Scotland

Circumstances of the case

ZL is the 12-year-old child of YL and WBL and the sibling of ML and RL. ZL was made subject to a compulsory supervision order by a Children’s Hearing after having been referred as a result of having a close connection with his father who was a ‘Schedule 1 Offender’ under the Criminal Procedure (Scotland) Act 1995. The father had been convicted and imprisoned under the Civic Government (Scotland) Act 1982, section 52, relating to the possession, taking or distributing of indecent photographs involving children. ZL has complex social and learning needs, and these could not be met by his parents. Consequently, ZL has resided with foster carers since 2016 and has exercised contact with his parents supervised by the social work department once a fortnight and with his siblings on an unsupervised basis once a fortnight. Compulsory supervision orders can last for a maximum of a year before requiring review and are not considered appropriate for securing a child’s felt and legal permanence throughout childhood. Consequently, the local authority applied to the court for a permanence order (PO) to be made, under the Adoption and Children (Scotland) Act 2007, section 80, vesting in them certain Parental Rights and Responsibilities (PRRs) and removing some PRRs from the birth parents.

On 28 March 2022, a PO was granted by the sheriff, with mandatory provisions that the local authority has throughout the child’s childhood the right to regulate the child’s place of residence and also has responsibility in terms of the provision of guidance appropriate to the child’s stage of development.

Ancillary provisions were granted in terms of ongoing contact between the child and their family as follows:

The child would have bi-annual contact with the parents which would be supervised by the social work department.

An appeal was lodged to the Sheriff Appeal Court in respect of the Ancillary Provisions alone. The reasons for appeal were:

The sheriff had erred in law by applying the criteria for post-adoption contact to that in consideration of contact post-PO, as though they were equally apposite.

Decision

The Appeal Court acknowledged the distinction between birth parents’ PRRs in consideration of an adoption order as opposed to a PO. However, the sheriff did not err in law by referring to decisions made by courts in respect of consideration of adoption applications. Because of the dearth of authority dealing specifically with POs, the sheriff reasonably referred to authority dealing with adoption.

The sheriff was very clear that the starting point which each has in common is that the welfare of the child is paramount. In East Lothian Council, Petitioners,ⁱ in granting a PO with authority to adopt, the court stated:

Regarding the matter of contact, first, we note that at its highest, the submission for the appellants was that there was no evidence of [the child] having come to harm from there being ongoing contact. That, however, is not the test. The issue was whether or not ongoing contact would safeguard and promote [the child]’s welfare.

The sheriff was clear that his decision to reduce the level of contact between ZL and his birth family was based on the consideration of this in case law and, therefore, that the decision was based upon this welfare principle. Accordingly he correctly applied the terms of section 84(4) of the 2007 Act.

While in quoting from AB and CD v LM,ⁱⁱ the sheriff began with the sentence, ‘In the normal course there will be no such contact’, the remainder of the paragraph relates to the application of the welfare principle to the consideration of the question of contact in an adoption situation, indicating that even if there was a presumption against contact it may still be considered by reference to the welfare principle. Reference was made to the judgement of Sheriff Anwar in Mr and Mrs P v LD,ⁱⁱⁱ in which the sheriff, having reviewed a number of authorities, set out eight considerations to be taken into account by a court when considering the question of post-adoption order contact. Importantly, although this is in relation to post-adoption order contact, each of these elements is relevant to proper consideration of the welfare principle in relation to the best interests of the child. These are:

The nature of the child’s bond with, and attachment to, the members of the birth family seeking contact.

Article 8

Article 8 of ECHR as incorporated into UK law by the Human Rights Act 1998 (the ‘1998 Act’) states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

In Strand Lobben and Others v Norway (European Court of Human Rights), the court considered the position where, as in the current case, the interests of a child came into conflict with those of the parents at paragraph 206:

In instances where the respective interests of a child and those of the parents come into conflict, art.8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents.

The application of the welfare principle within the 2007 Act clearly reflects this approach. In Strand Lobben and Others v Norway, the court specified that in all decisions concerning children, the child’s best interests ‘are of paramount importance’, the same test which is applied under section 84(4) of the 2007 Act. In the present case, the separation is not absolute but the levels of contact with ZL in relation to both his birth parents and his siblings had been very substantially reduced by the sheriff from fortnightly to twice a year. This is a very significant reduction. However, the sheriff considered the matter with great care and applied the welfare principle specifically under reference to the eight factors derived from Mr and Mrs P v LD & Ors.^iv

He concluded:

Against this background, I agree with the petitioner’s position that the opportunity for [ZL] to benefit from the newfound stability and security provided by the permanence order must be prioritised over birth family contact. While that is not something that ZL’s family agree with, they must understand that it is not their interests that the court is considering – the court is focussed on [ZL] and his best interests.

His decision followed recommendations made to the court by Dr Katherine Edward, a chartered clinical psychologist who had prepared two reports and a third one in conjunction with a colleague, in relation to the questions of residence and contact for ZL. Dr Edward’s recommendation was to reduce to biannual contact, supported by a social worker and senior social worker from the children’s services team working with the family. This provided the body of evidence to support the sheriff’s decision to reduce parental and sibling contact as substantially as he did. Furthermore, there was within the sheriff’s decision the possibility that contact between the siblings might become unsupervised or extended, which recognises the changing and ongoing rights of the child and family in respect of Article 8.