Abstract
Recent legislation
The Continuing Care (Scotland) Amendment Order 2017
This Order raises the age of “eligible persons” entitled to continuing care. Under section 26A of the Children Scotland Act 1995, the local authority has a duty to provide such care to any eligible person who is at least sixteen years of age and who has not yet reached the age of nineteen. The Order came into force on 1 April 2017.
Cases
The Supreme Court ruling in the case of Re EV (A child); Re EV (A child) (No 2) [2017] UKSC 15 Lady Hale & Lords Kerr, Wilson, Reed and Hodge
Delivered 1 March 2017
The Supreme Court judgment has restated and clarified how legislation under the Adoption and Children (Scotland) Act 2007 should be interpreted and applied. It is a landmark case that raises important considerations for practitioners in terms of their practice in assessing and evidencing the need for a Permanence Order (PO). A Permanence Order is the means by which a local authority can apply to the court for the removal of some or all Parental Rights and Responsibilities vested in a parent or another person. The PO may also contain a provision for authority to adopt – a Permanence Order with authority to adopt (POA). Where a POA has been obtained, thereafter, prosepective adopters may directly petition the court to adopt the child in a process which should be much less contentious, given that the majority of PRRs will have already been transferred to the local authority.
Circumstances of the case
A three-year-old child was subject to a compulsory supervision order made by a Children's Hearing. She had been in care since birth due to concerns about her parents' abilities to care for her. The local authority had applied to the court for a Permanence Order with authority to adopt (POA) due to the following concerns:
Both parents had learning difficulties. There was an allegation that the father had been involved in criminal sexual behaviour towards another learning disabled adult three years previously. There was an allegation that the father had told the mother that he had had sexual thoughts in respect of her 10-year-old daughter. The father had been convicted of making threatening remarks towards social workers in a telephone conversation with the mother. It was unlikely that the father would engage with the local authority and he needed their support to overcome his parenting deficiencies in respect of the child.
Legal history
The Application was granted by the Outer House of the Court of Session and the decision was appealed to the Inner House of the Court of Session. The Inner House upheld the decision to grant a Permanence Order, without authority to adopt. The local authority had conceded the adoption element of the PO. This was because the Outer House, in granting authority to adopt, had not considered the matter of the likelihood of the child being placed for adoption, which they are required to do.
The parents appealed the decision of the granting of the PO to the Supreme Court who issued their judgment on 1 March 2007.
Judgment
The parents' appeal was allowed and a number of observations made in the court's decision.
I. Threshold test
A significant aspect of the judgment is that a “threshold test” must be satisfied before a court may consider the making of such an Order. The Adoption and Children (Scotland) Act 2007 at section 84(5)(c)(ii) states that where there is a person with parental rights and responsibilities, it must be established that the child's residence with that person “is, or is likely to be, seriously detrimental to the welfare of the child”. In coming to its decision in terms of the threshold test, the court referred to the English case J (Children) (Care proceedings: threshold criteria), Re [2013] UKSC 9, [2013] 3 All ER 1.
The courts had not made specific determinations as to whether the threshold test for the making of a PO had been met in the current case.
The application of this test takes precedence even over considerations about the child's welfare and these two elements must be dealt with seperately and in the correct order; however, they had in this case, as in others, become conflated.
For this reason, the court was critical of the stated decision in the case of TW v Aberdeenshire Council [2012] CSIH 37; 2013 SC 108.
The court did refer favourably to the opinion given by Lord Drummond Young who, in R v Stirling Council [2016] CSIH 36 2016 SLT 689, at para 15 stated: The threshold test is in our opinion a matter of fundamental importance, and we must express regret at the manner in which section 84 of the Adoption and Children (Scotland) Act 2007 is structured. In that section the fundamental threshold provision comes at the end, after the subsections dealing with the welfare of the child. It would clearly be more sensible to state the threshold test at an earlier point, before the welfare provisions, because the threshold test must be satisfied before any of the other provisions becomes relevant. As matters stand there is an obvious risk that the sheriff will fail to appreciate the fundamental importance of the criterion in subsection (5). That is what appears to have happened in the present case.
II. The function of the judge
Where information is placed before the court, it is for the court to make a judgment as to its relevance in assessing the application of the threshold test and in assessing the weight that should be given to evidence presented.
The Scottish Courts were mistaken in focusing on the local authority's assessment of the father and whether they were justified in coming to the conclusion that the child could not live with him. Instead, the courts should have heard evidence as to how likely it was that living with her father could be seriously detrimental to the child's welfare.
The local authority had concluded that the father posed a risk to the child, without first testing the suspicions which supported that conclusion. The court needed to investigate the suspicions about the father and decide if, on the balance of probabilities, he had committed the acts or said the words of which he had been accused.
As Lord Hoffmann put it in Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11, [2008] 4 All ER 1, para 2: If a legal rule requires a fact to be proved (a fact in issue) a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The act either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, the value of zero is returned and the fact is treated as not having happened. If he does discharge it, the value of one is returned and the fact is treated as having happened. It appears, from the Lord Justice-Clerk's linking the allegation concerning the father to the child's safety, that she understood the Lord Ordinary to be implying that the father might sexually assault his own child. If the Lord Ordinary intended to imply that there was a real possibility that the father would sexually assault his daughter, then it is far from clear from what he wrote in his opinion. Such an important finding should not be left as a matter of inference.
III The transparency of the Judge's reasoning
The Judge requires to explain his decisions and give factual reasons for these.
There were a number of issues where decsions had been made but the reasoning behind the decision was not sufficiently expressed.
In relation to the father's exercising contact with the child, the court had not stated how it came to decisions which led to the prohibition of contact between the father and child. These had to be fully explained.
The Lord Ordinary did not make any finding as to whether the child was likely to be placed for adoption. A condition of granting a POA under section 83(1)(b) is that the court has to be “satisfied that the child has been, or is likely to be, placed for adoption”. This aspect of the petition was abandoned on appeal to the Inner House.
Before making a PO, section 84(5)(b)(ii) of the 2007 Act states that the court must have regard to the child's religious persuasion, racial origin and cultural and linguistic background. The child's mother is British and her father is Sri Lankan, yet no reference was made to the child's ethnicity and attention paid to how this would be respected.
A parenting capacity assessment should have been undertaken in respect of each parent. Where this had not been done, an explanation was needed as to why. As far as the father is concerned, it was not for him to show that he possessed the necessary parenting skills. The onus lay on the local authority to demonstrate that he did not, and that any resulting risk to the welfare of the child could not be addressed by the provision of support. The local authority was not in a position to adduce evidence on the point, having failed to carry out a parenting assessment. There was no finding as to the level of assistance which each parent might require and the reason why provision of support would not bridge this gap. The court had not investigated why this had not happened, again, instead, accepting that the local authority had acted reasonably.
An explanation was needed as to why the Grounds for Referral to the Children's Hearings were founded to support the application for the PO when the facts therein were inconclusive.
IV The minimum intervention principle
This had not been demonstrably applied as to why adoption was the only option open to the court.
It is one of the fundamental principles of the law relating to children that there needs to be an evidenced explanation why nothing other or less than adoption will suffice.
This is stated in the Adoption and Children (Scotland) Act 2007 section 14(6) as a consideration applying to the exercise of powers by the local authority as an adoption agency: an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child. may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made. 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?
Impact on practice
The clarification of the legal points is welcome and underlines the express responsibility on courts and local authorities in making decisions involving the permanent separation of parents and their children.
Given the criticism of previous courts' interpretation of adoption legislation, solicitors before relying on such case law must reassess its relevance in light of the Supreme Court judgment.
It is important that this judgment does not result in local authorities delaying or avoiding the appropriate pursuit of adoption or permanence proceedings.
It underlines the need for good, informed and up to date knowledge of best practice and the evidencing of its application by practitioners in their plans for children.