Abstract
Cases
These cases are available on the Scottish Courts website at www.scotcourts.gov.uk.
Clarification Of The Court Procedures When Granting Applications For Parental Orders Under The Human Fertilisation And Embryology Act (Hfe) 2008, Section 54
AB & XY (Petitioners) [2023] CSOH 46
Lady Carmichael
13 July 2023
Circumstances Of The Case
A couple was unable to have children and the sister of the woman agreed to be a surrogate, as a result of which twins were born in 2021. The couple separated in 2022, following which each brought two applications under the HFE Act 2008, section 54 for the granting of parental orders. This would have the effect of the children being treated in law as if born of the persons who obtained the orders. Reference is made to the Adoption and Children (Scotland) Act 2007.
Certain provisions must be satisfied in the making of the orders and in this particular case, issues had arisen in respect of these, namely:
Applicants must apply for the order within six months of the children’s birth, but these applications were made when the children were 21 months old. Whether the applicants could be regarded as being in ‘an enduring family relationship’ given their separation. The children’s home must be with the applicants at the time of the making of the order and again, given the applicants’ separation whether this provision was satisfied.
Decision
Having considered the highlighted issues, the court granted the applications. The liberal and purposive approach to construction and interpretation of the legislation led to the making of this decision. The judge made reference to published decisions in England and Wales; the publication of this judgement provides a Scottish context to that bank of authorities and jurisprudence.
Children’S Hearings Cannot Make Decisions Which Presume Any Separation Of A Child From Their Parents Will Be Permanent; This Is The Domain Of The Courts
LD & MD v Authority Reporter SCRA SC STI 22
Sheriff MacDonald
11 January 2022 (published 28 July 2023)
Circumstances Of The Case
This case involved a 22-month-old child who had been in care since birth. A Children’s Hearing had taken place in November 2021 and the child’s birth parents appealed the Hearing’s decision under the Children’s Hearings Scotland Act 2011, section 154. The parents were not appealing the decision in relation to the continuation of the Compulsory Supervision Order (CSO); rather, the appeal related solely to the measure regulating each parent’s contact with the child. The decision had been made to reduce contact between the child and mother from once a fortnight to once a month for one hour, and for the father’s contact with the child to change from direct to indirect contact. The reason for this decision was that, as a result of the local authority’s plan for the child to be permanently placed away from home, the purpose of contact had changed to supporting the development of ‘a coherent life story work’ for the child.
A further decision was made to suspend contact for an eight-week period, and this too was appealed. The reason for the suspension was to minimise any confusion or disruption while the child settled into their ‘forever family’.
Decision
The Sheriff upheld the appeals and remitted back to a ‘properly directed’ Children’s Hearing to consider afresh the issue of contact. He found that the Hearing had failed to have proper regard to the incompatibility of the temporary nature of a CSO with the social work plan for permanence, which the Hearing had endorsed in their decision-making in relation to contact.
He stated that ‘there cannot be any legitimate de facto permanence arrangement without a court order under domestic law. Such an arrangement would in my judgement further be incompatible with not only the Article 8 rights of a birth parent but also those of the child, and so would be unlawful under section 6(1) of the 1998 Act’ (namely the Human Rights Act 1998).
Mens Rea Must Be Present Where An Offence Of Assault Is Established In Grounds For Referral
JH v SCRA SAC (Civ) 21
Opinion delivered by Sheriff Principal Lewis
30 May 2023
Circumstances Of The Case
The Sheriff had found established Grounds for Referral which stated that a Schedule 1 offence, namely assault, had been committed by a father in respect of his six-week-old daughter. Both parents appealed this decision on the basis that the father lacked the requisite mens rea for an offence of assault to be established. The father accepted that by roughly handling the baby while changing her nappy, he had caused bruising to her body.
Decision
For an offence of assault to be established, the court must find it proved that there was an intention to cause bodily harm, or fear of such harm; that requirement had not been met in this case. The alternative offence of wilful and reckless conduct should have been considered by the Sheriff. The matter was therefore remitted back to the Sheriff for disposal with a direction that she makes an appropriate amendment to the statement of grounds to reflect the commission of an offence under section 12 of the 1937 Act. Thereafter she would find the amended statement of grounds established and remit the case to the Principal Report.