Welfare still rules

In S v L [2012] UKSC 30 (11 July 2012), the Supreme Court held that s 31(3)(d) of the Adoption and Children (Scotland) Act 2007, which allows a parent’s consent to the adoption of their child to be dispensed with where the child’s welfare requires this, is compatible with the European Convention on Human Rights and Fundamental Freedoms.

In upholding this argument, the Supreme Court:

• strongly endorses the 2007 Act and its human rights compatibility;
• adjusts the previous interpretation of the provision by the Inner House;
• offers significant guidance to sheriffs and practitioners on how the Act should be applied and what factors are relevant to dispensing with parental consent; and
• provides advice on how future devolution issues should be determined.

Background

The appeal arose from a direct adoption application at a sheriff court. The appellant, the child’s mother, had refused to provide her consent to the adoption. The sheriff had to consider whether her consent should be dispensed with under one of the grounds provided by the 2007 Act. The two grounds most commonly applicable are s 31(3)(c), that the parent is, and is likely to remain, unable satisfactorily to discharge their parental rights and responsibilities in respect of the child; and s 31(3)(d), that the child’s welfare otherwise requires consent to be dispensed with. If the court is not satisfied that the s 31(3)(c) ground has been made out in the evidence before it, then the court shall proceed to consider s 31(3)(d) as the other dispensing ground, concluding that s 31(3)(c) does not apply.

The mother had argued at proof that s 31(3)(d) did not adequately protect her right to respect for private and family life under ECHR article 8, and raised a devolution issue complaining that the Scottish Parliament had acted beyond its legislative competence by passing legislation which was not ECHR compliant. The sheriff remitted this issue to the Inner House, which found that the dispensing ground did not breach human rights standards (S v L [2011] CSIH 38; 2011 SLT 1204).

The mother appealed to the Supreme Court, maintaining her argument that the welfare dispensing ground was not compatible with human rights standards as it could not be read as narrowly as was required by the case law of the European Court of Human Rights.

Neulinger v Switzerland

Neulinger v Switzerland (2010) 54 EHRR 1087 is the most notable of the cases relied on by the mother. In Neulinger, a Grand Chamber decision in a child abduction case under the Hague Convention, the court repeated the well-worn Convention principle that the child’s best interests should be of paramount consideration to any court making a decision involving that child. However it went on to explain:

“The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family. On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development.”

Before the Inner House the Neulinger dicta proved problematic, in suggesting that the parent must have proved “particularly unfit” and that family ties can only be severed in “very exceptional circumstances”. This seemed to be at odds with the 2007 Act, under which the sheriff may refuse to find that the parent is, or will be, unable satisfactorily to discharge her parental rights and responsibilities in relation to a child, in terms of s 31(3)(c), but still dispense with consent under s 31(3)(d), thereby severing the family tie.

The Inner House dealt with the Neulinger problem by holding that the references to “particularly unfit” and “very exceptional circumstances” should be seen in context: a Hague Convention dispute between biological parents. It also had to deal with Gnahoré v France (2002) 34 EHRR 38 (which again stresses the importance of family ties), and Görgülü v Germany [2004] 1 FCR 410 (which is an adoption case and restates the “very exceptional circumstances” test). The only way to distinguish those cases was to stress that they turned very much on their own circumstances and were not cases concerning the legitimacy of adoption legislation.

The court stated that the “exceptional circumstances” (as opposed to “very exceptional circumstances”) test could be met in an adoption case, but only on a case-by-case basis and by substantive analysis. It reverted to the pre-Neulinger case of P v UK (2002) 35 EHRR 31 (freeing for adoption), in which it was observed that “a measure which would cut a child from its roots could only be justified ‘in exceptional circumstances or by the overriding requirement of the child’s best interests’”. The Inner House was content that s 31(3)(d) reflected that overriding requirement.

Potential difficulties could have arisen from this alignment of the test to P v UK. The lesser “exceptional circumstances” test and the “overriding requirement of the child’s best interests” were proffered as alternative rather than cumulative requirements, inconsistently with Neulinger and with Johansen v Norway (1996) 23 EHRR 33 (adoption should only be in exceptional circumstances and is only justified by the overriding requirement pertaining to the best interests of the child). That each case would require to meet an exceptional circumstances test could also prove distracting from the paramount “best interests of the child”.

After Neulinger

By the time the Supreme Court heard the appeal, the Strasbourg court had issued two notable post-Neulinger judgments, R and H v UK (2011) 54 EHRR 28 and YC v UK (Application No 4547/10), delivered on 13 March 2012. Both cases concerned adoption.

R and H v UK is significant for a number of reasons. In this instance, it states that Neulinger applies to adoptions, and removes the ambiguity regarding the weight to be given to the interests of the child brought about by cases such as Sahin v Germany (2003). Thus R and H confirms that “in all decisions concerning children their best interests must be paramount”.

In YC v UK the European Court considered the compatibility with article 8 of a decision to dispense with parental consent, under s 52(1)(b) of the Adoption and Children Act 2002. This permits a court to dispense with the parent’s consent to adoption where the child’s welfare so requires. Section 31(3)(d) of our Act largely echoes the wording of this provision.

YC v UK collates the different ways in which the court had previously sought to explain the “tests” to be met for ECHR compatibility in relation to adoption matters. In drawing together Johansen, Neulinger, R and H v UK and others, these are described no longer as “tests dictated” but as “considerations to be borne in mind”.

1. The best interests of the child are paramount.
2. It is in a child’s best interests: (i) that his ties with family be maintained except where the family has proved particularly unfit; and (ii) to ensure his development in a safe and secure environment.
3. Family ties may only be severed in very exceptional circumstances.
4. Where maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.

However, there is no longer any doubt as to their relative weight: the child’s best interests are paramount (Uyanik v Turkey, 3 May 2012).

YC v UK also attaches particular significance to the list of factors to which courts must have regard when exercising their dispensing powers. The Supreme Court, in applying YC v UK, explained that s 31(3)(d) must be read in conjunction with s 14 of the 2007 Act (considered below). As s 14 requires the court to consider all the circumstances of the case, but also sets out a list of factors which the presiding court is obliged to take into account, this means that s 31(3)(d) would also be compatible with article 8.

The Supreme Court also addressed the reference by the Grand Chamber in Neulinger that family ties may only be severed in “very exceptional circumstances”, by explaining that this was not a legal test but an observation about the rarity of the circumstances in which the compulsory severing of family ties will be in accordance with article 8. The court briefly considered statistics for those children in Scotland who are adopted on an annual basis against the number of children in the country. It concluded from this that the number of parents whose consent to adoption would require to be dispensed with under s 31, and against their wishes, would be very small and therefore only made in exceptional circumstances. The court’s explanation is a welcome comment on the ECHR jurisprudence and should clarify for practitioners that the exceptional circumstances in an adoption petition are not substantive and of a character unique to that petition, but are instead the fact of the adoption petition itself.

“Welfare otherwise requires”

The mother claimed that a court order which dispensed with her consent on the basis of the child’s welfare could not be “in accordance with law” as required by ECHR, article 8 because the word “welfare” lacked precision. In considering the welfare dispensing provision the Supreme Court observed that it is more complex than it might at first appear.

The starting point in applying s 31(3)(d) is an awareness that “welfare” must always be read in the context of s 14(3): the court must regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration. In doing so the court must have regard to the specific matters listed in s 14(4), so far as is reasonably practicable. These are (a) the value of a stable family unit in the child’s development; (b) the child’s ascertainable views regarding the decision (taking account of age and maturity); (c) the child’s religious persuasion, racial origin and cultural and linguistic background; and (d) the likely effect on the child, throughout its life, of the making of an adoption order.

Furthermore, a court could only dispense with a parent’s consent under s 31(3)(d) if satisfied that the welfare of the child “requires” it. Imposing a high test, that implies that what is being done is not merely desirable or reasonable, but necessary. Such a stringent definition of “requires” is appropriate for a variety of reasons. First, making an adoption order against a parent’s wishes is perhaps the most serious of interventions by the state in family relations. Legislation authorising the severing of legal and practical ties between a parent and child will not readily be construed as setting anything less than a test of necessity, and the court has to be satisfied that nothing less than adoption will suffice. Secondly, the Act is intended to operate in the context of ECHR rights, and it must have been intended that s 31(3)(d) would be construed accordingly. Finally, the Act is to be read so as not to place the UK in breach of its international obligations.

Rejecting the mother’s contention, the court commented that the 2007 Act made clear that before using its dispensing power the court must be satisfied that the child’s welfare required nothing less than the making of an adoption order. Consideration of welfare inevitably left much to the judgment of the presiding sheriff. However, the nature of the subject matter made it impossible to produce an exhaustive list of the circumstances in which an order dispensing with parental consent might be necessary. The court found that, when interpreted and applied correctly, s 31(3)(d) was not unforeseeable in its application and did not breach the requirement for legislation to be in accordance with law.

Endorsement

S v L is a welcome endorsement of the first piece of substantive adoption legislation passed by the Scottish Parliament post-ECHR. It confirms that international human rights standards are being respected by our legislators and gives guidance on how they can be protected by our judiciary in the practical application of the law. It should also act as a reminder that, although each party has human rights which should be observed, the need to safeguard and promote the child’s welfare throughout life must be the paramount consideration. 

PROCEDURE MATTERS

Delay and devolution warnings

The court commented on the significant and damaging delay from the devolution issue having been raised by the natural mother only after extensive evidence had already been heard.

It set out the approach required of sheriffs where devolution issues are raised. They must take a proactive approach in getting to the root of the devolution issue, making their own decision as to whether the issue has any substance and dealing with it accordingly. Where an issue arises as to the compatibility of a piece of Scottish legislation with the ECHR, the court is to look closely at the legislation and apply ordinary principles of statutory interpretation to derive the meaning of the contested provision. Where its language provoked uncertainty, the context of the provision within the legislation, and the legislation itself, ought to be examined. This should allow the intended meaning to be clarified.

Where the application of such principles led to a reading of the legislation which would be incompatible with the ECHR, the court should apply the special interpretative duty imposed by the Human Rights Act 1998. The court would then move to consider whether the legislation could be interpreted in an ECHR-compatible way using the Act and, if it could achieve such a reading, the legislation would fall within the legislative competence of the Scottish Parliament and the devolution issue would be overcome.