Midlothian Council v CMP [Court of Session Inner House Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 06 August 2013 |
| Neutral Citation | [2013] CSIH 71 |
| Date | 06 August 2013 |
| Docket Number | No 10 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Clarke, Lord Brailsford, Lord Wheatley
Children and young persons - Permanence order with authority to adopt - Whether sufficient weight attached to the need to consider reunification of the child and parent - Whether residence of child with mother likely to be seriously detrimental to her welfare - Whether consent of parent should be dispensed with - Adoption and Children (Scotland) Act 2007 (asp 4), secs 14, 80-84
Section 80(1) of the Adoption and Children (Scotland) Act 2007 (asp 4) provides, "The appropriate court may, on the application of a local authority, make a permanence order in respect of a child." Sections 81 and 82 set out the provisions which must and may be included in such an order in relation to parental responsibilities and rights in relation to a child. Section 84 sets out the conditions and considerations applicable to the making of a permanence order. Section 84(5)(c)(ii) provides that where there is a person with the parental right in terms of sec 2(1)(a) of the Children (Scotland) Act 1995 (cap 36), the court must be satisfied that, "the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child." Section 83 sets out the conditions which must be met before the order may include authority for the child to be adopted.
CMP was the mother of a child, S, born on 15 May 2010. C and the child's father had a history of drug dependence and consequent offending behaviour. The couple had an older child, a boy, born in June 2004, who was removed from their care and placed with C's mother. From August 2011, C had residential contact with her son two nights per week.
Prior to the birth of S, a child protection case conference was held. A decision was taken that the child's name would be placed on the Child Protection Register at birth. Following assessment, the local authority concluded that it would not be in the best interests of the child to be placed in the care of her parents. A child protection order was granted shortly after her birth. She was discharged from hospital into the care of her father's sister and her husband. On 8 July 2010, the child was made subject to a supervision requirement in terms of which she was to continue to reside with her carers and have contact with her parents for an hour twice a week.
At a children's hearing, on 28 March 2011, at which neither the child's social worker, C nor the child's father were present, contact was reduced to once every two months. An appeal against that decision was conceded as in arriving at its decision the hearing had been misinformed by a report from another social worker. By the time that the appeal was granted, the application for a permanence order with authority to adopt in respect of S had been made by Midlothian Council. By virtue of an interlocutor, dated 6 October 2011, contact was to take place between S and her parents and grandparents one weekend a month.
Following proof, the Lord Ordinary granted the orders sought by the local authority ([2012] CSOH 63). The mother reclaimed.
It was argued on behalf of the reclaimer that the Lord Ordinary had failed to give respect to the mother's Art 8 rights. Contact was exercised in a manner which was not open to criticism and the mother's lifestyle was improving such that she was likely to provide a satisfactory lifestyle for the child. In these circumstances, the normal obligations of reuniting the parent and child would prevail and there was not sufficient reason for a permanent deprivation of parental rights and contact. There was a catalogue of violations of Art 8 of the European Convention on Human Rights and Fundamental Freedoms. In particular, the local authority had mislead the children's hearing with the result that a previously Art 8 compliant approach was abandoned. The Lord Ordinary had applied a straightforward welfare test rather than considering whether residence with C could be seriously detrimental to the child so as to justify depriving her of the right of residence. The high test for dispensing with C's consent to adoption was not met.
It was argued on behalf of the respondent that the Lord Ordinary had correctly applied the relevant statutory provisions and had taken all relevant matters into account in reaching his decision. He required to balance the Art 8 rights of C and other family members with the best interests of the child. In any such balancing of interests, the interests of the child must prevail.
Held that: (1) the Lord Ordinary placed sufficient weight on the need to consider the reunification of the child with her mother and appropriately applied the applicable statutory provisions (para 21); (2) there was compelling evidence before the Lord Ordinary which allowed him to reach the view that serious detriment would arise from failing to confirm the settled and secure situation in which the child was (para 24); (3) the Lord Ordinary analysed and balanced all competing interests under reference to the relevant law and against the overriding consideration and requirement to have regard to the paramount importance of the child's welfare and best interests (para 25); and reclaiming motion refused.
Midlothian Council applied for a permanence order with authority to adopt in respect of a child, S, born on 15 May 2010. The sheriff remitted the cause to the Court of Session (2012 Fam LR 25). Following proof, on 13 April 2012, the Lord Ordinary (Malcolm) granted the orders sought by the petitioners ([2012] CSOH 63). The mother, CMP, reclaimed.
Cases referred to:
Grgl v GermanyFLRUNKUNK (74969/01) [2004] 1 FLR 894; [2004] 1 FCR 410; [2004] Fam Law 411
H v HarknessSC 1998 SC 287; 1998 SLT 1431
Johansen v NorwayHRC (1997) 23 EHRR 33
KA v FinlandFLRUNKUNK (27751/95) [2003] 1 FLR 696; [2003] 1 FCR 201; [2003] Fam Law 230
Osborne v Matthan (No 2)SCUNK 1998 SC 682; 1998 SLT 1264; 1998 SCLR 691; 1998 Fam LR 50
R and H v UKHRCFLRUNK (2012) 54 EHRR 28; [2011] 2 FLR 1236; [2011] Fam Law 924
S v L [2012] UKSC 30; 2013 SC (UKSC) 20; 2012 SLT 961; [2012] HRLR 27; 2012 Fam LR 108
W v Aberdeenshire CouncilSC [2012] CSIH 37; 2013 SC 108; 2012 Fam LR 91; 2012 GWD 14-284
YC v UKHRCFLRUNKUNK (2012) 55 EHRR 33; [2012] 2 FLR 332; [2013] 2 FCR 36; [2012] Fam Law 932
Yousef v NetherlandsHRCFLRUNKUNK (2003) 36 EHRR 345; [2003] 1 FLR 210; [2002] 3 FCR 577; [2003] Fam Law 89
The case called before an Extra Division, comprising Lord Clarke, Lord Brailsford and Lord Wheatley, for a hearing on the summar roll, on 8 and 9 November 2012.
At advising, on 6 August 2013, the opinion of the Court was delivered by Lord Brailsford-
Opinion of the Court- [1] The first respondent and reclaimer is the mother of S, a female child born on 15 May 2010. For convenience she will be referred to as 'C' in this opinion. The father of the child did not enter appearance in the process before the sheriff and was not represented at the proof before the Lord Ordinary or at the reclaiming motion. The respondents before this court are the local authority within whose area S was born. For convenience they will be referred to as 'the local authority' in this opinion. By petition lodged in the sheriff court on 26 April 2011 the local authority sought a permanence order under sec 80 of the Adoption and Children (Scotland) Act 2007 (asp 4) ('the 2007 Act') in respect of the child S. The local authority further sought an order vesting in them certain parental responsibilities and rights in terms of secs 1 and 2 of the Children (Scotland) Act 1995 (cap 36) ('the 1995 Act'). The court was asked to extinguish the parental responsibilities and rights held by the child's natural parents, except those in relation to contact, and to dispense with their consent to the making of an adoption order. Authority was sought for the child to be adopted and for termination of a supervision requirement. Neither of the natural parents consented to the making of an adoption order. The sheriff on 29 August 2011 remitted the cause to the Court of Session. After sundry procedure a proof on these issues was heard following which, by interlocutor dated 13 April 2012, the Lord Ordinary granted the orders sought by the local authority. It is against this interlocutor that the present reclaiming motion is taken.
[2] The background facts were substantially agreed between the parties and contained in a joint minute which was before the Lord Ordinary at the proof. For present purposes these facts may be summarised as follows. The child S is the second child of C and her former partner. The couple had one older child, a male, born in June 2004. C, who was born in 1985, had a history of dependence on illegal drugs since she was 16 years of age, principally heroin. She had also used benzodiazepines and crack cocaine. Her drug abuse led her into criminal activity and she has an offending history dating back to 2000. She has convictions for dishonesty and a conviction under sec 12(1) of the Children and Young Persons (Scotland) Act 1937 (1 Edw 8 & 1 Geo 6 cap 37) in relation to her eldest child. In 2006 she received a drug testing and treatment order ('DTTO') which she breached and was sentenced to a period of...
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