The Applicant v The Mother (1st Respondent) The Father (2nd Respondent) The Child (by Her Children's Guardian) (3rd Respondent) The Lord Advocate (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 30 August 2012 |
| Neutral Citation | [2012] EWHC 2404 (Fam) |
| Docket Number | Case No: FD 123/11 |
| Court | Family Division |
| Date | 30 August 2012 |
[2012] EWHC 2404 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD 123/11
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Mr Malcolm Chisholm (instructed by McMillan Williams Solicitors) for the Applicant
Ms Neelim Sultan (instructed by Wainwright & Cummins Solicitors) for the 1 st RespondentThe 2 nd Respondent in Person
Ms Sharon Sawyerr (instructed by Osbornes Solicitors) for the 3 rd Respondent
Mr Steven Kovats QC (instructed by the office of the Advocate General) for the Lord Advocate (as Intervenor)
Hearing dates: 18, 19, 20, 22 June & 25, 26 July 2012
Judgment (Anonymised Version)
This is my judgment on the application by the Applicant ("A") for an adoption order in respect of a child Z who was born on 27 May 2006, and who is therefore 6 years of age.
The application has a traditional feel about it since an adoption application in circumstances like these will nowadays usually, but not invariably, have been preceded by a placement order pursuant to s21 Adoption and Children Act 2002 ("ACA 2002"). In turn, the placement order will almost invariably have been preceded by a full care order. The placement order was the successor to the freeing order which originated in s14 Children Act 1975 and which was replaced by s18 Adoption Act 1976. Prior to this innovation confidential adoption applications were dealt with in the way I have dealt with this case with the applicant participating remotely from the Mechanical Recording Department.
Where an adoption application is made following a placement order the natural parents may not oppose the application without the court's leave (s47(5) ACA 2002), and leave may not be granted unless there has been a change in circumstances since the making of the placement order (s47(7)). Authority has held that this is a stringent test. Experience shows that leave is rarely granted and the great majority of adoption applications made following a placement order are heard in the absence of the natural parents by an abbreviated process.
The reason this application is being heard in the old way with full participation and opposition from the parents is that Z was placed with A on 20 April 2011 following a decision of a Children's Hearing for the City of Glasgow made on 28 March 2011. That decision was preceded and succeeded by a number of other rulings both of the Children's Hearing and the Glasgow Sheriff Court.
M, who is (or rather was until half-way through her final submissions, as I shall later explain) represented by Miss Sultan, and F, who is self-represented, resolutely oppose the application relying principally, but not exclusively, on an argument that the placing of Z with A was not lawful in the sense that the whole legal process in Scotland violated their rights under Articles 6 and 8 of the European Convention on Human Rights, as incorporated into the law of all the constituent parts of the United Kingdom by the Human Rights Act 1998.
In her position statement Ms Sultan stated:
"There have been fundamental breaches of the M's Article 6 and 8 Convention rights in the sequence of events leading to the placement of the child with the Applicants on 20.4.11"
And, among a number of other complaints, she states:
"There has not been a recognisable 'trial' of the issues between the M and the LA culminating in a determination by a court of competent standing and on the basis of evidence obtained and called on behalf of all parties including the M, that the M should be excluded as a carer for Z"
And:
"It is submitted that the weight of the evidence tends to suggest that the 'placement for adoption' was not lawful and not Convention compliant"
On 26 October 2011 District Judge MacGregor ordered that:
"The parties shall have permission to instruct a suitably qualified expert to advise the Court as to the validity of the child's placement by the Local Authority with the Applicant on 20th April 2011, and any other relevant matters concerning the actions of the Local Authority and the proceedings in Scotland insofar as they have any impact on these proceedings."
In consequence, I have received three very full reports from Miss Claire McFadden. She is a solicitor supremely well qualified in Scottish adoption law. I heard her give oral evidence over a full day. When the case started on 18 June 2012 I was concerned at the prospect of being asked to pronounce on the Convention compliance of Scottish legal processes in this field, and on 22 June, when the case was adjourned part-heard, I invited the Lord Advocate to intervene to make submissions either in writing or orally through counsel. He took up the invitation and instructed Mr Steven Kovats QC who supplied a very clear skeleton argument and made concise submissions when the case resumed on 25 July 2012. I am indebted to both Miss McFadden and Mr Kovats QC for explaining so patiently to me the features of the Scottish system.
Child protection law in Scotland
There are both marked differences (as well as marked similarities) between English-Welsh and Scots law in this field, both substantively and procedurally.
The law in Scotland is governed by the Children (Scotland) Act 1995 (a Westminster statute) and the Adoption and Children (Scotland) Act 2007 (an Act of the Scottish Parliament). There is a further Act of the Scottish Parliament which is relevant namely the Children's Hearings (Scotland) Act 2011, but this will not take effect until 2013. It is noteworthy (but not relevant to the decision I have to make) that in the recent case of ANS v ML [2012] UKSC 30 the Supreme Court held that s31(3)(d) of the 2007 Act was compliant with the Convention and was thus within the legislative competence of the Scottish Parliament. s31(3)(d) is the counterpart of, and is almost identical to, s52(1)(b) ACA 2002.
A key feature of the Scottish system is the well-known Children's Hearing, the formation of which is provided for by s39 of the 1995 Act. The genesis of the Children's Hearing is the Report of the Kilbrandon Committee in 1964 the proposals within which were enacted, with some modifications, in the Social Work (Scotland) Act 1968. With some important, but not fundamental, changes the scheme was re-enacted in Part II of the 1995 Act. The defining characteristic of the system is the dichotomy between the role of the Court and the role of the Children's Hearing: this is its "genius", in the words of Lord President Hope (as he then was) in Sloan v B 1991 SLT 530 at 548 E.
The members of the Children's Hearing are lay persons, but they are advised by the Reporter (who may or may not be legally qualified). The Reporter has a dual role: in addition to giving advice he or she formulates the threshold grounds which must be established before the Sheriff before the case can be referred to the Children's Hearing (see para 15 below), and he or she is the Respondent to any appeal from a decision of a Children's Hearing to the Sheriff. In contrast to the position in England and Wales the Local Authority is not a party to any such appeal. One of the objects of the 2011 Act is to separate these roles of the Reporter.
In Principal Reporter v K & Ors (Scotland) [2010] UKSC 56 Lord Hope and Lady Hale in their joint judgment (for the Court) recorded a submission at para 45 that Children's Hearings "are meant to be informal round-table discussions", but, as their reasoning shows, they are much more than that. In her first report at para 2.1 Miss McFadden explained that:
"The Children's Hearing is a statutory and quasi-judicial body, independent of the local authority, responsible for safeguarding the interests of children who are subject to the intervention of the local authority social work department."
True, the hearing is informal; there is no oral evidence let alone cross-examination; and legal aid is rarely available for representation (although there is nothing to stop a lawyer appearing on a privately funded basis or pro bono). But it is a hearing; the members make a decision; and the decision can be appealed to the Sheriff under s51 of the 1995 Act on the familiar grounds of error of law (including Convention law), procedural irregularity, or plain error in the exercise of discretion. And the decisions that are taken may be very far reaching. In Principal Reporter v K at para 40 the Court stated:
"Next, it must be shown that a public authority has interfered with the right to respect for this family life. This too is not in dispute. Any court order which regulates or restricts the "mutual enjoyment of each other's company" which "constitutes a fundamental element of family life" will amount to an interference: see, for example, Johansen v Norway (1997) 23 EHRR 33, para 52; L v Finland, above, para 101. The decision of a children's hearing to impose a supervision requirement empowering a public authority to intervene in the child's life will constitute an interference with the family life of the child and the parent with whom she lives and is likely also to interfere with the family life of the child and her other parent. Manifestly an order that they were not to have contact with one another did so."
In order for a public law case to be referred to a Children's Hearing at least one threshold ground must be established before (i.e. found proved by) the Sheriff. The list of threshold...
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Re A (Adoption)
...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 i......