Scotland

Circumstances of the case

The circumstances of the case were reported previously in Adoption & Fostering (42(1): 82‒83, March 2018) when the Sheriff Appeal Court refused the Council’s appeal against the sheriff’s decision not to grant a Permanence Order with Authority to Adopt (POA).

To recap, the mother of the four-year-old child was a vulnerable adult, on the autistic spectrum and open to exploitation. She led a chaotic life and struggled to cope with the child’s physical and emotional needs. The child had had periods of being looked after from birth and had lived with prospective adoptive parents since March 2016. Following evidence at proof, the sheriff found that notwithstanding her difficulties, the mother was capable of change, and had demonstrated improvements in her personal administration.

It was accepted by all parties that the child could not presently live with her mother and the sheriff found that the threshold test in section 84 of the Adoption and Children (Scotland) Act 2007 had been met. The sheriff recognised that, once the threshold test was satisfied, he should only proceed to make an order if it was necessary to do so in order to protect the interests of the child, namely that ‘nothing else will do’. The second test was not satisfied and the Order, not granted.

The Inner House granted leave to appeal that decision.

Legal argument

The basis of the appeal was that the sheriff whose decision was endorsed by the appeal court had applied the incorrect legal test in deciding whether to grant the POA. The court should have conducted a comprehensive or global evaluation of the child’s welfare and weighed up the available practical options for the care of the child. When properly applied, this would have led to the inevitable conclusion that the requirement under Article 8 of the ECHR was met. The threshold test had been met and so the court required to be satisfied that a POA should be granted only if it was the best option having regard to the whole of the child’s welfare.

A decision which avoids unnecessary delay is required for the sake of the child’s welfare and reflects a consistency with the Scottish Government’s commitment and the responsibility of corporate parents to reach that decision as quickly as is practicable.

Senior Counsel relied on the following authorities: TW v Aberdeenshire Council 2013 SC 108 (particularly at paras [16], [18] and [26]); Fife Council v M 2016 SC 169 (particularly at paras [63] to [65] and [68]/[69]); S v L 2013 SC (UKSC) 20 (particularly per Lord Reed at paras [39]‒[41] and [51]/[52], and Lord Carnwath at paras [74]/[75]). She also referred to three decisions of the Court of Appeal in England, namely in re B-S (Children) (Adoption Order: Leave to oppose) [2014] 1 WLR 563 (particularly at paras [41], [44]/[45] and [63]), in re W (A Child) (Adoption: Grandparents’ competing claim) [2017] 1 WLR 889 (particularly at paras [68]‒[75] and in re R (A Child) (Adoption: Judicial approach) [2015] 1 WLR 3273 (particularly at paras [41], [44], and [52]‒[54]).

Decision

In granting the appeal, the court drew a distinction between the current case and that of City of Edinburgh Council v GD [2018] CSIH 52. The threshold test under the Adoption and Children (Scotland) Act 2007 Sections 84(5) and 83(2) had not been met in that case, whereas in this case it had been met.

The court was critical of the misapplication of the concept of ‘nothing else will do’ which cannot remove the obligation of the court to carry out an overall evaluation of the child’s welfare: where a court has identified all the available options for the care of a child, and carefully assessed the merits and demerits of all of these, and concluded that a POA is the option which best safeguards and promotes the welfare of the child throughout the child’s life, then that is the order which the court must make; that will meet the requirement of proportionality, and will be compatible with the Convention rights (para 69).

The sheriff needed to identify the various options available for the child’s future care and explicitly lay out the advantages and disadvantages of each option before deciding on the one which represented the best outcome in terms of the child’s welfare.

The court was also critical of any decision which would result in further protracted procedure, stating that this ‘will seldom promote the welfare of the child throughout the child’s life’ (para 70).

The Appeal Court was criticised for not recognising that the six questions asked of them by senior counsel required to be addressed. There was also no evidence that the Mellow Parenting course or a similar resource would be available to the child and mother and so the decision of the court could have been impracticable.

The court had sufficient up-to-date information before it to make a decision and did so, granting the POA.

Circumstances of the case

The local authority had been involved with the parents prior to the birth of the children due to their half-siblings being unkempt and dirty, having developmental delay, the dirty state of the family home and domestic violence in the home. The father was aggressive and threatening towards social workers and any improvement made to the living conditions was not sustained. In 2015, Child Protection Orders were granted in respect of both children after the father breached an undertaking not to allow them unsupervised contact with a person thought to have a history of sexual offending. Thereafter, compulsory supervision orders were made requiring the children to live with foster carers and to have no contact with the father. The father has not seen either child since January 2015.

The father moved to England and refused to tell the local authority his whereabouts. He has displayed no interest or concern in either child and the sheriff concluded that there was no prospect of any of his offspring returning to live with him.

Notwithstanding that, the sheriff was not satisfied that the threshold test had been met. The local authority had closed the case in November 2014 and there was no expert evidence to comment on the likely impact on the children were they returned to the care of either parent. The sheriff believed that it could not be proved that living with the father was or was likely to be seriously detrimental to the welfare of the children.

Legal argument

The court was referred to the following authorities: re B (A Child) (Care Proceedings: Threshold criteria) [2013] 1WLR 1911; in re S-B (Children) [2010] 1 AC 678; R v Stirling Council 2016 SLT 689; West Lothian Council v B 2017 SC (UKSC) 67; CE & EE v Glasgow City Council [2018] SAC (Civ) 3; Walker & Walker, Law of Evidence in Scotland (4th edn.); Davie v Edinburgh Corporation 1953 SC 34; Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59; West Lothian Council v McG 2002 SC 411.

The basis of the appeal was that the sheriff had erred in ignoring the clear possibility based on facts that returning to live with the parent would be seriously detrimental to the welfare of the children. The onus was on the father to demonstrate his change in capacity to adequately parent the children. The sheriff erred in law because he failed to carry out the necessary evaluation required by section 84(5) (c) (ii) of the 2007 Act, which would have established the likelihood of serious detriment and the father’s failure to demonstrate a change in parenting capacity.

The facts were not disputed but what was called into question was whether the conclusion drawn by the sheriff was the correct one.

Decision

The Appeal Court concluded that the sheriff was wrong in not finding that the threshold test had been met. The father’s care of other children was a very relevant factor; the closing of the case in 2014 did not present an evidential barrier and there was ample material prior to January 2015 to support the contention that a return to the care of their father would present a serious detriment to the welfare of the children. If the father wanted to establish that he had changed in his behaviour and capacity, it had been incumbent upon him to present this evidence to the court. There was no requirement for the Council to lead expert evidence in terms of the likely impact on the children were they returned to their father’s care and the removal from the children’s current positive environment could be taken into account when the sheriff had been assessing the likelihood of serious detriment.

The sheriff should have looked at all the options in respect of the care of the children and evaluated the merits and demerits of each.

The court had sufficient recent information on which to base their decision. They concluded that the threshold test had been met; that the granting of POAs would safeguard and promote the welfare of the children throughout their childhoods; that it was better for the children that POAs should be made than that they should not be made; that the father was unable to satisfactorily discharge his parental responsibilities and exercise his parental rights and was likely to continue to be unable to do so, and therefore his consent to the granting of the order was dispensed with and there was no practical alternative to the granting of the POAs. Therefore the court allowed the appeal and granted these.

The Special Restrictions on Adoptions from Ethiopia (Scotland) Order 2018

This order came into effect on 8 November 2018 It applies the special restrictions which are set out in the Adoption and Children (Scotland) Act 2007, section 64(1) in relation to the adoption of children from Ethiopia. As a result, the Scottish Ministers will not be permitted to take any steps to further the bringing of children into the UK from Ethiopia for the purposes of adoption, unless they are satisfied that they should do so under section 64(20) of the Act. This would be in any particular case where the Scottish Ministers were satisfied that those steps should be taken despite the existence of special restrictions.

The Continuing Care (Scotland) Amendment Order 2018

From 1 April 2018, the age at which a young person continues to be eligible for supports under the Children (Scotland) Act 1995 was raised from 19 to 20 years of age. It ensures that the cohort of looked after young people can remain within their continuing care setting and reflects the Scottish Government’s commitment to the ‘Staying Put’ agenda within Part 11 of the Children and Young People (Scotland) Act 2014.

Rhona Pollock, Legal Consultant, Adoption & Fostering Alliance Scotland, prepared these notes.