Appeal By Ecc Against Gd
| Jurisdiction | Scotland |
| Judge | Sheriff A M Cubie,Sheriff Principal D L Murray,Sheriff Principal D C W Pyle |
| Neutral Citation | [2018] SAC (Civ) 5 |
| Date | 08 March 2018 |
| Docket Number | EDI-AD6-16 |
| Court | Sheriff Appeal Court |
| Published date | 12 March 2018 |
SHERIFF APPEAL COURT
[2018] SAC (Civ) 5
EDI-AD6-16
Sheriff Principal Pyle
Sheriff Principal Murray
Appeal Sheriff Cubie
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL D C W PYLE
in appeal by
ECC
Appellant
against
GD
Respondent
Appellant: Scott QC; City of Edinburgh Council
Respondent: Inglis; Lisa Rae & Co
8 March 2018
Introduction
[1] This is an appeal from the decision of the sheriff to refuse the appellant’s application
for a permanence order with authority to adopt in respect of a child who is four years old. It
raises three important matters: 1, the application of the threshold test where there is a non-
accidental injury to the child which has been inflicted by one or other of the parents but
where the petitioning authority is unable to prove which one; 2, the correct construction of
the phrase “is… seriously detrimental to the welfare of the child” within section 84(5)(c)(ii)
2
of the Adoption and Children (Scotland) Act 2007, which creates the threshold test for
permanence orders; and 3, the legal consequences, if any, of a material change in the
position of one of the parents late on in the process.
The relevant facts
[2] We discuss some of the evidence later in this judgment, but for present purposes the
relevant facts may be summarised as follows:
1. The appellant’s application was originally opposed by both parents. However, the
mother’s agent withdrew from acting during the course of the preparations for the
proof and the mother failed to attend a subsequent peremptory diet. Accordingly,
the only parties at the proof were the appellant and the father, GD.
2. The child, SD, was born in February 2014. He is the mother’s third child. GD is not
the father of the other two children, born in 2009 and 2012 respectively. The elder of
those children was removed from the mother’s care due to physical injury and
neglect, while the younger was also removed, in 2012, due to the mother’s inability
to attune to her needs and priorities and prioritise them over her own. Both children
have since been adopted and have no contact with their mother.
3. GD was born in India. He came to the UK on a student visa which has since
expired. He does not currently have leave to remain here.
4. From birth SD was on the child protection register, but initially thrived in the care
of his mother and GD, albeit with a high level of monitoring and support.
5. Following a visit to hospital to deal with a viral infection, a routine follow up
appointment took place in May 2014. On examination of SD the doctors noted
bruising on the child’s face and a possible rib fracture, which was subsequently
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