S v L
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LORD WILSON,LADY HALE,LORD REED,LORD CARNWATH |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] UKSC 30 |
| Date | 2012 |
| Docket Number | No 2 |
| Court | Supreme Court (Scotland) |
[2012] UKSC 30
Before
Lord Hope, Deputy President
Lady Hale
Lord Wilson
Lord Reed
Lord Carnwath
Appellant
Lord Davidson of Glen
Clova QC
Maria Clarke
(Instructed by Drummond Millar LLP)
Respondent
Morag B Wise QC
Catherine Dowdalls
(Instructed by JK Cameron)
Respondent
Gerry J B Moynihan QC
Alastair J Duncan
(Instructed by The Scottish Government Legal Directorate)
Heard on 21 and 22 May 2012
LORD REED (WITH WHOM LADY HALE AND LORD WILSON AGREE)
The issue in this appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is within the legislative competence of the Scottish Parliament. It is contended on behalf of the appellant that the provision is incompatible with the Convention rights set out in Schedule 1 to the Human Rights Act 1998, that section 29(2)(d) of the Scotland Act 1998 therefore applies, and that the provision is accordingly not law.
The issue has arisen in the course of adoption proceedings in the Sheriff Court, in circumstances to which I shall return. The sheriff decided to refer the issue to the Inner House of the Court of Session, in accordance with paragraph 7 of Schedule 6 to the Scotland Act. The Inner House held that the provision was not incompatible with the Convention rights and was within the legislative competence of the Parliament: ANS and DCS v ML [2012] CSIH 38, 2012 SC 8. The present appeal is brought against that decision, in accordance with paragraph 12 of Schedule 6.
The appellant is the mother of the child who is the subject of the adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. The second respondent is the Lord Advocate, who has become a party to the proceedings in order to defend the lawfulness of the provision in issue.
Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (1) provides that an adoption order may not be made unless one of five conditions is met. The first condition is set out in subsection (2):
"(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied—
(a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or
(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3)."
Put shortly, the first condition will therefore be met where the court is satisfied that each parent or guardian of the child consents to the making of an adoption order, or that the parent's or guardian's consent should be dispensed with on one of the grounds mentioned in subsection (3).
It is unnecessary for the purposes of the present appeal to consider the remaining conditions in detail. It is sufficient to note that they concern situations where the consent of parents or guardians, or dispensing with such consent, is no longer a live issue.
Returning to the first condition, the grounds on which the parent's or guardian's consent to the making of the adoption order may be dispensed with are set out in subsection (3):
"(3) 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 ( 4) or (5) applies,
(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with."
Paragraphs (a) and (b) of subsection (3) are self-explanatory. Paragraph (c) refers to subsections (4) and (5), which are in the following terms:
"(4) 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 [Children (Scotland) Act 1995],
(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) This subsection applies if—
(a) the parent or guardian has, by virtue of the making of a relevant order, no parental responsibilities or parental rights in relation to the child, and
(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian."
A "relevant order", for the purposes of subsection (5), is a permanence order which does not include provision granting authority for the child to be adopted: section 31(6).
Section 31 has to be read along with other provisions of the 2007 Act. In particular, it is necessary to have regard to section 14, which is concerned with the considerations relevant to the exercise of powers under the Act. So far as material, it provides as follows:
"(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."
It is also necessary to have regard to section 28, which so far as material provides:
"(1) An adoption order is an order made by the appropriate court on an application under section 29 or 30 vesting the parental responsibilities and parental rights in relation to a child in the adopters or adopter.
(2) 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.
(3) An adoption order may contain such terms and conditions as the court thinks fit."
Section 31(4) and (5) also has to be read along with the definitions of parental responsibilities and parental rights in sections 1(1) and 2(1) of the Children (Scotland) Act 1995, as amended. Section 1(1) provides:
"(1) … a parent has in relation to his child the responsibility—
(a) to safeguard and promote the child's health, development and welfare;
(b) to provide, in a manner appropriate to the stage of development of the child—
(i) direction;
(ii) guidance,
to the child;
(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative,
but only in so far as compliance with this Section is practicable and in the interests of the child."
Section 2(1) provides:
"(1) … a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—
(a) to have the child living with him or otherwise to regulate the child's residence;
(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;
(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative."
Finally in this context, it is relevant to note the terms of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In the printed case, it was argued on behalf of the appellant that section 31(3)(d) was incompatible with the right of a parent to respect for her family life, as guaranteed by article 8. The provision applied only where neither section 31(4) nor section 31(5) applied: that is to say, where the court did not consider that the parent was unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and was likely to continue to be unable to do so, or where the parent was not someone who was subject to an order removing parental responsibilities and rights and was unlikely to have such responsibilities or rights restored in the future. In other words, section 31(3)(d) was applicable only in circumstances in which the parent was able to fulfil her parental responsibilities satisfactorily or, if presently unable to do so, was not likely to continue to be unable to do so. In that situation, a provision which allowed a court to sever permanently the bond between parent and child, merely on the basis of an assessment of the child's welfare, failed to respect the rights of the parent under article 8. The dangers of a broad test of welfare had been identified by this court in In re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7.
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