Abstract
Publications and news
Changes to reduce children’s wait for a permanent home
Adoption in Scotland is to be further streamlined to cut down on the time children have to wait before becoming part of stable and loving families.
Scotland’s Adoption Register (SAR) is now available online, allowing prospective adopters to view children’s profiles directly for the first time. The safe and secure online platform means that potential matches should be made more quickly and easily. The system is called Link Maker and only authorised practitioners and adopters can access it; authorisation has to be granted by individual adoption agencies following the normal adoption approval procedure.
Activity days are set to continue with another six planned following positive feedback after a successful three-day pilot. Prospective adopters and children meet in a safe, fun and informal environment that helps children and potential adoptive families to get to know each other.
In October 2016 it was announced that the SAR had made its 300th match since being set up in 2011.
Independent review of system to be driven by those with experience of care
In September, First Minister Nicola Sturgeon announced that those who have experienced the care system will be the driving force of an independent review of how Scotland treats its looked after children. One thousand people who have experienced care will have a chance to speak directly to the First Minister about this experience to help inform improved and inclusive practice. The ‘root and branch’ review will examine the culture and practices of the existing system, building on its strengths to make it work better for those in care.
Move to increase age of criminal responsibility from 8 to 12 years old
The minimum age of criminal responsibility in Scotland is to be increased to 12, under plans set out by the Minister for Childcare and Early Years. The intention is to bring forward a bill, with the change implemented in time for Scotland’s Year of Young People in 2018.
At eight years old, Scotland currently has the lowest minimum age of criminal responsibility in Europe and this move will bring the country in line with UN and international standards. The minimum age in England and Wales is 10.
The increase will include safeguards to allow the police to deal with and investigate the most serious and exceptional offences involving children under 12.
In 2010 the age of criminal prosecution was raised to 12, meaning that no one under that age could be prosecuted or sentenced in the criminal courts; instead they would be dealt with through the Children’s Hearings system.
Raising the age of criminal responsibility means that the child will not have a criminal record in relation to offences that took place before they reached the age of 12.
The decision to raise the age was informed by the Minimum Age of Criminal Responsibility Advisory Group, which included those working with children and victims, as well as the Police and Crown Office. The Group reported in March 2016 when a key recommendation was to raise the minimum age to 12, accompanied by safeguards. In the ensuing consultation exercise, 95% of those responding supported an increase to 12 or above.
The UN Committee on the Rights of the Child has stated that setting the age of criminal responsibility below this age is not ‘internationally acceptable’.
The role of the solicitor at Children’s Hearings
The Scottish Legal Aid Board commissioned a study by CELCIS into the role of the solicitor in the Children’s Hearings system. The executive summary carries a number of observations and recommendations, principally in relation to solicitors representing birth parents at Hearings (see www.chip-partnership.co.uk/wp-content/uploads/2016/10/CELCIS-SLAB-Executive-Summary-2016.pdf).
As an observation, there is a desire to maintain the non-adversarial nature of Hearings. Given the serious decisions that are made and their impact on children and families, facts and opinions need to be tested to ensure that informed decisions are made and those with a right to be heard have their views represented.
Cases
These are available on the Scottish Courts website: www.scotcourts.gov.uk.
Adoption order revoked
Appeal by LO in the petition under the Adoption and Children (Scotland) Act 2007 by N and C
Court of Session, Edinburgh
Extra Division of the Inner House: Lady Clark of Colton, Lords Menzies and Glennie
16 February 2017 [2017] CSIH 14
An adoption order was issued by a sheriff in 2015 and the decision upheld by a Sheriff Principal in 2017. This order was recently revoked at the Court of Session.
The child who was the subject of the order had been placed with approved kinship carers, N and C, since just before his second birthday in August 2013 due to his mother's offending, alcohol abuse and behavioural problems.
In 2015 the carers applied to adopt the child and the application sought to dispense with the mother's consent with reference to sections 31(3)(d) and (4) of the Adoption and Children (Scotland) Act 2017, expressed as: … she has parental rights and responsibilities but is unable to satisfactorily discharge those responsibilities or to exercise those rights, and that she is likely to continue to be unable to do so, or that the welfare of the child otherwise requires her consent to be dispensed with.
The sheriff granted the order and this decision was appealed unsuccessfully to the Sheriff Principal.
The basis of this appeal is that first, the ‘incapacity' test had been conflated with considerations about the child's welfare and second, the minimum intervention principle in relation to decisions about children had not been demonstrably applied. The capacity of the mother to discharge her responsibility or exercise her rights as a parent in respect of the child now and in the future first needs to have been assessed before addressing the issue of the child's welfare.
Lady Clark stated that: In paragraph 29 of S v L, Lord Reed compares and contrasts section 31(4) with section 31(3)(d) which can be considered by the court only as an alternative to section 31(4) or 31(5), if one of these grounds is not established. Section 31(4) is concerned with an assessment of whether a parent is unable to discharge parental responsibilities or exercise parental rights, including whether they will continue to be unable to do so, and does not include general welfare considerations. Such welfare considerations will require to be considered if the court concludes that section 31(4) does not apply and, as an alternative, considers whether section 31(3)(d) is established as a ground to dispense with consent of the parent.
The court held that less drastic measures than adoption, such as a section 11 residence order, should have been considered by the sheriff which would secure the welfare of the child in all the circumstances of this case, namely a stable kinship placement which the mother was not seeking to disturb. The residence order (now known as a kinship care order) would accord parental rights and responsibilities to the carers without divesting these from the mother.
Local authority appeals against refusal of applications for Permanence Orders with authority to Adopt (POAs)
The City of Edinburgh Council Appellants v RO RD
SAC (Civ) 15 XO55/16
29 November 2016
These are appeals by a local authority from the sheriff’s decision to refuse applications for POAs to adopt two children, MG and AO. The sheriff’s decision followed 34 days of proof. The Appeal Court rejected the appeal, quoting Viscount Simon in Thomas v Thomas 1947 SC (HL) 45 (at p. 47): ‘We are satisfied that the whole evidence as contained in the findings in fact can reasonably be regarded as justifying the conclusions arrived at by the sheriff.’
What is interesting about this appeal are the general observations of the court, which echo the concerns raised in England in relation to social work practice there, in particular Lord Munby’s views in RE B-S.
Sheriff Principal Pyle delivered the judgment stating: Cases involving state intervention in family life which seek to bring about the severing of family ties are often the most important in a sheriff's caseload … In dealing with these difficult issues it is not only the sheriffs who have to apply the law; social workers must also do so. They will doubtless derive assistance from their training and experience but they also must apply the detailed statutory provisions set out in the relevant legislation, particularly in the present context the various rules contained within the Adoption and Children (Scotland) Act 2007. And in doing that, it is insufficient for them simply to ask the question: ‘What is in the best interests of the child?’ – the paramount consideration (2007 Act, sections 14(3) and 84(4)). They must also take into account the other statutory provisions and, crucially, the jurisprudence which has developed since the Act came into force. Accordingly, in their day-to-day work they must repeatedly ask themselves such questions as: ‘What is the minimum intervention we should make in the life of this child?’ and the essential subsidiary question: ‘What else could we do to avoid a more drastic form of order such as adoption?’ It would be an understandable reaction for a social worker to decide that the safety first approach is to sever the relationship between the child and the parent; it would be all too easy to conclude that a drastic consequence for a child is much more likely to become a reality if a child is left in the supervised care of a parent. But that would be a breach of duty and, from the particular perspective of a court, a gross failure to apply the law. We are troubled that in this case, as in others which come before the courts, the social workers decide to go down one path and appear unwilling to keep under continual review the objective of preserving personal relations between parents and children, and to ask the questions which the law requires them to do, especially where options short of adoption would be sufficient intervention in family life. It is an obvious point that the taking of an appeal in itself, together with the consequent delay, have the potential to cause further damage to the child’s welfare.
The other matter in this case – and it has come up in others – is the need to constantly review the current circumstances of the parents when assessing whether they are able to care for the child. Often, because of the length of time it takes from the start of the process until when the sheriff is making a decision, the parents’ situation will have changed. An assessment needs to be done in terms of their current ability to meet the child’s needs. By all means social workers should refer to the history of parenting this child and any other children, but they must make sure that there is an up-to-date context in which to place a recommendation.
Appeal regarding which local authority must pay for child’s care
East Renfrewshire Council v decision of the Sheriff at Paisley
SAC (Civ) 14 [PAI-B226-16]
18 May 2016
This appeal revolves around the interpretation of section 201 of the Children’s Hearings (Scotland) Act 2011 in defining the relevant (implementing) local authority under a Compulsory Supervision Order (CSO). The CSO required a 15-year-old child to continue to reside in a residential establishment in Lancashire. The cost of this resource was £3650 per week so it was important to identify correctly which local authority should bear this expense.
It seems that the child had always resided within Highland Council, firstly with his grandmother and then his mother, and had been living here when he was moved to the establishment in Lancashire. Since April 2013, the child’s mother and brother have lived within East Renfrewshire Council. There is direct and indirect contact with the child, who has no current connection with the Highlands.
A sheriff and Sheriff Principal believed East Renfrewshire to be the implementing authority while another sheriff believed that it should be the Highlands; clarification provided by the Sheriff Appeal court is very welcome.
The court took the view that in the 2011 Act, ‘relevant local authority’ in relation to a child means the local authority for the area in which the child predominantly resides, or, where the child does not predominantly reside in the area of a particular local authority, the one with which the child has the closest connection. However, no account is to be taken of any connection with an area that relates to a period of placement in a residential establishment.
Everyone agreed that the child did not predominantly reside in the area of either Highland or East Renfrewshire Councils, but his closest links, as at the date of the Children’s Hearing making its determination or as at the date of the sheriff conducting his review, would be to East Renfrewshire Council. The difference of opinion arose when determining whether the period of time when the child resided in Lancashire should be ignored and whether the last place of his residence and connection should be based on where he was living immediately before he moved to Lancashire.
It was decided that the reason why that restriction operates is to prevent a local authority in whose area the residential establishment is situated (Lancashire) becoming responsible for the costs of all children placed there by other local authorities. The above mentioned exclusion relates to a connection arising directly from placement in a residential establishment and does not exclude links that stem from other reasons. So, while the child is residing in a residential establishment, if for example, his family moves, the fact that he is there will not prevent a change in the implementation authority. This should be determined by where the child predominantly lives (were it not for his placement) or the area where he has the closest connection.
This might mean the implementation authority changing several times according to the whereabouts and circumstances of the family.
In determining the implementation authority, it is a question of fact and circumstance and the welfare principle will not apply. This is similar to the situation when determining who is a Relevant Person.
East Renfrewshire Council was ordered to reimburse Highland Council for costs in relation to the duties imposed by the disputed compulsory supervision order and the matter was referred back to the sheriff for disposal.
In observation, the majority of children who are adopted and fostered in Scotland are or have been involved in the Children’s Hearings system. This means that court cases which relate to Children’s Hearings decisions hold a particular relevance when making plans to move forward towards permanence for children.