Refernce From Dumbarton Sheriff Court In Respect Of A Devolution Issue That Has Arisen In Adoption Proceedings (as/ml)
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lady Paton,Lord President |
| Neutral Citation | [2011] CSIH 38 |
| Year | 2011 |
| Published date | 21 June 2011 |
| Date | 21 June 2011 |
| Court | Court of Session |
| Docket Number | XA8/11 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lady Paton Lord Kingarth | [2011] CSIH 38 XA8/11 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Reference from the Sheriff Court at Dumbarton in the Petition of ANS and DCS Petitioners; against ML Respondent: _______ |
Alt: Clarke; Drummond Miller LLP (for the Respondent and Minuter)
For the Lord Advocate: Duncan; Scottish Government Legal Directorate
21 June 2011
The proceedings
[1] The respondent is the biological mother of DL, a child presently four years of age. The petitioners have presented to the sheriff at Dumbarton a petition seeking an adoption order in their favour in respect of DL. That petition is opposed by the respondent, who has refused to give her consent to DL's adoption.
[2] In the course of these proceedings a devolution issue has arisen upon which the sheriff seeks a ruling by the Inner House of the Court of Session. In the reference made by him he poses the following question:
"... whether section 31(3)(d) of the Adoption (Scotland) Act 2007 is compliant with the respondent's and the child's right to respect for family life in terms of art 8 of the ECHR and therefore whether compatible with Convention rights and community law in terms of section 29(2)(d) of the Scotland Act 1998".
The respondent maintains that that statutory provision was beyond the competence of the Scottish Parliament and is accordingly "not law". The Lord Advocate has entered the process to support the lawfulness of the provision in question.
The relevant statutory provisions
[3] The Adoption and Children (Scotland) Act 2007 represents, in some respects at least, a radical departure from the previous statutory regime for the adoption of children in Scotland - that contained in the Adoption (Scotland) Act 1978 (as amended). Section 16 of the latter Act provided:
"(1) An adoption order shall not be made unless ...
(b) in the case of each parent or guardian of the child the court is satisfied that
...
(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2).
(2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian -
(a) cannot be found or is incapable of giving agreement;
(b) is withholding his agreement unreasonably;
(c) has persistently failed without reasonable cause to discharge the parental duties in relation to the child;
(d) has abandoned or neglected the child;
(e) has persistently ill-treated the child;
(f) has seriously ill-treated the child (subject to subsection (5));
...
(5) Subsection (2)(f) does not apply unless (because of the ill-treatment or for other reasons) the rehabilitation of the child within the household of the parent or guardian is unlikely."
As can be seen from grounds (b) to (f) inclusive, the grounds which had to be made out if a parent or guardian's agreement to the making of the order was to be dispensed with focussed heavily on the conduct of that parent or guardian.
[4] By contrast, the equivalent provisions in the 2007 Act (section 31(1) - (5)) are, in so far as material, in the following terms:
"(1) An adoption order may not be made unless one of the five conditions is met.
(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied -
...
(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).
(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.
(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.
(6) In subsection (5)(a), 'relevant order' means a permanence order which does not include provision granting authority for the child to whom the order relates to be adopted."
A "permanence order" is, by section 80, an order made by an appropriate court in respect of a child containing certain provisions, which may include provisions extinguishing responsibilities or rights previously vested in a parent or guardian of the child (section 82(1)(c) and (d)).
[5] Section 31 has to be read along with other relevant provisions in the 2007 Act. These include sections 14 and 28 which, in so far as material, are in the following terms:
"14(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.
...".
"28(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 may be made than not.
(3) An adoption order may contain such terms and conditions as the court thinks fit.
...".
[6] The Children (Scotland) Act 1995 (as amended) provides:
Section 1(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):
"... 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."
Article 8
[7] Article 8 of the Convention on Human Rights and Fundamental Freedoms provides:
"(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."
Submission for the respondent
[8] Miss Clarke on behalf of the respondent submitted that section 31(3)(d) of the 2007 Act was not "in accordance with the law" nor "necessary in a democratic society" for any of the listed purposes. The reference in that subsection to "welfare" was vague, irrational and impermissibly speculative. It was not in accordance with international law, against which the rights in article 8 had to be measured. Section 31(3)(d) applied only where neither subsection (4) nor (5) applied. Thus, for example, where subsection 31(4) did not apply - because the parent with parental responsibilities and parental rights in relation to the child (other than a responsibility or right in respect of contact) had not been shown to be unable satisfactorily to discharge those responsibilities or exercise those rights and to be likely to continue to be unable to do so - that parent was at risk of his or her child being adopted notwithstanding that consent had not been given. In other words a (perfectly) capable parent was liable to have his or her child adopted by the application of a "welfare" test. The two provisions were essentially inconsistent with each other. It was important to recognise that an adoption order would (or at least might) sever completely the connection between the child and his or her biological parent. An adoption order made against the will of the parent was the highest form of coercive action by the state. Article 8 rights in relation to a child had to be seen against international conventions, including the United Nations Convention on the Rights of the Child of November 20th 1989 (Pini and...
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