City of Edinburgh Council v GD
| Jurisdiction | Scotland |
| Judgment Date | 01 August 2018 |
| Neutral Citation | [2018] CSIH 52 |
| Docket Number | No 1 |
| Date | 01 August 2018 |
| Court | Court of Session (Inner House) |
[2018] CSIH 52
First Division
Sheriff Appeal Court
Anderson v Imrie [2018] CSIH 14; 2018 SC 328; 2018 SLT 717
B (A Child) (Care Proceedings: Appeal) (Re) sub nom B (A Child) (Care Proceedings: Threshold Criteria (Re) [2013] UKSC 33; [2013] 1 WLR 1911; [2013] 3 All ER 929; [2013] 2 FLR 1075; [2013] 2 FCR 525; [2013] HRLR 29; [2013] Fam Law 946; 157 (24) SJLB 37
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F (Interim Care Order) (Re) [2011] EWCA Civ 258; [2011] 2 FLR 856; [2011] Fam Law 573
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Hogan v Highland Regional Council 1995 SC 1; 1995 SLT 466
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J v C [1970] AC 668; [1969] 2 WLR 540; [1969] 1 All ER 788; 113 SJ 164
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M v Children's Reporter 2015 SLT (Sh Ct) 215; 2015 Fam LR 138
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R v Stirling Council [2016] CSIH 36; 2016 SLT 689; 2016 SCLR 557; 2016 Fam LR 108
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Children and young persons — Permanence order — Threshold test of serious detriment to child — Child sustaining non-accidental injuries while in care of parents — Not established which parent was responsible for injuries — Time at which threshold test to be applied — Whether inference of serious detriment could be drawn — Adoption and Children (Scotland) Act 2007 (asp 4), sec 84(5)(c)(ii)
The City of Edinburgh Council sought a permanence order on 1 November 2016 in relation to the appellant's child. The sheriff refused the application and the council, thereafter, appealed to the Sheriff Appeal Court. On 8 March 2018, the SAC (Sheriff Principal D Pyle, Sheriff Principal DL Murray and Sheriff AM Cubie) granted the order ([2018] SAC (Civ) 5). The appellant thereafter appealed to the Inner House of the Court of Session.
Section 84 of the Adoption and Children (Scotland) Act 2007 (asp 4) (‘the 2007 Act’) provides, inter alia, “(3) The court may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made. … (5) Before making a permanence order, the court must– … (c) be satisfied that– (i) there is no person who has the right … to have the child living with the person or otherwise to regulate the child's residence, or (ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.”
A three-month-old child sustained non-accidental injuries while in the care of his parents. The local authority sought a permanence order in respect of the child, with authority for his adoption. It was not established before the sheriff which parent was responsible for having caused the injuries to the child. The sheriff determined that the threshold test set out in sec 84(5)(c) of the 2007 Act had not been met as serious detriment as at the date of his decision had not been proven on the balance of probabilities, and refused the application. The authority appealed to the Sheriff Appeal Court (‘SAC’). That court concluded that the sheriff had erred as the threshold test ought to be applied as at the time when the child was taken into care and that only a real possibility (not probability) of serious detriment was required. The SAC substituted a decision finding that the threshold test had been met and granted the permanence order with authority to adopt.
The child's father appealed to the Court of Session and argued that the SAC had erred in concluding that the threshold test in the 2007 Act had to be applied at the time of the removal of the child and argued that decisions regarding the likelihood of future harm had to be based on findings of fact established on the balance of probabilities. The authority argued that it had been sufficient for the purposes of the threshold test to prove that significant and non-accidental injuries had been inflicted on the child by one or both of his parents, even if it were not possible to determine which one, and that the SAC had been entitled to grant the permanence order with authority to adopt.
Held that: (1) the time for assessing the threshold test set out in sec 84(5)(c)(ii) of the 2007 Act was at the point of the final decision (paras 30, 31, 46, 138); (2) on the facts admitted or proved to the normal civil standard, the detriment to the welfare of the child had to be a real possibility in the sense of one which could not sensibly be ignored having regard to the nature and gravity of the harm feared (paras 31, 45, 54) (3) (per the Lord President and Lord Menzies, diss Lord Malcolm) where the child would be returned to exactly the same environment in which he had suffered injury there had to be — in the absence of a material alteration in circumstances — a real possibility of serious detriment, in the absence of an acceptable explanation for the injuries by either parent it was an almost inevitable conclusion that return of the child to the residence where the parents lived together was likely to be seriously detrimental to his welfare, and accordingly the threshold test had been met (paras 32, 33, 38, 47); (4) (per the Lord President and Lord Menzies) in considering whether it would be better to grant the permanence order and authority to adopt, there was a legal assumption that a child was best brought up by his parents and that an order which altered that situation should only be made when necessary as a last resort, but where the welfare of a child would be better protected by a permanence order then that order must be deemed necessary (paras 35, 45); (5) (per the Lord President and Lord Menzies) the Sheriff Appeal Court's analysis as to the necessity for a permanence order was sound (paras 39–41, 45); and appeal refused.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Malcolm, for a hearing, on 12 June 2018.
At advising, on 1 August 2018—
Lord President...
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