Scotland

Circumstances of the case

The petitioners were the prospective adopters of a five-year-old child. The respondents were the Principal Reporter of Scottish Children’s Reporter’s Administration (SCRA) and the birth mother of the child. The child had been subject to Compulsory Supervision Orders (CSOs) for a number of consecutive years containing measures that she must reside with named foster carers. She could not reside with her birth mother due to the serious and established grounds of parental neglect that had led to the decision by the local authority that the child should be adopted. A Children’s Hearing had been arranged at the request of the local authority for the purposes of varying the measure of residence to authorise the child’s move to live with the adopters who were approved as foster carers. The local authority sought a further variation of the CSO for the withholding of the names and address of the adopters from the birth mother who would otherwise have had the right to know where her child was living. There had been no previous non-disclosure measures.

The adopters had no right to attend the hearing as they did not satisfy the legal criteria necessary to be deemed Relevant Persons nor had they been invited to attend the hearing, nor had they requested that they could attend.

There had been a full discussion at the hearing around the question of non-disclosure and no measure requiring this had been included in the CSO.

The adopters had no statutory right to appeal the decision of the hearing and could seek to challenge the hearing’s decision only by way of a judicial review which they did for the following reasons:

Their rights under Article 8 of the European Convention on Human Rights had been contravened by the failure of the chair of the Children’s Hearing to defer the decision of the hearing to enable them to attend the hearing for the purposes of the consideration of the non-disclosure of their names and address to the birth mother.

Declarator was sought that the decision was unlawful in respect of the inclusion of the adopters’ names and address in the CSO. Interdict was also sought to restrain the mother from divulging to anyone the name and address of the adopters pending the outcome of the adoption proceedings.

Decision

The principal legislation is the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’).

The default position is that a parent will know the address where their child is placed under a CSO. The mother’s Parental Rights and Responsibilities (PRRs) remain in place, although restricted by any decision of the Children’s Hearing.

Numbers at a Children’s Hearing are to be kept to a minimum, but a person may be invited to attend for reasons including where the chairing member of the hearing decides that their attendance is necessary for the ‘proper consideration of the matter before the hearing’.

Article 8 rights are not absolute and must be balanced against competing interests of others with an involvement in the case. The adopters’ Article 8 rights to a private life were recognised due to their desire to adopt the child.ⁱ This does not afford an automatic right to attend the hearing nor full rights of participation in the Children’s Hearing system.ⁱⁱ The individual circumstances of each case will determine the extent to which Article 8 rights are engaged. A distinction was drawn between Lazarovia v Ukraine (6878/14) [2018] ECHR 328 and the current case. In the latter, the adopters’ role in the child’s life was a prospective one and not one that existed at the time decisions were being made about who should attend the hearing.

The local authority was seeking the measure to place the child with the adopters and, as such, one of their responsibilities was to convey the views of the adopters regarding non-disclosure to the hearing, which they did. The social worker correctly focused the non-disclosure request as a child-centred issue. Had the adopters wanted to make the hearing aware of the issue from their perspective, they could have requested to attend the hearing, but had not done so.

The court did not express a view regarding which legal test should have been applied by the hearing in determining the need for non-disclosure of information to the mother. In CA v Children’s Reporter [2020] Fam LR 50, the Sheriff Court had decided that when a hearing was considering the issue of non-disclosure of the child’s address, the overarching principle in terms of the child’s welfare under s25 of the 2011 Act should be the determining factor and not the likelihood of significant harm to the child if the information were disclosed.ⁱⁱⁱ

The court in the current case held that, where the Children’s Hearing was considering varying the measures of a CSO to include a non-disclosure order, it should be done in the context of the overarching consideration of the child’s welfare. It will require to have several statutory provisions in mind. These include whether:

the proposed variation is necessary for the protection or guidance of the child;^iv

The decision not to make a measure of non-disclosure of the adopters’ names and address had been made and reasons given orally by the panel chair; however, the failure to record the decision and reasons for that measure was a procedural irregularity. In the absence of written reasons, the petitioners had been left in the same situation as they would have been had written reasons been given. Therefore, this irregularity had not been ‘damaging to the justice of the proceedings’.^vii

The court noted that, critically, the adopters’ intention to care for the child had not been conditional upon the making of a non-disclosure measure to guarantee their anonymity.

The court found no conflict between the 2011 Act and Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009. Under Rule 10 of the Act of Sederunt, subsequent to the Children’s Hearing the adopters had lodged an application in court to adopt the child and had applied for a serial number to be granted to that application which would afford anonymity in the adoption proceedings. The court noted that it is of significance that parents retain their PRRs under the Children’s Hearings system, albeit suspended, whereas the adoption process seeks to deprive the parent of these and is charged with making long-term decisions affecting the child and the parents. The court further stated that:

There is simply no basis for an assertion that the rules applicable to one tribunal ought to be the same as those applicable in separate court proceedings. The presumption will always be in favour of open justice unless the particular rules or circumstances necessitate anonymity.^viii