Re EV (A Child)
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lady Hale,Lord Kerr,Lord Wilson,Lord Hodge |
| Judgment Date | 01 March 2017 |
| Neutral Citation | [2017] UKSC 15 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 4 |
| Date | 01 March 2017 |
[2017] UKSC 15
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hodge
Appellant (KV (Father))
Janys M Scott QC
Julian Aitken
(Instructed by KW Law)
Respondent
Catherine Dowdalls QC
Mary V Loudon
(Instructed by West Lothian Council Legal Services)
Appellant (MB (Mother))
Kenneth Campbell QC
Julianna Cartwright
(Instructed by Aitkens, The Family Law Solicitors)
Heard on 12 January 2017
(with whom Lady Hale, Lord Kerr, Lord WilsonandLord Hodgeagree)
These appeals arise out of an application for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act"), with authority to adopt, brought by West Lothian Council ("the local authority") in December 2014. The application relates to a child, "EV", who was born on 30 December 2013, and has been in care since her birth. It is opposed by the child's parents, to whom I shall refer as the mother and father. The application was granted by the Lord Ordinary on 31 March 2016, following a preliminary proof of one day and a further proof of eight days. His decision was upheld by the Second Division, other than in relation to the grant of authority to adopt and a related prohibition on contact by the parents, on 20 July 2016. Permission to appeal to this court was granted to each of the parents by an Extra Division on 14 October 2016.
The Extra Division identified a single issue which satisfied the criterion in section 40A of the Court of Session Act 1988 for the grant of permission to appeal, namely an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time. That issue was whether the guidance given in the case of In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 1 AC 680 is applicable in Scotland, where different legislation applies. The grant of permission was not, however, restricted to that issue, since it was closely interconnected with the other grounds of appeal.
In the event, at the hearing of the appeals, there was no issue between the parties in relation to In re J. They agree that the decision of the majority in that case, encapsulated in Lord Hope's "golden rule" (to which I shall return), applies equally to the legislation with which these appeals are concerned. The point which prompted the grant of permission to appeal does not, therefore, require to be decided. It is nevertheless appropriate, given the uncertainty implicit in the grant of permission, to make some observations about the issue. I shall do so at a later point.
Neither the Lord Ordinary nor the Second Division followed the approach laid down in In re J. The first question which arises is whether their decisions can nevertheless be supported. If not, the second question is whether the case should be remitted to the Inner House for it to determine the application on the basis of the evidence led before the Lord Ordinary and such further evidence as may be appropriate, or whether the application should simply be refused.
The legislation governing the making of a permanence order is contained in sections 80 to 84 of the 2007 Act. Section 80 permits the granting of a permanence order, defined as an order consisting of the mandatory provision specified in section 81, such of the ancillary provisions specified in section 82 as the court thinks fit, and, if the conditions in section 83 are met, provision granting authority for the child to be adopted. The mandatory provision is a provision vesting in the local authority the parental right to have the child living with them or otherwise to regulate the child's residence, and the parental responsibility to provide guidance to the child. The ancillary provisions are provisions vesting other parental rights and responsibilities in the local authority or in another person, and extinguishing parental rights and responsibilities previously vested in a parent or guardian of the child. The parental right in respect of the child's residence which was previously vested in a parent or guardian is automatically extinguished: section 87.
In relation to section 80, it is important to note section 80(3):
"In making a permanence order in respect of a child, the appropriate court must secure that each parental responsibility and parental right in respect of the child vests in a person."
Parental responsibilities and parental rights include the responsibility and the right, respectively, "if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis": Children (Scotland) Act 1995, sections 1(1)(c) and 2(1)(c). If, therefore, the court makes a permanence order, it must ensure that there is someone who has the responsibility and right to maintain personal relations and direct contact with the child. That person must be someone other than the local authority: section 82(1)(a) and (b).
The conditions laid down in section 83 for the granting of authority for adoption lay down crucial tests, which were discussed in the case of R v Stirling Council [2016] CSIH 36; 2016 SLT 689, paras 16–18. They include a requirement that the court must be satisfied that the child has been, or is likely to be, placed for adoption.
Section 84 sets out the conditions and considerations applicable to the making of a permanence order. In relation to these, section 84(1), read with section 84(2), enables the court to make a permanence order without the consent of the child where the child is aged under 12, as was the position in this case.
Section 84(3) to (5) is in the following terms:
"(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 [Children (Scotland) Act 1995] 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."
These three subsections are of a different character from one another, and are to be applied in different ways. Section 84(5) is particularly complex. Subsections (a) and (b)(i) impose duties in respect of ascertaining and considering the views of the child, so far as is reasonably practicable. In the present case, given the very young age of the child, those duties did not arise. Subsection (b)(ii) and (iii) impose duties to have regard to specified factors. In the present case, two of the factors mentioned in subsection (b)(ii) are relevant, namely the child's racial origin and cultural and linguistic background.
Section 84(5)(c) is of a different nature. It lays down a factual test in each of subsections (c)(i) and (ii). One or other of those tests must be satisfied before a permanence order can be made. Section 84(5)(c) therefore imposes a threshold test. It has to be addressed, and satisfied, before any issue requires to be considered under the other provisions of section 84. In the present case, it was paragraph (c)(ii) which was relevant, since both parents had the right mentioned in paragraph (c)(i). It was therefore necessary, before a permanence order could be made, for the court to be satisfied, in relation to each of the parents, that the child's residence with that person was likely to be seriously detrimental to her welfare.
Section 84(3) arises only if the test in section 84(5)(c) is met. It imposes a prohibition on the making of a permanence order unless a specified requirement is met, namely that it would be better for the child that the order be made than that it should not be made.
Section 84(4) applies when the court is "considering whether to make a permanence order and, if so, what provision the order should make". It has no bearing on the test imposed by section 84(5)(c), since (1) that is a factual test which cannot be affected by treating the child's welfare as the paramount consideration, and (2) the test must be satisfied before the court reaches the stage of considering whether to make a permanence order. Once that stage is reached, however, section 84(4) is plainly important.
In TW v Aberdeenshire Council [2012] CSIH 37; 2013 SC 108, the Extra Division correctly rejected an argument that sections 84(3) and (4) had a particular core status. It said that subsections (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be made. Lord Bonomy, giving the opinion of the court, stated at para 13:
"It is … difficult to envisage circumstances in which a court, faced with an...
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