Abstract
These cases are available on the Scottish Courts website: www.scotcourts.gov.uk.
Adoption granted despite curator ad litem’s recommendation that a Permanence Order was more appropriate
Petition for adoption by CDF and DCF of the child MRFW under the Adoption and Children (Scotland) Act 2007 [2019] CSOH 37
23 April 2019
The child, MFRW, was born on 26 February 2014. She had lived with the current carers who were the prospective adopters since December 2016. She had never lived with the birth parents due to the probable impact on her of domestic abuse, the mother’s challenging mental health, chaotic lifestyle, poor home conditions and lack of budgeting, effects on father’s parenting ability due to a head injury and the father’s involvement in animal cruelty.
A parenting capacity assessment was completed by an independent agency which concluded that the parents lacked the skills necessary to care for the child. The agency offered guidance in parenting but the parents were not able to properly engage with instruction. Since then, efforts by the local authority to support the parents had been rejected.
The parents accepted the deficiencies in parenting skills identified in the parenting capacity assessment but blamed the local authority for not having provided sufficient and appropriate instruction in parenting. At the time of proof, the parents accepted that they were not in a position to fulfil the parenting role and could not say when they might be able to do so.
A curator ad litem was appointed by the court and stated that she had no hesitation in recommending that MFRW remain with the prospective adopters; however, she believed that ‘something less than adoption would work for this family’ and recommended that a Permanence Order would be more appropriate. The curator had spoken to the birth parents by telephone but had not met them.
A consultant clinical psychologist stated that the child’s possible removal from the prospective adopters would be ‘catastrophic to her development’. The court commented that this was extremely strong and emphatic language for a skilled witness giving evidence in court. The psychologist further stated that MFRW had no attachment to her birth parents, but did have a secure attachment to the prospective adopters. Direct contact with the birth parents would be disruptive and threaten the attachments developed between her and the prospective adopters. The child had had a disrupted infancy which made the forming and maintain of attachments more difficult than for other children.
The parents believed that their blood ties and love for their daughter would adequately overcome any such damage. The court referred to English authority where it was found that there is no right arising simply from a blood link ‒ Re W (A Child) Adoption: Grandparents competing claim [2017]1 WLR 889.
The court was satisfied that parental consent to the adoption could be dispensed with under section 31 of the Adoption and Children (Scotland) Act 2007 in that the parents were unable satisfactorily to discharge their parental responsibilities, or exercise those rights, and were likely to continue to be unable to do so. The adoption was granted and indirect contact between the child and birth parents set at twice a year, a frequency with which the prospective adopters were content.
Brother fails in attempt to be considered by the Children’s Hearing as a Relevant Person to his three sisters
XY v Sheriff’s decision dated 22 June 2018 [2019] CSIH 19
27 March 2019
This case raises the same issues as the recently reported ABC v Principal Reporter [2018] CSIH 72. A brother sought to have conferred upon him Relevant Person status under the Children’s Hearing system in respect of his three sisters. This would extend wide-ranging rights including receiving all Hearing reports and papers, being entitled to attend every Hearing along with a representative, and the right to appeal the Hearing’s decision and to ask for reviews of the decisions. The court rejected the appeal quoting from the previous case of ABC which was successfully appealed to the Inner House: ‘Where decisions are taken which affect the Article 8 rights of a relative other than a parent, generally, this will not require the same level of involvement in the whole process as that of the parent.’
The court noted that the brother’s views had been communicated to the Children’s Hearings and so taken into account when they were reaching their decisions.
As a postscript, the court commented on the grave concerns expressed by the safeguarder in the case. They also stated that they shared these concerns, namely:
The girls’ privacy rights would be breached if their brother as a Relevant Person had access to their personal and confidential information. There was no need for multiple Relevant Persons, all of whom were pursuing the same objectives. The troubling number of people, including lawyers, who were attending the Children’s Hearings. The frequency of the Hearings ‒ 18 in the past 18 months ‒ and the fact that they were often lengthy and disputatious. The children finding the Hearings to be stressful and intimidating, which meant that they sometimes left before the end of the Hearings or didn’t attend at all. The children’s best interests, while held to be paramount, were being lost in the very system designed to protect them.
Sheriff Appeal Court upholds decision to grant an adoption order as opposed to a kinship care order in favour of grandparents
BH&EH v CH&SM [2019] SAC (civ) 7
27 February 2019
The child was three years old and had resided with maternal grandparents since April 2016. The birth parents appealed the sheriff’s decision to grant the grandparents’ adoption petition. They averred that a residence order (now referred to as a kinship care order) under section 11 of the Children ( Scotland) Act 1995 represented the minimum intervention in the child’s life; that the sheriff had failed to present detailed analysis as to why nothing else would do and had focused on the parents’ past failures instead of considering the future likelihood of their discharging parental responsibilities.
The sheriff had dispensed with the parents’ consent to the adoption on the basis that they were unable satisfactorily to discharge their parental responsibilities, or exercise those rights, and were likely to continue to be unable to do so. The sheriff also stated that had those criteria not been satisfied, he would, in any event have dispensed with parental consent on the basis that the child’s welfare required it.
The Appeal Court held that it is ‘entirely appropriate for the court to consider past history to inform the likelihood of future behaviour as required by section 31(4) (c)’.
The court is obliged to identify the available options for the care of a child and to carefully assess the proportionality of each of these options ‒ North Lanarkshire Council v KR [2018] CSIH 59.
Only if there is ‘no realistic, reasonable alternative can the adoption order be granted…This analysis looks to the future but is informed by what has occurred in the past.’
The curator ad litem had specifically looked at the possible advantages to granting a kinship care order. The difficulties would be the possible continued involvement of the Children’s Hearings and the potential for applications to the court for variations of the order. This would ‘potentially undermine the stability of the child’s placement’. On the evidence, the sheriff had heard of the considerable risks of disruption in granting such an order as opposed to the adoption petition.
‘Adoption would give the family and in particular the child, a clear way forward… it would provide a valuable and stable family unit for the child now and in the future.’ It also took account of the child’s welfare throughout her life and not just for the duration of her childhood, the latter referring to the kinship care order.
The appeal was rejected.
Previous cases have considered the merits and demerits of adoption and kinship care orders ‒ see LO in petition against adoption [2017] CSIH 14 and AV&SV against adoption [2017]CSOH 103. Each turns on the individual circumstances of the case in deciding which option is proportionate and necessary.
Legislation
In May 2019 Members of the Scottish Parliament (MSPs) unanimously passed a Bill raising the age of criminal responsibility to 12 meaning that children under this age cannot be charged with a crime. It is expected that the Bill will come into force by the Autumn. A new advisory group will look at whether the age should be raised further.