Appeal From The Sheriff Principal Of Grampian, Highlands And Islands By Lo In The Petition For Adoption Under The Adoption And Children (scotland) Act 2007 By N And C
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Menzies,Lord Glennie |
| Neutral Citation | [2017] CSIH 14 |
| Year | 2017 |
| Published date | 16 February 2017 |
| Date | 16 February 2017 |
| Court | Court of Session |
| Docket Number | XA134/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 14
XA134/16
Lord Menzies
Lady Clark of Calton
Lord Glennie
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the appeal from the Sheriff Principal of Grampian, Highlands and Islands
by
LO
Appellant;
in the petition for adoption under the Adoption and Children (Scotland) Act 2007
by
N and C
Respondents:
Appellant: Aitken; Balfour + Manson LLP (for Civil Legal Assistance Office)
Respondent: Malcolm; Morisons LLP (for Innes & McKay)
16 February 2017
Summary
[1] LO, the appellant, is the mother of the child E born September 2011 and has parental rights and responsibilities in respect of E. As a result of behavioural problems, offences, and episodes of alcohol abuse by LO, the child E was placed with N and C, the respondents, who have looked after E for most of her life. N and C were approved as kinship carers of E in August 2013.
[2] In 2015 N and C raised a petition in the Sheriff Court at Tain seeking adoption of E. The petition inter alia set out averments relating to section 14 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act); terms and conditions under section 28(3) of the 2007 Act; and the dispensation of consent by LO under section 31 of the 2007 Act. Paragraph 38 of the petition stated:
“38. The birth mother’s consent should be dispensed with on the grounds that she has parental rights and responsibilities but is unable to satisfactorily discharge those responsibilities or to exercise those rights, and that she is likely to continue to be unable to do so, or that the welfare of the Child otherwise requires her consent to be dispensed with.”
Said paragraph contains an implied reference to sections 31(4) and 31(3)(d) of the 2007 Act. The respondents to the adoption petition were LO and DM. DM is the natural father of E and does not have parental rights and responsibilities. He has never been involved in the care of E. The petition for adoption was opposed by LO on the basis that:
“The child is financially and emotionally safe and secure in the current arrangement. It is not better for the child that the order be made. The child’s welfare is safeguarded in terms of the compulsory supervision order.
The Respondent is able to satisfactorily discharge her parental responsibilities and exercise her parental rights.
If an adoption order is made, the Respondent would wish to seek an order for contact.”
DM sought only contact post‑adoption and he was not party to any appeal.
[3] The sheriff heard evidence on 19 August, 16 September and 14 October 2015 and issued his Judgment on 10 November 2015. A Joint Minute of Admissions agreed a history of some events, relating to the parties and to E, up to June 2014. The sheriff made an Adoption Order under section 29 of the Adoption and Children (Scotland) Act 2007 vesting parental rights and responsibilities in respect of E in N and C. He included in the Adoption Order conditions of contact in terms of section 28(3) in respect of both LO and DM on different terms; he dispensed with the consent of LO to making an adoption order on the ground that she is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so; and terminated the Compulsory Supervision Order.
[4] LO appealed to the sheriff principal both in relation to the making of the Adoption Order and contact. The sheriff principal allowed the appeal in part in relation to contact but quoad ultra refused the appeal.
The Grounds of Appeal by LO in the Inner House
[5] The appeal before this court relates only to whether there was error in law in the making of the Adoption Order and whether the Order was lawful. Contact is no longer in dispute. There are four grounds of appeal which in summary state:
1. The sheriff, and, in turn, the sheriff principal erred in law in respect of the decision to dispense with the consent of LO to adoption under section 31(3)(c) read with section 31(4) of the 2007 Act. They erred in the interpretation and application of the relevant test. The test does not involve an assessment of the welfare of the child or what orders should be made in the interests of the child. The factors relied upon by the sheriff and, in turn, by the sheriff principal in determining that the test was met are not properly concerned with an assessment of parental capacity to satisfactorily discharge parental responsibilities and exercise rights now and in the future. There are no findings in fact or matters addressed in the sheriff’s narrative which properly allow for a conclusion that LO was, and shall continue to be, incapable in the way envisaged in section 31(4).
2. The sheriff erred in law in his approach to the structure of the 2007 Act. The error resulted in the sheriff determining that the order should be granted before he had considered whether the facts of the case, as considered in light of the statutory tests, allowed him to make the order. The sheriff principal erred in finding that this error by the sheriff did not vitiate the sheriff’s decision.
3. The sheriff failed to apply the high test required when considering whether adoption, and nothing less than adoption, was proportionate and necessary in the manner explained in S v L, 2013 S.C. (UKSC) 20 and Fife Council, Petitioners, [2015] CSIH 74 at [59] to [67]. The sheriff principal erred in concluding that the sheriff’s reasoning was sufficient and that adoption was properly established to be necessary in the way explained.
4. The sheriff’s decision to grant adoption and the sheriff principal’s decision to refuse the appeal against that decision are incompatible with the rights of LO as protected by Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 (“the ECHR”) as explained, inter alia, by the Supreme Court in S v L and Re B (A Child) (Care Proceedings: Threshold Criteria), [2013] 1 WLR 1911. As such, the said decisions are unlawful; Human Rights Act 1998, section 6.
Submissions by Counsel
[6] Counsel for the parties both provided detailed written submissions which we commend for their clarity and focus. As a result this court was able to identify issues of concern to the court and invited oral submissions on specific issues. The main issues included the nature and meaning of the “incapacity” test under section 31(4) of the 2007 Act; the effect of the Children (Scotland) Act 1995 (the 1995 Act) and in particular the availability of Residence Orders in terms of section 11; and the implications both legal and practical of the various possible disposals of the appeal.
Submissions on behalf of LO, the birth mother
[7] Counsel invited the court to recall the interlocutor of the sheriff dated 10 November 2015 and of the sheriff principal dated 13 May 2016 and to dismiss the petition. This was his primary submission but in the event that this court decided to remit the case, he invited a remittal to a different sheriff.
[8] The main submissions of counsel related to the importance of the structure of the 2007 Act in particular sections 31, 14(3) and 28(2). The sheriff in this case purported to rely on section 31(4) but that test does not involve an assessment of the general welfare of the child or the appropriateness of adoption. If the test in section 31(4) is not established, no Adoption Order can be made. An example of how properly to apply the section 31(4) test is S, Petitioner [2014] CSIH 42 where the test is referred to as the “incapacity” test. An order for adoption is not a balancing exercise, it is an order of last resort which must be human rights compliant. Reference was made to S v L; In Re B (A Child) (Care Proceedings: Threshold Criteria) and Fife Council, Petitioners. The findings in fact made by the sheriff are wholly inadequate to justify a conclusion that section 31(4) is satisfied and in any event the sheriff was not entitled to conclude in finding in fact 10 that LO is unlikely to be able to parent E safely were E to be returned to her or to make finding in fact 13.
[9] Counsel submitted that even if the sheriff had been entitled to conclude that section 31(4) was established, the sheriff required to consider the essential welfare considerations set out in section 14 and thereafter to consider the terms of section 28(2) which acts as a limitation on the granting of any Adoption Order. Section 28(2) of the 2007 Act states:
“The court must not make an Adoption Order unless it considers that it would be better for the child that the order be made than not.”
Under reference to S v L, counsel emphasised the importance of the statutory provisions which, when properly applied, ensured an ECHR compliant necessity test. A court should adopt the “least interventionist” approach as exemplified in X v Y 2015 Fam. L.R. 41 where the sheriff refused to grant adoption despite the child being happy and settled and wishing to be adopted and the child having no ongoing contact with the respondent birth mother. In that case, the sheriff concluded that the more proportionate order was a Residence Order with parental responsibilities and rights and concluded that in those circumstances adoption could not be granted. Counsel emphasised that in the present case, E was in a kinship placement which LO supported; E knew LO as her mother; there was ongoing contact and E had natural half siblings with whom E had contact as a result of her contact with LO. There is nothing in the decision making of the sheriff or sheriff principal which addressed these issues. The proper approach in this case was that followed in Fife Council, Petitioners 2016 SC 169.
[10] Although the sheriff principal recognised the inadequacies in the Judgment of the sheriff, he also fell into error in that he failed to appreciate that the appeal did challenge the inferential conclusions and the findings in fact made by the sheriff. There was a...
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