Cs And Ms-m V. Cs And Lh
| Jurisdiction | Scotland |
| Judge | Sheriff W. Holligan |
| Court | Sheriff Court |
| Docket Number | F861/10 |
| Date | 08 September 2010 |
| Published date | 14 September 2010 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
F861/10
| JUDGEMENT of SHERIFF WILLIAM HOLLIGAN in causa CS & MS-M Pursuers against CS First Defender and LH Second Defender |
Act, Karlin, Pursuers
Alt, McFall, First Defender,
Foy, Curatrix
Innes, Advocate, for the City of Edinburgh Council
8th September 2010
[1] This action concerns the welfare of M born on 26th May 2004. The first named pursuer is M's uncle. The second named pursuer is the first named pursuer's wife. The first defender is M's mother. The second defender is the partner of the first defender and the father of M. The second defender took no part in these proceedings. Intimation of the action was made to the City of Edinburgh Council who entered proceedings ("the Authority"). I appointed a curator (Mrs Foy) to M.
[2] The pursuers originally sought an order for parental rights and responsibilities in relation to M pursuant to section 11 of the Children (Scotland) Act 1995 ("the 1995 Act").
[3] The procedural background to this application is that the Authority made an application seeking an order that M be freed for adoption. That application was opposed by the first defender. The current pursuers stated a wish to look after M. The first defender stated that she did not, in principle, oppose such a disposal for M. In short, after sundry procedure the adoption action at the instance of the Authority was abandoned and the current proceedings commenced. In the course of the proceedings it became clear that the action raised a number of issues which required to be resolved. In the interests of M I made an order, stating my reasons would follow.
[4] Before I deal with the legal issues it is necessary that I set out some of the factual background. It is not necessary that I set out all of the material. The Authority lodged a very detailed and helpful report setting out M's family background and material relating to the pursuers. M is the fourth child of the defenders. He has been the subject of a supervision order all his life. The other three children of the defenders (all boys) are aged 10, 8 and 6 respectively. They are all in the care of maternal aunts. They are all subject to supervision requirements. Both defenders are heavily involved in drugs. In short, the first defender is not able to look after M. M was made the subject of a child protection order on the day of his birth. Various attempts were made to rehabilitate the first defender so as to be able to care for M. For some time M was in her care. However, because of concerns as to M's welfare in her care a place of safety warrant was sought and granted in or about July 2008. M has been in foster care ever since. In March 2009 the Edinburgh Adoption and Permanence Panel concluded that neither of M's parents was able to provide a safe and stable environment in which M's welfare could be promoted. The Adoption and Permanence Panel registered him as a child in need of permanent substitute care. On 6th May 2010 the Matching Panel unanimously agreed that his needs would best be met by a permanent placement with kinship carers. The kinship carers referred to are the pursuers.
[5] Principally for employment reasons, the pursuers currently reside in Abu Dhabi. They previously resided in Scotland. The first pursuer is Scottish and he regards himself as domiciled in Scotland. The second named pursuer is Dutch. Their plan is to move to Dubai. They continue to own property in Scotland. Both pursuers are in secure and well paid employment. The second named pursuer proposes to give up her employment so as to help care for M. The pursuers have no children of their own. All of the reports and all the views of the adults, professional or lay, are to the effect that the pursuers are committed to looking after M and have both the resources and abilities to do so. Both families of the pursuers are supportive of the proposal. Provisional arrangements have been made to enrol M in an appropriate school. M was aware of the proposal. Having regard to the pursuers' plans to return to Abu Dhabi and the plans that had been made to accommodate M, there was some need for urgency in dealing with the application.
[6] The pursuers were keen to have the order made in their favour. They were ready and willing to look after M and had cooperated fully in the process of assessing their suitability to do so. The Authority was also in favour of the order sought by the pursuers. A very thorough kinship assessment had been undertaken involving extensive enquiries. The pursuers were eminently suitable to look after M. Although the first defender had not formally entered process she was represented in the hearing before me. As it seemed to me it was very much in M's interest that the first defender be heard I allowed her solicitor to address me. The first defender is regretful that the current situation has arisen but she confirmed that she was more than happy for M to be with her brother and his wife. She did not oppose their application and was prepared to enter into a Minute of Agreement confirming her agreement to the proposal. (I shall refer to this aspect later). Given the magnitude of the proposal I considered that I ought to appoint a curator in relation to M. I appointed Mrs Foy whom the court had appointed as reporting officer and curator in the adoption proceedings. Mrs Foy had some knowledge of the factual background to this matter. Mrs Foy met with the pursuers, M's carers and with M himself. I should add I accept that Mrs Foy had limited time within which to carry out her inquiries and that what she reported to the court must be seen in that light. However, she was of the view it was in M's best interests that the order should be granted. The pursuers were clearly motivated and able to look after M. They knew and understood his relationship with his mother. His mother was unable to look after him. The foster carers supported the application. M was ready to "move on". He needs longer term stability. M himself was emphatic that he wanted to be with the pursuers. He had seen his proposed school and house and was keen to start. The terms of the proposed order were appropriate. The only qualification was that M had not lived with the pursuers for any length of time. As it is the intention to seek to adopt M, Mrs Foy felt she could not support such a proposal at this particular stage. Also, although M's siblings were living with other relatives he did have contact with them. He would lose this contact as a result of the move. However, it was the intention of the pursuers that M meet his siblings during holiday periods. I understood there had already been regular visits between Abu Dhabi and Scotland.
Legal issues
[7] At the end of the day, the pursuers who live in the United Arab Emirates ("UAE") seek an order from this court that M live with them, in the hope that adoption may be possible. This simple proposition concealed a number of issues which fell to be addressed. As I have said, the writ, as originally framed, sought a parental rights and responsibilities order. It was accepted, at a later stage in proceedings, that any order granted should properly be a guardianship order. That in itself gave rise to certain issues.
Guardianship Order
[8] The pursuer's solicitor lodged a helpful note in support of the application for the making of a guardianship order. I was referred to certain authorities (Wilkinson & Norrie, Parent and Child (2nd edition); Butterworths Family Law Service, particularly at C548). These authorities all describe a guardian appointed pursuant to the 1995 Act as a "parent substitute" (Wilkinson & Norrie, paragraph 9.07; Butterworths C951). The appointment of a guardian is regulated, principally but not exclusively, by the 1995 Act. I refer to sections 7, 8, 11(2) (h) thereof. There remain certain provisions in section 5 of the Age of Legal Capacity (Scotland) Act 1991 ("the 1991 Act") referring to guardians. The history of the term "guardian" in Scots law is set out in detail at paragraphs 7.01 and 7.02 of Wilkinson & Norrie. Nowhere in the 1995 Act is the term "guardian" defined. Section 7 of the 1995 Act describes the circumstances in which a parent may appoint a person to be a guardian of their child in the event of their death. It is clear from sections 11(1) (c) and 11(2) (h) that the court may also appoint a guardian. Section 7(5) of the 1995 Act provides that any person appointed guardian shall have the same rights and responsibilities as a parent and that sections 1 and 2 of the 1995 Act apply to a guardian "as they apply to a parent". Both sets of authors (Wilkinson & Norrie 9.07 and Butterworths C548) agree that when parental rights and responsibilities are conferred upon a person who is not a parent then the order is more appropriately one of guardianship rather than the grant of an order of parental rights and responsibilities. I respectfully agree with that proposition. Leaving aside the complexities of unmarried fathers, married parents, in general terms, hold parental rights and responsibilities by virtue of being parents of the child. Implicit in section 7(1) and (5) is the proposition that a guardian is someone other than a parent to whom parental rights and responsibilities are given, either by testamentary deed or by order of the court. Such an order does not, in itself, deprive a parent of their parental rights and...
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