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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 beoverturned 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 itwas 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.

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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

"is likely -

(i) to suffer unnecessarily; or

(ii) be impaired seriously in his health or development,

due to a lack of parental care"

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 caseof B., the reporter set out a Statement of Facts in support of this stated reason as

follows:

1. That until 29 May 1997 the child normally resided in family with his

mother J.N., his step-father A.N. and his sister A.R., at a stated

address;

2. That J.N. and A.N. have told the child he is suffering from autism, a

serious childhood disorder of higher brain function;

3. That J.N. and A.N. have withdrawn the child from mainstream

schooling and enrolled him in a school which caters for children with

severe disabilities;

4. That J.N. and A.N. refused to allow the child to be assessed by

community paediatric staff at the Royal Northern Infirmary, Inverness;

5. That a Child Assessment Order was granted at Dingwall Sheriff

Court on 29 May 1997;

6. That the results of the Child Assessment indicate that the child is not

suffering from autism;

7. That the child suffers from an asthmatic condition, the treatment of

which is unsupervised by a general practitioner;

8. That the parents Mr. and Mrs. N. have demonstrated a limited

understanding of the physical, social, emotional and educational needsof the child;

9. That the child has suffered a significant level of impairment to his

health and development.

In the case stated by the sheriff, he narrates at the outset the reason given for theattendance 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 ofreferral established?". We can well appreciate the difficulty which a parent may have

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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 inDrummondv.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 isno 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 nosuggestion 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 inDrummondv.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:

"1. Was there sufficient evidence to entitle the sheriff to find that thechild would be caused serious impairment to health or development

due to lack of parental care by the appellants?

2. On the facts found by the sheriff was he entitled to find the grounds

of referral were established with respect of the consequences for the

child of such a lack of parental care?".

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.

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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 suchconditions 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. (Aprocedural 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. removedB. 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:

"Dr. Kelsey's assessment is that B. is not autistic. None of the

professionals who have been involved with B. have seen thedisabilities spoken to or perceived by Mrs. N. or Mr. N. Although B.

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had had early developmental delay, he could with appropriate support

cope with mainstream schooling. Because of what Mrs. N. has told

him, namely that he is autistic, B. has a very low esteem of himself. B.

has a lot of potential which is being stifled by Mrs. and Mr. N's

erroneous perception of B's abilities."

Finding in fact 16 is in these terms:

"Even if Dr. Kelsey had diagnosed mild autism in B., she would still

say that B. could cope with mainstream school. It is not enough to give

B. the label of autism or Asperger's Syndrome; such a diagnosis is

irrelevant: what must be looked at is B's ability. B's ability is such that

if he remains outside mainstream schooling he will not achieve his true

potential."

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:

"Both Mr. and Mrs. N. show a limited understanding of the physical,

social, emotional and educational needs of B. with the result that B.

will not develop his full potential if circumstances continue as they

have done."

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 seehim." 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:

"I am satisfied on the evidence that I have heard that B. can easily cope

with mainstream school at O. school and that his mother's perceptions

about him are not in accordance with the observations of the

professionals. Mrs. N. has for a long time been on a crusade out of thebest of motives, but her motives have been inspired by information

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which if not wrong, is now overtaken by recent observed behaviour

and assessment of B. So long as Mrs. N. continues as she does, she will

(perhaps unwittingly) lower B's self esteem and deny him the chance to

realise his full potential."

In his Note accompanying his interlocutor of 16 March 1999, the sheriff principalobserves 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 couldof 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 toH. 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 turnedto 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 afactual view, and a "test", which we cannot relate to anything the sheriff says. That

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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. andMr. 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. Inconsidering 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. andMr. N. took as his starting pointH. v.Harkness 1998 S.C. 287. While noting earlier

cases such asM. v.McGregor1982 S.L.T. 41, Finlayson, Applicant1989 S.C.L.R.

601 andD. 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 inH. 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,

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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 alack 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 toHarkness 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. Therewas 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 hadreached. Counsel referred in some detail to the cases which we have already cited.

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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 inH. 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 inH. 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 careof 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 inH. 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 offacts, 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 wasestablished, 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 inH. v.Harkness, we are satisfied that the view of the judge who has

heard the evidence deserves particular respect. The proper approach, as LordCoulsfield pointed out is to ask the statutory question, namely whether lack of

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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 manycases 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 inH. 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 casessuch asHarkness (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 and18 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.