Application By Fife Council For An Order In Respect Of The Child Ec
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Bracadale,Lord Drummond Young |
| Judgment Date | 29 October 2015 |
| Neutral Citation | [2015] CSIH 74 |
| Published date | 29 October 2015 |
| Date | 29 October 2015 |
| Court | Court of Session |
| Docket Number | XA34/15 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 74
XA34/15
Lord Menzies
Lord Bracadale
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRACADALE
in the Application
by
FIFE COUNCIL
For an Order in respect of the Child EC
Applicants and Respondents: Dowdalls QC, Louden; Balfour + Manson LLP
First respondent: Clarke; Drummond Miller LLP
Second Respondent and Appellant: J M Scott QC, Aitken; Thorley Stephenson SSC
29 October 2015
Introduction
[1] The second respondent and appellant (F) is the natural father of child E who was born on 23 February 2012. The first respondent (M) is the natural mother of the child. The applicant and respondent is the local authority.
[2] On 27 February 2015 in respect of E the sheriff made a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act). The order included the mandatory provision set out in section 81, certain ancillary provisions in terms of section 82 and, in terms of section 80(2)(c), a provision granting authority for the child to be adopted. This appeal is against both the making of the permanence order and the granting of authority for adoption. Although the appeal was brought by F, M, in her answers and before us, contended that the Sheriff had also erred in his decisions in relation to her.
Statutory provisions
[3] The statutory provisions under the 2007 Act relevant to this appeal are sections 14, 80, 83 and 84. Section 80 provides for the making of a permanence order. So far as relevant for present purposes it provides:
“(1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.
(2) A permanence order is an order consisting of—
(a) the mandatory provision,
(b) such of the ancillary provisions as the court thinks fit, and
(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.”
[4] So far as relevant for present purposes section 84 of the 2007 Act provides:
“(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.
(4) In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.
(5) Before making a permanence order, the court must—
(a) after taking account of the child's age and maturity, so far as is reasonably practicable—
(i) give the child the opportunity to indicate whether the child wishes to express any views, and
(ii) if the child does so wish, give the child the opportunity to express them,
(b) have regard to—
(i) any such views the child may express,
(ii) the child's religious persuasion, racial origin and cultural and linguistic background, and
(iii) the likely effect on the child of the making of the order, and
(c) be satisfied that—
(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act 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.
(6) A child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of subsection (5)(a).”
[5] An order granting authority for the child to be adopted may only be made if the conditions in section 83 are met. So far as relevant for present purposes section 83 provides:
(1) The conditions referred to in section 80(2)(c) are—
(a) that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted,
(b) that the court is satisfied that the child has been, or is likely to be, placed for adoption,
(c) that, in the case of each parent or guardian of the child, the court is satisfied—
(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or
(ii) that the parent's or guardian's consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),
(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.
(2) Those grounds are—
(a) that the parent or guardian is dead,
(b) that the parent or guardian cannot be found or is incapable of giving consent,
(c) that subsection (3) or (4) applies,
(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.
(3) This subsection applies if the parent or guardian—
(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,
(b) is, in the opinion of the court, unable satisfactorily to—
(i) discharge those responsibilities, or
(ii) exercise those rights, and
(c) is likely to continue to be unable to do so.
…
(5) In subsections (1)(c) and (2), “parent”, in relation to the child in respect of whom the permanence order is to be made, means—
(a) a parent who has any parental responsibilities or parental rights in relation to the child, or
(b) a parent who, by virtue of a permanence order which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.”
[6] Section 14 provides general considerations in relation to making decisions as to the adoption of a child. So far as relevant for present purposes it provides:
(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The court or adoption agency must have regard to all the circumstances of the case.
(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.
(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—
(a) the value of a stable family unit in the child's development,
(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),
(c) the child's religious persuasion, racial origin and cultural and linguistic background, and
(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.”
Proceedings in the Sheriff Court
[7] The proof before the Sheriff took place in August and September 2014. He had before him affidavits from twelve witnesses and heard oral evidence from nine of them. On behalf of the local authority the evidence came from E's social worker AC and NH, a project worker with Includem, a charitable organisation that supported young people who had challenging chaotic behaviour. NH had been involved in providing support to M when M was 16 years old in relation to accommodation, education, training, employment and finances. E’s foster carer X gave evidence. On behalf of M the sheriff heard evidence from M herself, her mother EC and M’s current partner Y. On behalf of F the sheriff heard evidence from F, his partner CB, and F's father CM. In addition, affidavits were available from the father of CB and two friends of F and CB.
[8] The curator ad litem favoured the granting of the order as sought. The advice provided by the children’s hearing on 29 November 2013 recommended the move to permanence for E.
[9] The sheriff noted that there were factual matters which were in dispute, particularly between the evidence of the social worker AC and the evidence of M and F. He preferred the evidence of AC because it was supported by that of NH and documentary evidence from the social work files. It was not suggested that he was not entitled to take that approach.
[10] The factual history as it emerged in the evidence accepted by the sheriff was as follows. Prior to E’s birth concerns were raised by a social worker working with one of M’s siblings about M and the unborn child. When E was born M was living with her own mother EC. EC reported concerns to the social work department about M’s parenting of the child. Similar concerns were expressed by the midwife. By the time E was born M and F were no longer in a relationship. There were concerns about M’s partners. At the time of the birth her then partner had just been released from prison.
[11] On 16 April 2012 at an initial child protection case conference a unanimous decision was made to place the child on the child protection register. She was assessed as being at risk of physical neglect and emotional abuse. At that time M and the child should have been living with a third party Mrs F, but were not doing so. Because of continuing concerns about M’s care of the child the sheriff granted a Child Protection Order on the application of the social work department. The child was placed with a foster carer X with whom she has remained ever since.
[12] In April 2012 M was advised that she needed to show a measure of stability in her life. She formed a relationship with another man, R, which, although initially appearing to be positive, proved to be volatile and characterised by domestic violence. R’s mother reported concerns about the excessive drinking of the couple and the fact that they were stealing money from her. This relationship continued until December 2012.
[13] On 13 July 2012 grounds for a referral were established at the Sheriff Court.
[14] For a period after E’s placement with X M had direct contact with her. Contact was arranged three times a week but M was...
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