Abstract
Two cases have been reported in which children have been placed across the border between England and Scotland. In both cases the practice is not new, but the issues identified do not appear to have been considered earlier by either the local authorities or courts involved in making such placements. The difficulties arise because there is limited legislation dealing with the recognition of laws between the jurisdictions and such legislation as there is tends to be specific rather than general. It has long been established that international agreements such as Brussels IIA and the Hague Conventions on Adoption and on Child Protection do not apply as between the individual countries of the UK. It is an oddity of the UK’s system of laws that neither of the cases noted below would have presented these difficulties had the borders across which the children were being placed been fully international borders and the placements subject to international treaties and conventions.
English local authority placing a child in a Scottish secure unit
Re X (A child) & Re Y (A child)
High Court (Family Division) Munby P
12 September 2016 [2016] EWHC 2271 (Fam)
and
Cumbria County Council & Ors, Re Children X, J, L & Y
Inner House, Court of Session, Lord Drummond Young, Lady Clark of Calton & Lord Malcolm 15 December 2016 [2016] ScotCS CSIH92 These cases involve children who were subject to secure accommodation orders made by English courts under section 25 of the Children Act 1989. The local authorities concerned had each obtained the orders properly and lawfully, but had then been unable to find an available place in a secure unit in England for the child. There is a chronic shortage of secure accommodation and for some time local authorities, particularly in the north of England where the placements might be nearer the child’s home, have been looking to Scotland for places. In 2016 the courts raised for the first time whether these placements are in fact lawful and a representative sample of cases was listed before the President for determination.
The President considered section 25, which deals only with the court authorising placement in England, and the Children (Secure Accommodation) Regulations 1991, which require any secure accommodation in which a child is placed to be approved by the Secretary of State, and concluded that the statutory scheme does not provide the power to an English court to make an order for the placement of a child in secure accommodation in Scotland. He notes that as between England and Wales, there is one family court jurisdiction and although there are separate schemes – section 25 of the Children Act 1989 for placements in England and section 119 of the Social Services and Well-being (Wales) Act 2014 for placements in Wales – any court in either England or Wales can make an order under either Act depending on where the child is to be placed. There is no such jurisdictional cross-over between England and Wales and Scotland. He also notes that a local authority in England requires the approval of the court under Schedule 2, para 19 to arrange a child in their care to live outside England and Wales. Para 19(3)(c) requires the child’s consent to such a placement, which can only be dispensed with if he or she does not have sufficient understanding and is to live with a parent, guardian or other suitable person. These conditions did not apply either to the children being considered in these cases or to the accommodation being suggested.
The court also considered the powers of the Scottish courts to make an order placing a child in secure accommodation. The Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 allow for the care of a child subject to an English care order to be transferred to a Scottish local authority. The care order will then have effect as if it were a compulsory supervision order under the Scottish legislation. The Children’s Hearings (Scotland) Act 2011 and the Secure Accommodation (Scotland) Regulations 2013 allow for the placement of a child in secure accommodation in Scotland, England or Wales. However, it would not be possible to transfer the children concerned to Scotland, as the provision refers only to a full care order, not an interim care order as applied in these cases and in most applications for secure accommodation orders.
The President then found that, as there were no statutory provisions for the placement of a child in secure accommodation in Scotland, the restrictions in section 100 of the Children Act 1989 on a local authority did not apply and it was possible for the High Court to order such a placement using the inherent jurisdiction. However, an order made under the High Court of England’s inherent jurisdiction cannot be registered in Scotland, made the subject of a mirror order or be otherwise recognised and enforced. The advice received from a Scottish lawyer was that the local authorities would have to petition the Inner House of the Court of Session to request that they use the nobile officium, an extraordinary power of the Court of Session to make orders where there is no legal remedy, to permit the detention of the child in a secure unit in Scotland.
The High Court made orders allowing the detention of the children in Scottish secure units until the Court of Session had heard the proposed petition. The Court of Session agreed that the cases exposed a gap in the law and endorsed the President’s suggestion that the Government should address this gap as a matter of urgency. In the meantime they were content that the use of the nobile officium was justified, although unprecedented, in this case and likely to be so in several other comparable cases that were said to be in similar difficulties. Orders were made authorising the children’s detention in Scotland in accordance with the orders of the High Court.
The Government has added a clause to the Children and Social Work Bill currently going through Parliament, which will allow a local authority with a secure accommodation order to place a child in secure accommodation in Scotland. Until that comes into force, any local authority wanting to place a child in secure accommodation in Scotland will need to make applications both to the High Court and to the Court of Session.
Scottish children placed for adoption in England
In the matter of A,B, C, D, E & F (Children)
High Court (Family Division) Munby P
17 January 2017 [2017] EWHC 35 (Fam)
The President was asked to consider preliminary points in three cases where children subject to a Scottish permanence order had been placed with adopters resident in England. The adopters had each made their application for adoption to their local English court. The question was raised as to the impact of the Permanence Order with authority to Adopt (POA) on the status of the birth parents in the English adoption proceedings.
It was clear that the making of a POA satisfied the third condition in section 47 of the Adoption and Children Act 2002 and therefore there was no requirement to consider the first condition (consent or dispensing with consent). However, there was some doubt as to whether the birth parents retained any parental responsibility for the children that would require them to be parties to the adoption proceedings.
Section 105(2) of the 2002 Act provides that a Scottish POA has the same effect in England as it does in Scotland, but as if the references to the ‘parental rights and parental responsibilities’ were to ‘parental responsibility’ and section 52(6) defines a parent as ‘a parent having parental responsibility’. The Children Act (Scotland) 1995 sets out separate lists of parental rights and parental responsibilities whereas the Children Act 1989 defines parental responsibility as all the rights, powers, duties and responsibilities that a parent has by law. One of the Scottish rights and responsibilities concerns ‘personal relations and direct contact’ which must vest in a person other than a local authority. Sections 81 and 82 of the Adoption and Children (Scotland) Act 2007 allow the court to make a permanence order with respect to a child, which vests all the other rights and responsibilities in a local authority. Advice from a Scottish advocate was that, in practice, the sheriff making a POA will vest all the rights and responsibilities possible in the local authority and make an order restricting the exercise of the right of contact, typically to minimal indirect contact only. The question to be considered was whether this retained aspect of parental rights and responsibilities was sufficient to qualify the birth parents as parents under the 2002 Act.
Held
The President found that contact is, at most, a facet of parental responsibility and section 3 of the 1989 Act defines parental responsibility as all of the rights and responsibilities that a parent has. A parent whose only right is the right to contact cannot be said to continue to have parental responsibility. He therefore concluded that under the Family Procedure Rules 2010, none of the birth parents in these cases were required to be joined to the adoption applications.
The President noted that under the 2007 Act, once a parent’s consent has been dispensed with in the making of a permanence order, there is no provision for the parent to apply for leave to oppose the adoption application, and the Sheriff Court Adoption Rules 2009 do not require that the birth parents be served with notice of the application for an adoption order. The sheriff does, however, have discretion to give notice to any person he considers appropriate. The President then noted the judgment of Lady Smith in East Lothian Council, Petitioners [2012] CSIH 3, 2012 FamLR 7, which requires the court to consider whether any provision for contact in the permanence order gives rise to any right to a family life under Article 8 of the European Convention on Human Rights for any family member. If it does, Lady Smith made it clear that the Court of Session would expect that person to be given notice of the adoption application in order to protect their interest in contact with the child. Similarly, under Family Proceedings Rules (FPR) 2010 rule 14, an English court has discretion to join any person to the proceedings. The President concluded that where a birth parent retained exercisable rights on contact they should be joined to the proceedings as a matter of discretion, but that it should be made very clear that they may only be heard on the issue of contact.
The Scottish local authorities took issue on whether they should be bound by an order of the English court, which they submitted had no jurisdiction to join them as parties to the adoption application. The President declined to consider this argument, finding that the obligations on the Scottish local authorities, as adoption agencies which have taken part in the arrangements for the adoption of the children, to be joined as parties and to provide reports, are contained in section 43 of the 2002 Act and FPR 14.11, and not by order of the court. In any event, the Scottish local authorities have placed the children for adoption and there is every reason to expect them to co-operate in achieving an adoption order.
Finally, the President observes that the A58 Application for Adoption form does not envisage an application where the child to be adopted is the subject of a Scottish permanence order and is therefore extremely difficult to complete in these circumstances. He recommends that the FPR Committee address this as a matter of urgency.
Revocation of an adoption order
In the Matter of the Human Fertilisation and Embryology Act 2008 (Case O)
High Court Family Division, Munby P
13 September 2016 [2016] EWHC 2273 (Fam)
This case is one of a series in which clinics licensed by the Human Fertility and Embryology Authority (HFEA) had failed to ensure that the appropriate paperwork was properly completed by couples attending for fertility treatment. Twenty such cases have been dealt with or are pending in the High Court and the HFEA is said to have identified 90 altogether.
The applicants in this case are referred to as X and Y, two women who made the decision that they would each bear a child through assisted reproduction, using the same sperm donor. X attended St Bartholomew’s Hospital first for treatment and gave birth to C1 in 2010. The intentions of X and Y to be the joint parents of their children were clear throughout; they attended treatment together and signed the consent forms provided, believing that any child born as a result would be the legal child of both of them. X and Y became civil partners while X was pregnant with C1 and when C1 was born they registered the child jointly as they believed they were entitled to do. Later Y conceived C2 and while pregnant received a telephone call from St Bartholomew’s telling her that the paperwork was incomplete, meaning that she was not legally the parent of C1. Although the checklist in the file had been ticked to show that the forms were all signed at the proper time, the file was incomplete, the necessary form was missing and the file contained some paperwork relating to a different patient.
The couple took legal advice and were advised, following AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), that the administrative failures of the clinic meant that Y was not entitled to register as the second female parent of C1 and that the only way to ensure that X and Y were equal legal parents of C1 would be to undergo a step-parent adoption. The couple went through the adoption process, describing it as intrusive and upsetting, finding the experience of having to surrender C1’s original birth certificate particularly distressing. C2 was born and properly registered as the legal child of both X and Y, and the couple were particularly concerned that as C1 now had a certificate as an adopted child their children did not have the same status.
The adoption order was made in 2014 and in February 2015, Theis J gave her judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, a case with similar facts. Theis J decided that where the clinic had mislaid paperwork she was able to make a finding on evidence that it was more likely than not that the appropriate documents had been completed and she could make a declaration of parentage in favour of the partner of the treated woman. This process has been followed in subsequent cases and children have been registered as the child of a couple who underwent treatment together, using the declaration of parentage and without having to adopt.
When X and Y heard about this case, they were further distressed by the knowledge that they had gone through the adoption process and changed C1’s status to that of an adopted child unnecessarily and made an application to revoke the adoption order. The President points out that revoking an adoption order is an extraordinary step to take and that the case law, while allowing the use of the inherent jurisdiction to set aside an order, does so ‘only in highly exceptional and very particular circumstances’. That the facts themselves are exceptional is not sufficient reason to set an order aside, nor is the hurt of the parties. The President found in this case that the adoption process was carried out while everybody involved was under the impression that Y was not the legal mother of C1. This meant that the application was made by Y, consented to by X, reported on by the local authority and ruled on by the judge, all ‘labouring under a fundamental mistake’ of law. By revoking the adoption order the President was not only righting a wrong, he was recognising a ‘legal and factual reality’ of Y’s parentage of C1.