Re A (Adoption)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1293 (Fam) |
| Court | Family Division |
| Date | 26 May 2017 |
| Docket Number | Case numbers omitted |
[2017] EWHC 1293 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
Mr Jonathan Buchan (instructed by Marsden Rawsthorn) for the applicants (prospective adopters of A and O)
Ms Lorraine Cavanagh (instructed by Farleys) for A and O's parents
Mr Alan Inglis of the English Bar and Scottish Bar (instructed by local authority solicitors) for Dundee City Council
Mr Christopher Blackburn (of John Whittle Robinson) for A and O's guardian
Hearing date: 3 May 2017
Judgment Approved
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
In Re A and others [2017] EWHC 35 (Fam) I was concerned with a number of cases in which applicants living in England were seeking from the (English) Family Court an adoption order pursuant to the Adoption and Children Act 2002 in relation to a Scottish child who had been placed with them by a Scottish local authority following the making by a (Scottish) Sheriff Court of a permanence order with authority to adopt under sections 80 and 83 of the Adoption and Children (Scotland) Act 2007. In each case, the application was being made in accordance with section 47(6)(a) of the 2002 Act: see Re A, para 4.
In the present case I am concerned with a case in which the applicants, as I shall refer to them, live in England and are seeking from the (English) Family Court an adoption order pursuant to the Adoption and Children Act 2002 in relation to two Scottish children, A and O, placed with them by a Scottish local authority, Dundee City Council, following the making by a (Scottish) Children's Hearing of a compulsory supervision order under section 83 of the Children's Hearings (Scotland) Act 2011. It is, correctly, common ground that the application is being made in accordance with section 47(2) of the 2002 Act: section 47(4) cannot apply because there is neither parental consent nor (English) placement order; section 47(6) cannot apply because there is no (Scottish) permanence order.
There is a most useful description of the two different types of Scottish order in Mostyn J's judgment in Re Z (Adoption: Scottish Child Placed in England: Convention Compliance) [2012] EWHC 2404 (Fam), [2013] 1 FLR 618. It should be noted that, although the 2011 Act had been enacted by the time Mostyn J gave judgment, it was not yet in force: see Re Z, para 10. The equivalent legislation was then to be found in the relevant parts of the Children (Scotland) Act 1995.
Information provided by local authorities in Scotland in response to requests for information under the Freedom of Information (Scotland) Act 2002 indicates that these are not isolated cases. Many local authorities in Scotland, and as far north as Aberdeen, have placed children in England in recent years, in all some 52, some 33 with plans for adoption. Some 24 of these children were subject to permanence orders; some 10 to compulsory supervision orders.
The Scottish legislation
Before proceeding any further, it is necessary to recall that, in contrast with the English concept of "parental responsibility", as defined in section 3 of the Children Act 1989, the Scottish concepts are of "parental responsibilities" and "parental rights", as defined in sections 1 and 2 of the 1995 Act: see Re A, paras 11–16. I have previously explained how, for the purposes of the 2002 Act, one reads across from the Scottish to the English legislation: see Re A, paras 55–61.
A child may be brought before a Children's Hearing if any one of the grounds set out in section 67 of the 2011 Act (see previously section 52 of the 1995 Act) is established. Section 83 of the 2011 Act (see previously section 70 of the 1995 Act) provides as follows:
"(1) In this Act, "compulsory supervision order", in relation to a child, means an order –
(a) including any of the measures mentioned in subsection (2),
(b) specifying a local authority which is to be responsible for giving effect to the measures included in the order (the "implementation authority"), and
(c) having effect for the relevant period.
(2) The measures are –
(a) a requirement that the child reside at a specified place,
…"
I need not set out the other "measures" specified in section 83(2). The "specified place" need not be in Scotland; it can be in England. And, as Mr Inglis points out, there is nothing in English law prohibiting the placement of Scottish children with carers in England. It follows, he says, and I agree, that the legality of such a placement is therefore governed by Scots law.
Section 144, so far as material for present purposes, provides that:
"(1) The implementation authority must give effect to a compulsory supervision order.
(2) The implementation authority must in particular comply with any requirements imposed on it in relation to the child by the compulsory supervision order."
I need not go into the details, but sections 146–147 provide mechanisms for enforcement if the implementation authority fails to comply with its duties under section 144, including application to the relevant sheriff principal for an order to enforce the implementation authority's duty.
It is important to appreciate, as Mr Inglis on behalf of Dundee City Council pointed out, that the local authority is not a party to the proceedings at a Children's Hearing.
It is also important to appreciate that none of the "measures" specified in section 83, affects the existence of either "parental responsibilities" or "parental rights", whether by restricting the responsibilities or rights of the parent (other than to the extent of any measure under section 83(2)) or by conferring them on the "implementation authority" or, indeed, on anyone else. In this connection, Mr Inglis helpfully referred me to the judgment of the Lord President (Emslie) in Aitken v Aitken 1978 SC 297, 302:
"The making of a supervision requirement does not deprive parents, or a person to whom custody of a child has been awarded, of their rights in relation to the child. It is properly to be regarded as just another of those lawful orders which may temporarily prevent the exercise of those rights."
Thus, no "parental responsibilities" or "parental rights" in relation to A and O are vested in Dundee City Council; conversely, their parents retain their "parental responsibilities" and "parental rights". Accordingly, for the purposes of the 2002 Act and FPR 14.3, Dundee City Council does not have "parental responsibility" for A and O; conversely, their parents do. They are, therefore, "parents" within the meaning of section 52(6) of the 2002 Act for the purposes of section 52(1), just as they are, for the purposes of FPR 14.3, parents who have parental responsibility. This position in relation to a case where a Children's Hearing has made a compulsory supervision order under section 83 of the 2011 Act thus stands in stark contrast to the position in relation to a case where the Sheriff Court has made a permanence order under section 80 of the 2007 Act: compare the analysis in Re A, paras 48, 55–60, 70.
Finally, it is important to note that a measure under section 83(2)(a) requires only that the child "reside at [the] specified place." It contains no limitations on the exercise by a (Scottish) local authority of any powers it may have in relation to the child, or in relation to the circumstances in which, or the legal arrangements subject to which, the child is to "reside" at the specified place. In particular, and this was not challenged by Ms Cavanagh on behalf of the parents, a compulsory supervision order requiring a child to reside at a specified place, does not prevent a (Scottish) local authority which is an adoption agency from exercising its powers under the 2007 Act and the Adoption Agencies (Scotland) Regulations 2009, 2009/154, by, for example, placing the child at that place with prospective adopters (as to which see regulations 13–20).
Linkage between the two agencies, the Children's Hearing and the adoption agency, is provided for by sections 131(1) and 132(2)(d) of the 2011 Act which, as supplemented by the provisions of regulation 22, require that the implementation authority:
"must, by notice to the Principal Reporter, require a review of a compulsory supervision order in relation to a child where the authority is satisfied that … the best interests of the child would be served by the authority placing the child for adoption and the authority intends to place the child for adoption."
So far as material, regulation 23, on which Ms Cavanagh places especial reliance, provides as follows:
"(1) This regulation applies where an adoption agency which is a local authority, following a decision under regulation 13(1), is considering making arrangements for adoption in respect of a child who is subject to a supervision requirement.
(2) Where the adoption agency has made a determination to proceed as though parental consent is not forthcoming in accordance with regulation 20 the adoption agency must notify the Principal Reporter of its determination within 7 days from the date it made that determination.
(3) Where –
(a) paragraph (2) applies; and
(b) the adoption agency receives a report from a children's hearing under section 73(13) of the 1995 Act which provides advice in support of the decision of the adoption agency made under regulation 13(1) in relation to the child,
the adoption agency must, within a period of 28 days from the date it receives the report from the children's hearing, make an application for a permanence order …"
I shall return to consider the significance of this below.
The facts
I am concerned with two siblings, both born in Scotland to Scottish parents: A born in 2012 and O born in...
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