Abstract
These cases are available on the Scottish Courts website: www.scotcourts.gov.uk
Children’s Hearings should apply welfare test when deciding on non-disclosure of the child’s address to birth parents
Note of Sheriff Hodge’s decision in CA & CM v Decision of the Children’s Reporter [2019] SCABE95
Circumstances of the case
This two-year-old child had been in care since birth due to parental substance abuse and criminal activity. Consequently, permanence planning was underway and he had lived for a year with prospective adopters under a compulsory supervision order (CSO) issued by a Children’s Hearing. There had been a measure of non-disclosure to the birth parents of the child’s address but the CSO was reviewed and amended at a later date when this measure was removed, resulting in the birth parents having the right to know the prospective adopters’ address. The prospective adopters, as relevant persons through the Children’s Hearing, appealed this decision to the Sheriff Court under section 154, Children’s Hearings (Scotland) Act 2011. In the meantime, the Hearing’s decision was suspended pending the outcome of the appeal. The appeal was opposed by the birth parents and by the Children’s Reporter.
The basis of the appeal was in terms of the arrangement of the 2011 Act. A CSO naming a child’s place of residence is issued under section 83(2)(c) and is central to the Hearing’s purpose, whereas, section 178, which deals with decisions concerning non-disclosure is contained in the part of the Act headed ‘Miscellaneous’. In making any decision about a child, the Hearing must apply the ‘welfare’ test set out in section 25(2) of the Act, namely ‘to regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the paramount consideration’.
Only where there is explicit authority within the Act to apply a test other than the welfare test can the Hearing do so. It was submitted that while such instances are described under section 83, the non-disclosure of the child’s address to the birth parents is not one of these. Therefore, the more exacting test contained in section 178 is superseded by the general test in section 25. This would mean that the Hearing, when deciding whether to withhold the child’s address from the birth parents, should have regard to safeguarding and promoting the child’s welfare throughout childhood and not whether the disclosure of the information to the parents ‘would be likely to cause significant harm to the child’.
The Reporter referred to the Scottish Children’s Reporter Administration’s (SCRA) The Children’s Hearings Scotland Practice and Procedure Manual (third edition, version 2, 2019, para 3.43) which states how decisions should be taken in relation to the non-disclosure of the child’s address to the birth parents: The ethos of a Children’s Hearing is openness. Withholding information from a party otherwise entitled to that information should be exceptional. The test which should be applied is whether disclosing the place of residence would be likely to cause the child significant harm.
Decision
The court decided that the Children’s Hearing applied the wrong test in law, the decision was therefore unjustified, and the appeal was upheld.
The court held that the terms of section 25 prevailed throughout the Act unless specifically excluded, which was not the case in relation to the non-disclosure of the child’s address. In reaching any decision about a child, the Hearing is to regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the paramount consideration. It is this test and not the one of ‘significant harm’ which should be applied in such decision-making. The court further noted that its interpretation that no test additional to section 25 applied to section 83(2)(c) is consistent with the commentaries of Professor Norrie in Children’s Hearings in Scotland (third edition, at para 11.05) and Professor Sutherland in Child and Family Law (second edition, at para 10.109) (the latter in respect of the identically worded predecessor provision).
Comment
The decision does not remove the right of the birth parents to know where their child is residing; however, this information can be withheld if it is in the child's best interests to do so. This decision has important implications for prospective adopters. Prospective adopters are approved as foster carers to comply with the Looked After Children (Scotland) Regulations 2009. A child can then be placed with them under a CSO. The disclosure of their address by the Children’s Hearing means that birth parents will know where the child is staying, possibly for the rest of their childhood.
It has been argued that the decision should be made by the Sheriff when the adoption order is granted because, at that stage, she or he will be in full possession of the facts in the context of the likely enduring impact on the child throughout her or his lifetime; to do so earlier is pre-empting the Sheriff’s decision.
The conclusion highlights the difficulty in decision-making of Children’s Hearings when permanence planning is underway. The Hearing makes decisions which can last no longer than a year until they must be reviewed; often they are reviewed more frequently at the request of the family or the local authority.
Decisions are based on whether the child on the day of the Hearing requires guidance, treatment, care or control under compulsory measures of care. The Hearing requires a course of minimum intervention to be followed, exploring options other than compulsion, and revisiting and justifying any decision which interferes with the parental right to have their child living with them. The Children’s Hearings are making decisions about the child’s residence and contact in terms of what is in her or his short-term interest rather than the lifelong implications these may have.
The Hearing does not and cannot make decisions in terms of permanence planning, except in offering advice to the court at the outset of permanence proceedings. Permanence decisions are taken by the court and it is only at the conclusion of those proceedings that Parental Rights and Responsibilities are removed from the birth parents. Up until then, these rights may only be suspended by the Children’s Hearing on cause shown.
The local authority has a statutory duty to have as their paramount concern the safeguarding and promotion of the child’s welfare, so cannot suspend indefinitely plans for securing safety, stability and certainty for the child. They are compelled to discharge their legal duty and pursue permanence without drift or delay if this is assessed to be in the child's best interests.
This means that the local authority’s decision to pursue permanence reaches court months, often years, after that plan has been acted upon. In the meantime, recommendations supporting their permanence plan are presented at Children’s Hearings, a forum that starts from the premise of minimum intervention.
Parents are understandably hostile to any decision which could be perceived as facilitating the permanent removal of their children from their care before the court has heard evidence and applied the appropriate legal tests to arrive at that conclusion. In these circumstances, the Children’s Hearings can become the de facto arena for parents to oppose the local authority’s permanence plans because those plans have not been sanctioned by a court or other legal hearing.
The local authority undertakes a parenting capacity assessment and considers the likely success of reunification and the impact on the child. The recommendation to the Adoption Panel that permanence should be pursued needs to be sanctioned by the agency decision-maker. Once that has occurred, the local authority will be committed to achieving permanence for the child but will reassess the parental capacity to care for the child where there is a change in circumstance. The current legal mechanism places the social worker in a very challenging position; she or he must plan for the child's future and well-being without delay, but cannot be seen to presume that an adoption order will be granted. The social worker must convince the Hearing that the long-term plans represent what is best for the child for a maximum of a year without giving the impression that their recommendation is being used to facilitate permanence through the back door.
This case highlights the dilemma for those involved in adoption planning and for the decision-makers. There will be circumstances where the disclosure of the identity and address of the prospective adopters may very well represent a risk to the child’s well-being moving towards adoption; however, because no decision has been made about permanence, the Hearing cannot make a decision that either presumes, supports or rejects plans for permanence.
In among all the adult duties, rights and responsibilities is a child whose right and need to the childhood she or he deserves demands a legal process that enables them to grasp this as quickly and painlessly as possible.