Tw And Jw V. Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Bonomy,Lord Mackay of Drumadoon |
| Judgment Date | 05 April 2012 |
| Neutral Citation | [2012] CSIH 37 |
| Court | Court of Session |
| Published date | 05 April 2012 |
| Date | 05 April 2012 |
| Docket Number | XA71/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Mackay of Drumadoon Lord Bonomy Lord Philip | [2012] CSIH 37 XA71/11 OPINION OF THE COURT delivered by LORD BONOMY in appeal by (FIRST) TW and (SECOND) JW Appellants; against ABERDEENSHIRE COUNCIL Respondents: _______ |
Bowen; Beveridge & Kellas SSC (for Second Appellant)
Alt: Inglis; Digby Brown
5 April 2012
Background
[1] The appellants are the parents of C (referred to as CW by the sheriff and the sheriff principal) who was born on 5 December 2009. In terms of a child protection order granted that day, the first appellant and C remained together in hospital for twelve days during which they were regularly visited by the second appellant. Following Children's Hearings on 9 and 17 December 2008, C was made subject to a place of safety warrant and placed with foster parents on 19 December 2008.
[2] These steps were taken on account of concern for the safety of the child which had arisen because of the poor standard of care given by the appellants to their two elder children, one of whom had by that time been adopted and the other freed for adoption.
[3] The appellants continued to have daily contact with C. At a Looked After Children Review in terms of The Looked After Children (Scotland) Regulations 2009, Regulation 45, on 20 January 2009 it was recommended that, at the same time as supporting the development of a relationship between C and the appellant, the respondents should consider alternative long-term plans and the possibility of kinship care should be explored amongst family members. The respondents sought to establish, by an assessment process, that the appellants were capable of looking after C. A number of members of the staff of the health and social work departments of the respondents were involved in reviewing and continuously assessing their parenting capacity. At a Children's Hearing on 11 March 2009, C was made subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995 ("1995 Act"), including provision for contact to be fifteen hours per week in the form of three five hour sessions rather than daily for two hours.
[4] A Child Protection Core Group Meeting took place on 30 March 2009 and was attended by the appellants. Areas of concern to the social workers involved included the first appellant finding it difficult to relate to C, her struggle with the fact that the second appellant appeared able to respond more effectively to C, both parents not listening to advice in relation to feeding, preparations not being made in anticipation of C's needs, and the appellants not demonstrating any progress in their knowledge and skills. The appellants were given advice about how to deal with their difficulties and were encouraged to ask support staff for information about C and for clarification where they were unsure about anything.
[5] By April 2009 it was clear that the foster parents with whom C was initially placed did not wish to proceed to adopt her. On 28 April a Joint Child Protection Case Conference and Looked After Child Review took place, with the appellants and the first appellant's mother, Mrs R, in attendance. A number of "permanence options" were considered, including long-term foster care either under section 25 or section 70 of the 1995 Act, a parental rights order, and residential care. None was thought to be in the best interests of C. Kinship care was another possibility, but by that stage no assessment of anyone had been carried out. The recommendation of the joint meeting was that it was in C's best interests to be adopted as this would meet her lifelong needs for stability and security and give her a sense of belonging where she could grow up as part of a family. Mrs R did not put herself forward for kinship care at that meeting, as she felt that C should be with the appellants.
[6] The recommendation for adoption led to a Children's Hearing on 20 May 2009 deciding to gradually reduce contact between the appellants and C, over a period of 9 weeks, to once a month and for that contact to be supervised. Around that time the appellants separated. Thereafter each had contact with C once a month for 45 minutes. At that meeting Mrs R stated that she and her husband now wished to be considered for kinship care. A kinship assessment was undertaken by a social worker between June and October 2009 but was never completed. We consider that further below.
[7] At a meeting of the respondents' Permanence Panel on 3 December 2009, it was recommended in terms of Regulation 6(2)(e) of the Adoptions Agencies (Scotland) Regulations 2009 that a permanence order with authority to adopt in terms of section 80 of the Adoption and Children (Scotland) Act 2007 ("2007 Act") should be sought in respect of C. The respondents ratified the recommendation of the Permanence Panel on 17 December 2009. On 4 March 2010 the Permanence Panel recommended prospective adoptive parents and the respondents ratified that on 9 March 2010.
[8] The respondents then presented a petition to the sheriff at Banff, applying for a permanence order with authority to adopt under section 80 of the 2007 Act. Following a hearing lasting 11 days, the sheriff refused the application for a permanence order with the result that no separate question of authority to adopt arose. The sheriff heard final submissions on 6 December 2010 and on the same day delivered his judgment orally.
[9] The respondents appealed to the sheriff principal who heard the appeal on 12 and 13 May 2011. On 2 June the sheriff principal allowed the appeal, recalled the interlocutor of the sheriff of 6 December 2010, made a permanence order in respect of C including ancillary provisions relating to the vesting and extinction of parental rights and responsibilities, granted authority for C to be adopted, dispensed with the consent of the appellants to the making of an adoption order, ordered that contact between C and the appellants should cease forthwith and ordered that the supervision requirement of the Children's Hearing should cease to have effect. Against that decision the appellants have appealed to this court.
Outline of Submissions
[10] Mrs Scott for the first appellant made detailed oral submissions expanding upon her written note of argument. These submissions were adopted by Mr Bowen for the second appellant and supplemented by his own note of argument. The cases presented by both appellants are effectively identical. The sheriff principal found that the sheriff had erred in three respects: firstly, he had misconstrued section 84 of the 2007 Act and as a result had failed to address the question posed by section 84(5)(c)(ii); secondly, he had erred in his interpretation of section 83(3)(b) and (c); and thirdly, he had made a decision which was plainly wrong. The appellants submitted that it was the sheriff principal who had erred in each of these three respects. In their contention the sheriff had given proper effect to both statutory provisions and had made a sound judgment on the basis of the material before him, taking advantage of the benefit he alone had had of hearing and observing the witnesses. In reply, Mr Inglis for the respondents, maintained that in each of the three respects the sheriff principal did not err. In particular, this was a case where he was entitled to conclude that the sheriff was "plainly wrong". All counsel founded on the speeches in A v B and C 1971 SC (HL) 129, particularly that of Lord Reid at page 141.
Relevant Statutory Provisions
[11] Sections 80, 81 and 82 of the 2007 Act provide that a court may make a permanence order in respect of a child and provide for the vesting of certain parental responsibilities and rights in the local authority and other persons, generally those with whom the child will reside, and for the extinguishing of existing parental responsibilities and rights. "Parental responsibilities" and "parental rights" have the meanings given by sections 1(3) and 2(4) of the 1995 Act. Section 84 of the 2007 Act sets out the conditions and considerations applicable to the making of a permanence order, and section 83 sets out the conditions which must be met before the order may include authority for the child to be adopted. The issues of law which arise in this case concern parts of sections 83 and 84 which, along with section 80 so far as relevant, are as follows:
"Permanence Orders
80. -(1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.
(2) A permanence order is an order consisting of -
(a) the mandatory provision,
(b) such of the ancillary provisions as the court thinks fit, and
(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.
(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.
Order granting authority for adoption: conditions
83.-(1) The conditions referred to in section 80(2)(c) are -
.......
(c) that, in the case of each parent and guardian of the child, the court is satisfied-
(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or
(ii) that the parent's or guardian's consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),
(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.
(2) Those grounds are-
.......
(c) that subsection (3) or (4) applies,
.......
(3) This subsection applies if the parent or guardian-
(a) has parental responsibilities or parental rights in relation to the child other...
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