("impaired", "seriously" and "due to a lack of parental care") which express the legal conclusion, to be incorporated in the sheriff's findings of fact, or, in the circumstances of this case, in his Note. He moves to that language, and his conclusion flowing from his findings and Note, by finding the grounds of referral established.

As regards the other appellant, A., the sheriff held very similar grounds established, and in his findings in fact 5, 11, 12 and 15 he makes findings as to the attitude and understanding of Mrs. N. and Mr. N., and as to A's self-esteem and the effect on her potential, very similar to findings made in relation to B. at paragraphs 10, 15, 16 and 18 in his decision as to B. While the earlier background is of course different, A. being younger, we are satisfied that there is a sufficient basis for these findings, and that they, and the sheriff's Note, reveal no error as to the appropriate test and no insufficiency in the basis upon which the sheriff proceeded to his conclusion that the grounds were established.

We would answer the first two questions in each stated case in the affirmative, allow the appeal and restore the sheriff's interlocutor.