Permanence changes

The introduction of the Adoption and Children (Scotland) Act 2007 continues to produce a raft of case law, and has proved to be an area of law ripe for discussion. Here is a summary of the cases brought before the courts in the last few months. 

Devolution question

In the case of S v L [2011] CSIH 38 (21 June 2011), the sheriff sought a ruling from the Inner House as to whether s 31(3)(d) of the 2007 Act was compliant with the respondent and the child’s right in respect of article 8 of the European Convention on Human Rights (the right to respect for family life).

The provision in question in the 2007 Act provides that where the earlier tests as set out in that section are not satisfied, the consent of the parent or parents can still be dispensed with if “the welfare of the child otherwise requires the consent to be dispensed with”. The respondent mother argued that the reference to welfare in this way was “impermissibly speculative”. The court held that the provision is compliant with the ECHR. It noted that a test for dispensing with consent which included looking at the child’s best interests had to be Convention compliant, and that the section in question had a legitimate aim.

The case was accordingly remitted back to the sheriff to proceed.

Transitional provisions

In the case of Aberdeen City Council v O [2011] CSIH 43 (7 July 2011) the snappily titled Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009 fell directly under the spotlight. The issue arose due to a lacuna in these provisions. The order provides that any freeing for adoption applications under the previous legislation (the Adoption (Scotland) Act 1978) raised before the appointed day, 29 September 2009, and concluded by 28 September 2010, would be deemed to be a permanence order and treated accordingly. However, the order failed to provide for what should happen if an application for freeing had been raised by the appointed day but failed to conclude by 28 September 2010, which is exactly what happened with this action. The mother and father argued that the action was incompetent and should be dismissed.

The Inner House gave a decisive opinion, holding that the intention of the Scottish Parliament had been to allow a freeing application already raised to continue to the point of determination. They held that the gap in the order was “per incuriam”, in other words, attributable to a lack of care in the drafting process. They go on to state that the Scottish ministers could not have conceivably have imagined that all actions raised could be concluded by the all-important date of 28 September 2010. They held that the proceedings should not be rendered futile due to an arbitrary cut-off date. The bench also noted with grave concern that at the heart of the matter was a five-year-old child whose prospects of being successfully adopted were diminishing further with every delay in court proceedings.

The opinion included a direct criticism of the Scottish Parliament’s practice of treating transitional provisions such as this one as "commencement orders", which practice apparently allows provisions such as these to be drafted by individuals who are not parliamentary draftsmen. Their Lordships suggested that the gap in the provision would not have occurred if a parliamentary draftsman had been responsible for the order.

At the time of going to press, the possibility of an appeal in this case was still live. Watch this space!

“Lifetime test”

The next case for discussion is that of City of Edinburgh Council in respect of L (Dundee Sheriff Court, 25 July 2011). This case focused on whether a permanence order with authority to adopt should be granted, or whether a permanence order without authority to adopt, with an ancillary order for direct contact, should be made instead (as was contended by the respondent mother).

Sheriff Pyle held that a permanence order with authority to adopt was appropriate and would be of benefit to the child throughout the whole of its childhood. The interesting point here comes with the commentary as to how ss 14 and 84 of the 2007 Act relate to one another. The former is contained within chapter 2 of the 2007 Act and directs the court to consider the need to safeguard and promote the welfare of the child “throughout its life”. The latter is in chapter 7 of the Act, which deals with permanence orders. Section 84(4) states that a court must consider the need to safeguard and promote the child’s welfare throughout its childhood.

Sheriff Pyle considered that the logical application is to apply the childhood test when considering the granting of a permanence order with authority to adopt, and to reserve consideration of the lifetime test for when a later adoption application was before the court.

This differs to decisions made by other sheriffs on the same matter. Specifically, Sheriffs Mann and Mackie have, in previous cases, decided that the court should first apply the childhood test when deciding whether to grant a permanence order, and then apply the lifetime test when deciding whether to grant authority to adopt. Sheriff Pyle’s view was that a granting of authority to adopt does not necessarily mean that the child will be adopted. That will depend on the circumstances of the child and the prospective adoptive parents. A court will still require to consider all matters at the time an adoption order is applied for. Sheriff Pyle therefore identified that point in proceedings as the appropriate point to consider the lifetime test, not least because adoption itself has “lifetime legal consequences”.

Application to remit

The final case to be commented on (although the reported cases continue to come through thick and fast!) is Midlothian Council re SC (Edinburgh Sheriff Court, 29 August 2011). This case was an application for a permanence order with authority to adopt. The petitioner sought remit to the Court of Session. The application had been raised at Edinburgh Sheriff Court when in fact the child was in Clydebank, hence the application to remit to cure the jurisdiction problem.

One argument put forward by the respondent mother was that issues regarding her contact with the child were pending. It was accepted that a previous decision on contact had been made based on some information that might have been wrong. A s 95 application (a request to vary a child’s supervision requirement when an application for permanence is extant) had therefore been made to the sheriff. The matter was remitted by the sheriff back to the children’s hearing, but a report for the court was now required. It was argued for the respondent that if the current application for a permanence order was simply dismissed, the children’s hearing would be free to deal with the matter of contact without delay.

Sheriff Holligan noted this problem but was not persuaded. He held that he could remit the case to the Court of Session, although he warned that this should not be done as a matter of course as each case should be considered on its own circumstances. He noted his concern about the delay that would occur if the petition was dismissed and re-raised. He considered that the Court of Session could deal appropriately with the s 95 proceedings.

Given the plethora of actions under the 2007 Act that are currently before the Court of Session and various sheriff courts, the volume of reported cases is not likely to diminish soon, and will no doubt give rise to much further discussion.