Abstract
Cases
These are available on the Scottish Courts website: www.scotcourts.gov.uk.
Application by parents against granting of permanence order refused by Sheriff Appeal Court
CE & EE v Glasgow City Council [2018] SAC (Civ) 3 GLW-AD39-17
Edinburgh, 9 February 2018
Circumstances of the case
A permanence order (PO) had been granted by a sheriff in respect of an 11-year-old girl who had been in care since she was two years old. Her parents had been convicted of assaulting her elder siblings and the sheriff was unconvinced that there had been a change in parental attitude to disciplining their children in an appropriate way. He held that the threshold test had been met, namely, that the child’s residence with either parent was likely to be seriously detrimental to her welfare.
The parents appealed the decision on the basis that the sheriff had erred on a number of grounds:
approach to the evidence; application of the law to facts; refusal to make provision for contact; failure to provide any reason for the imposition of the ancillary provisions; determining that the threshold test had been met where an assessment of future likelihood of harm was based on untested allegations and suspicions.
More general grounds for appeal were in relation to:
the impact of delay; the failure to obtain a parenting assessment; the weight attached to the views of the child.
Decision
The Appeal Court acknowledged their restricted role in interfering with the sheriff’s findings. There would need to be a material error in law, the making of a critical finding in fact which had no basis on the evidence, or, a demonstrable failure to consider relevant evidence. Only if satisfied that the sheriff’s decision could not be reasonably explained or justified, or where the sheriff’s consideration of the threshold test had gone plainly wrong, would the Court of Appeal intervene.
The sheriff was the fact-finder and as such entitled to form a view in relation to the credibility and reliability of witnesses and in reaching conclusions based on his assessment of the evidence on which to form his findings.
Many of the sheriff’s findings in fact referred to the pattern of ‘appalling sustained physical abuse’ of the child’s siblings. These had been admitted by the parents at two Children’s Hearings and in another court under indictment. It distinguished this case from that of West Lothian v B 2017 UKSC 15 where there was ‘fleeting references to evidence’. The sheriff in the current case had based his assessment of the future on proven allegations, not unsubstantiated suspicions. Furthermore, because the sheriff did not believe that there had been a demonstrable change in the parents’ behaviour he was entitled to ‘base his or her assessment of the future on the evidence relating to the past and present’ (City of Edinburgh Council v RO & RD [2016] SAC (Civ) 15).
In reference to delay, the court dismissed the parents’ contention that the council operated a policy of deliberately engineering delays in the permanence process to defeat their rights. There had been no prejudice to the child as a result of the delay in the proceedings and no evidence to support the parents’ argument.
The apparent absence of a ‘parenting assessment’ was irrelevant. The parents had been continuously assessed by social workers and two consultant clinical psychologists had been instructed, one by the mother. They agreed that none of the children should be returned to the care of their parents and there was no evidence presented that might lead the sheriff to arrive at a different conclusion.
The child’s views were based on a wide range of factors and there was no evidence that these had been subject to corruption or inappropriate influence. She wished for the PO to be made for her life to be happier, easier and more normal and did not wish to see her parents. The sheriff considered a series of alternatives to the making of the PO and in what was necessary and proportionate. He concluded that the certainty, stability and security that the child needed for the rest of her life could best be provided by her current foster carers under a PO.
Post-order contact is considered in the context of the child’s welfare (R v Stirling Council 2016 SLT 689). The sheriff in the current case extinguished the rights of the parents to contact and set out at considerable length his reasons for doing so, with which the Appeal Court could not disagree.
The appeal was therefore dismissed.
Appeal by parents against the making of adoption orders dismissed by the Sheriff Appeal Court
JA & TA and JC v Mr and Mrs AC25/15 and AC26/15 [2018] SAC (Civ) 6
Edinburgh
9 March 2018
Circumstances of the case
Adoption orders were granted in relation to two full siblings aged two and five years. The father was not named on the younger child’s birth certificate and therefore had no Parental Responsibilities and Rights (PRRs) in respect of her. The parents’ consent to the adoption had been dispensed with under the Adoption and Children (Scotland) Act 2007, section 31(3) (c), namely that they were unable satisfactorily to discharge their parental responsibilities or exercise their parental rights, and it was likely that they would continue to be unable to do so. Both parents were chronic drug abusers and the father had been incarcerated regularly due to his criminal lifestyle.
The father appealed the sheriff’s decision, as did the paternal grandparents who had sought to care for the children as kinship carers under section 11 of the Children (Scotland) Act 1995.
The grandparents were the carers of the children’s three elder half-siblings.
The reasons for appeal were in relation to how the sheriff dealt with:
the grounds for dispensing with the father’s consent to the adoption; considerations under sections 14 and 28 of the Adoption and Children (Scotland) Act 2007, principally what the court must take into account before granting the adoption, e.g. the welfare of the child being paramount, the child’s need for a stable family home – considerations of necessity and proportionality; the findings in fact; limiting post-order contact to indirect contact.
Decision
Consent of the father
The father’s ongoing criminal conduct and misuse of drugs provided the basis for the sheriff justifiably finding that he was unable to exercise and discharge his PRRs. There was no evidence to suggest any significant change in his behaviour and the court found that if he was unable to satisfactorily fulfil the role of a parent and was likely to be unable to do so, then he was not discharging his parental function. They noted that ‘rights are conferred in order to enable a parent to exercise the responsibilities imposed’.
The fact that the father might be able to fulfil some PRRs was not the point. Lord Glennie in M v R 2013 SCLR 393 referred to ‘in the round’, reflecting in the current case ‘a need to look at the various rights and responsibilities and weight them all [our emphasis] up and reach a view’.
Necessity and proportionality
In applying these Article 8 principles, case law stresses that the essential consideration is the welfare of the child, which includes the child’s right to a safe and secure environment. This is a matter of judgment for the court based on the individual circumstances of each case. The sheriff had been entitled to conclude that separating the children from their adoptive parents would be ‘emotionally devastating’. The Court rejected the grandparents’ proposition that psychological evidence was required before the sheriff could make such a decision. In YC v UK (2012) 55 EHRR 33, the court considered moving a child from their placement stating: Once K was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighted in the balance against his return to the applicant’s care.
The sheriff considered other possible alternatives to adoption and the proposition by the grandparents that they would provide a good enough parenting option for the children. Kinship care arrangements had been explored and rejected by the local authority; the sheriff correctly focused on the children’s welfare and was satisfied that on the evidence, this would not be in their best interests.
Findings in fact
Henderson v Foxworth Investments 2014 SC (UKSC) 203 and McGraddie v McGraddie 2014 SC (UKSC) 12 reinforced the long-established principles that the appellate court will ‘only interfere with the findings in fact made by a trial judge on the basis that he has gone plainly wrong and is satisfied that his decision cannot be reasonably explained or justified’. In this instance the court was satisfied that the sheriff had substantial evidence that entitled him to reach the findings in fact that he made.
The sheriff gave ‘cogent reasons’ why he was unconvinced by the grandmother’s evidence and formed the view that attempts to assume kinship care of the children were made solely to prevent adoption orders being made.
Post-adoption contact
The court saw this as ‘a balancing exercise between securing finality and security for the children on one hand, and maintaining some link with their birth family’. They referred to the evidence presented to the sheriff by a social worker with ‘considerable’ experience and found that he was entitled to accept this evidence.
There was some clarification needed in relation to the terms of the sheriff’s interlocutor. Notwithstanding this, the appeal was dismissed and the adoption orders remained in place.
Permission to appeal the decision of the Sheriff Appeal Court by birth parent refused
AW v Decision of the Sheriff Appeal Court on 30 October 2017
Court of Session, Edinburgh
Extra Division of the Inner House, Lady Paton
7 March 2018 [2018] CSIH 25 XA103/17
Circumstances of the case
The child was born on 29 June 2014 and placed with foster carers at birth and had no contact with the father since 2016. The main basis of his appeals was in relation to the decision for there to be no post-adoption order contact. Section 113(2) of the Courts Reform (Scotland) Act 2014 provides that the Court of Session may grant permission to appeal against a final judgment of the Sheriff Appeal Court only if the court considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Session to hear the appeal.
Decision
The father represented himself in the proceedings and although the courts had made allowances for the challenges this presented, decided that for the sake of fairness to all parties, certain rules and time limits had to be observed. Therefore, the permission was not granted.