Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 14

XA134/16

 

Lord Menzies

Lady Clark of Calton

Lord Glennie

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the appeal from the Sheriff Principal of Grampian, Highlands and Islands

 

by

LO

Appellant;

in the petition for adoption under the Adoption and Children (Scotland) Act 2007

by

N and C

Respondents:

Appellant:  Aitken;  Balfour + Manson LLP (for Civil Legal Assistance Office)

Respondent:  Malcolm;  Morisons LLP (for Innes & McKay)

 

16 February 2017

Summary
[1]        LO, the appellant, is the mother of the child E born September 2011 and has parental rights and responsibilities in respect of E.  As a result of behavioural problems, offences, and episodes of alcohol abuse by LO, the child E was placed with N and C, the respondents, who have looked after E for most of her life.  N and C were approved as kinship carers of E in August 2013.

[2]        In 2015 N and C raised a petition in the Sheriff Court at Tain seeking adoption of E.  The petition inter alia set out averments relating to section 14 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act);  terms and conditions under section 28(3) of the 2007 Act;  and the dispensation of consent by LO under section 31 of the 2007 Act.  Paragraph 38 of the petition stated:

“38.     The birth mother’s consent should be dispensed with on the grounds that she has parental rights and responsibilities but is unable to satisfactorily discharge those responsibilities or to exercise those rights, and that she is likely to continue to be unable to do so, or that the welfare of the Child otherwise requires her consent to be dispensed with.”

 

Said paragraph contains an implied reference to sections 31(4) and 31(3)(d) of the 2007 Act.  The respondents to the adoption petition were LO and DM.  DM is the natural father of E and does not have parental rights and responsibilities.  He has never been involved in the care of E.  The petition for adoption was opposed by LO on the basis that:

“The child is financially and emotionally safe and secure in the current arrangement.  It is not better for the child that the order be made.  The child’s welfare is safeguarded in terms of the compulsory supervision order.

 

The Respondent is able to satisfactorily discharge her parental responsibilities and exercise her parental rights.

 

If an adoption order is made, the Respondent would wish to seek an order for contact.”

 

DM sought only contact post‑adoption and he was not party to any appeal.

[3]        The sheriff heard evidence on 19 August, 16 September and 14 October 2015 and issued his Judgment on 10 November 2015.  A Joint Minute of Admissions agreed a history of some events, relating to the parties and to E, up to June 2014.  The sheriff made an Adoption Order under section 29 of the Adoption and Children (Scotland) Act 2007 vesting parental rights and responsibilities in respect of E in N and C.  He included in the Adoption Order conditions of contact in terms of section 28(3) in respect of both LO and DM on different terms;  he dispensed with the consent of LO to making an adoption order on the ground that she is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so;  and terminated the Compulsory Supervision Order.

[4]        LO appealed to the sheriff principal both in relation to the making of the Adoption Order and contact.  The sheriff principal allowed the appeal in part in relation to contact but quoad ultra refused the appeal. 

 

The Grounds of Appeal by LO in the Inner House
[5]        The appeal before this court relates only to whether there was error in law in the making of the Adoption Order and whether the Order was lawful.  Contact is no longer in dispute.  There are four grounds of appeal which in summary state:

1.         The sheriff, and, in turn, the sheriff principal erred in law in respect of the decision to dispense with the consent of LO to adoption under section 31(3)(c) read with section 31(4) of the 2007 Act.  They erred in the interpretation and application of the relevant test.  The test does not involve an assessment of the welfare of the child or what orders should be made in the interests of the child.  The factors relied upon by the sheriff and, in turn, by the sheriff principal in determining that the test was met are not properly concerned with an assessment of parental capacity to satisfactorily discharge parental responsibilities and exercise rights now and in the future.  There are no findings in fact or matters addressed in the sheriff’s narrative which properly allow for a conclusion that LO was, and shall continue to be, incapable in the way envisaged in section 31(4).

2.         The sheriff erred in law in his approach to the structure of the 2007 Act.  The error resulted in the sheriff determining that the order should be granted before he had considered whether the facts of the case, as considered in light of the statutory tests, allowed him to make the order.  The sheriff principal erred in finding that this error by the sheriff did not vitiate the sheriff’s decision.

3.         The sheriff failed to apply the high test required when considering whether adoption, and nothing less than adoption, was proportionate and necessary in the manner explained in S v L, 2013 SC (UKSC) 20 and Fife Council, Petitioners, [2015] CSIH 74 at [59] to [67].  The sheriff principal erred in concluding that the sheriff’s reasoning was sufficient and that adoption was properly established to be necessary in the way explained.

4.         The sheriff’s decision to grant adoption and the sheriff principal’s decision to refuse the appeal against that decision are incompatible with the rights of LO as protected by Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 (“the ECHR”) as explained, inter alia, by the Supreme Court in S v L and Re B (A Child) (Care Proceedings:  Threshold Criteria), [2013] 1 WLR 1911.  As such, the said decisions are unlawful;  Human Rights Act 1998, section 6.

 

Submissions by Counsel
[6]        Counsel for the parties both provided detailed written submissions which we commend for their clarity and focus.  As a result this court was able to identify issues of concern to the court and invited oral submissions on specific issues.  The main issues included the nature and meaning of the “incapacity” test under section 31(4) of the 2007 Act;  the effect of the Children (Scotland) Act 1995 (the 1995 Act) and in particular the availability of Residence Orders in terms of section 11;  and the implications both legal and practical of the various possible disposals of the appeal.

 

Submissions on behalf of LO, the birth mother
[7]        Counsel invited the court to recall the interlocutor of the sheriff dated 10 November 2015 and of the sheriff principal dated 13 May 2016 and to dismiss the petition.  This was his primary submission but in the event that this court decided to remit the case, he invited a remittal to a different sheriff.

[8]        The main submissions of counsel related to the importance of the structure of the 2007 Act in particular sections 31, 14(3) and 28(2).  The sheriff in this case purported to rely on section 31(4) but that test does not involve an assessment of the general welfare of the child or the appropriateness of adoption.  If the test in section 31(4) is not established, no Adoption Order can be made.  An example of how properly to apply the section 31(4) test is S, Petitioner [2014] CSIH 42 where the test is referred to as the “incapacity” test.  An order for adoption is not a balancing exercise, it is an order of last resort which must be human rights compliant.  Reference was made to S v L;  In Re B (A Child) (Care Proceedings: Threshold Criteria) and Fife Council, Petitioners.  The findings in fact made by the sheriff are wholly inadequate to justify a conclusion that section 31(4) is satisfied and in any event the sheriff was not entitled to conclude in finding in fact 10 that LO is unlikely to be able to parent E safely were E to be returned to her or to make finding in fact 13.

[9]        Counsel submitted that even if the sheriff had been entitled to conclude that section 31(4) was established, the sheriff required to consider the essential welfare considerations set out in section 14 and thereafter to consider the terms of section 28(2) which acts as a limitation on the granting of any Adoption Order.  Section 28(2) of the 2007 Act states:

“The court must not make an Adoption Order unless it considers that it would be better for the child that the order be made than not.”

 

Under reference to S v L, counsel emphasised the importance of the statutory provisions which, when properly applied, ensured an ECHR compliant necessity test.  A court should adopt the “least interventionist” approach as exemplified in X v Y 2015 Fam. L.R. 41 where the sheriff refused to grant adoption despite the child being happy and settled and wishing to be adopted and the child having no ongoing contact with the respondent birth mother.  In that case, the sheriff concluded that the more proportionate order was a Residence Order with parental responsibilities and rights and concluded that in those circumstances adoption could not be granted.  Counsel emphasised that in the present case, E was in a kinship placement which LO supported;  E knew LO as her mother;  there was ongoing contact and E had natural half siblings with whom E had contact as a result of her contact with LO.  There is nothing in the decision making of the sheriff or sheriff principal which addressed these issues.  The proper approach in this case was that followed in Fife Council, Petitioners 2016 SC 169.

[10]      Although the sheriff principal recognised the inadequacies in the Judgment of the sheriff, he also fell into error in that he failed to appreciate that the appeal did challenge the inferential conclusions and the findings in fact made by the sheriff.  There was a specific challenge to part of finding in fact 10 (the last sentence) and finding in fact 13.  This is not a case in which an appellant made no challenge to the findings in fact.  The findings in fact by the sheriff were inadequate, there was no reasoned analysis and the sheriff failed to understand and apply the relevant statutory provisions.  The sheriff principal accepted these criticisms as well‑founded.  His attempts to “save” the decision were in error.  In any event the sheriff principal also, in paragraphs 9 and 10 of his Judgment, confused the considerations which might be relevant to section 31(4) with welfare considerations which were not relevant at the stage of considering the “incapacity” test set out in section 31(4).

 

Submissions on behalf of N and C, the prospective adoptive parents
[11]      The primary motion of counsel was to invite the court to refuse the appeal and uphold the interlocutor of the sheriff principal of 13 May 2016.  If the court was minded to grant the appeal, the subsidiary motion was to invite the court to reconsider the matter itself or remit to a sheriff to reconsider and make appropriate findings in fact and law.  Counsel submitted that if there was to be a remit, a different sheriff should be appointed.

[12]      Counsel accepted that this court requires to be satisfied that there were sufficient facts found established by the sheriff to allow the court to conclude that the test in section 31(4) is met under reference to S, Petitioner.  She drew attention to the definition of parental responsibilities and rights in sections 1 and 2 of the 1995 Act.  The assessment by the court requires to be a broad assessment not limited merely to the parents’ practical parenting skills as illustrated in M v R [2012] CSOH 186;  Re P (Infants) [1962] 3 All ER 789 at 794 and S, Petitioner.

[13]      The sheriff made finding in fact 10 to this effect: 

There is no prospect of E returning to live with and be cared for by LO in the foreseeable future.  This is not an outcome sought by LO.  She considers that N and C are doing a good job of parenting E and is happy that that continues.  She does not wish E returned to her care.  She is unlikely to be able to parent E safely were E to be returned to her.

 

Counsel submitted that even leaving aside the last sentence of finding in fact 10 which is challenged, the starting point for consideration of section 31(4) is the unchallenged finding that LO does not wish to play a part in the day to day care of E or nurture E and does not wish E returned to her care.  Counsel submitted that the sheriff clearly had in mind the terms of the Joint Minute which identified a history of concerns about the ability of LO to discharge her parental rights and responsibilities and her inability to prioritise the needs of E.  The sheriff also identified in paragraphs 5, 6 and 10 and in his Note at paragraphs 7, 9 and 10, the reasons for the conclusion he reached that the test in section 31(4) had been met.  That reasoning is supported by the sheriff principal who takes from the sheriff’s Note factors numbered 1, 2, 3 and 7 which allows the issue to be answered positively.  The sheriff was entitled, for the reasons explained in paragraph 9 of his Note, to conclude that section 31(4) was met particularly against the background of known difficulties which had prevented LO from caring for E in the past.  On the basis that the test in section 31(4) should be read broadly, there was more than sufficient material to allow the sheriff and the sheriff principal to conclude that the test had been met and that there was established a ground upon which to dispense with parental consent.

[14]      Counsel did not dispute that the need to dispense with parental consent was a condition precedent to this order for adoption.  She submitted however that the failure by the sheriff to set out in any logical order the matters he considered, did not amount to an error of law and that the sheriff principal was justified in finding that the sheriff’s approach did not vitiate his decision.  The sheriff principal was correct to approach the matter in the way in which he did.

[15]      Counsel sought to persuade the court that the requirement identified in Fife Council, Petitioners to identify evidence addressing all the options which were realistically possible;  an analysis of the arguments for and against each option;  and an adequately reasoned Judgment were met by the sheriff.  She accepted that these considerations were not set out ad longum in the sheriff’s Judgment but submitted that the sheriff set out reasons for coming to the conclusion in favour of adoption having considered a great deal of evidence about the matter.  Properly interpreted, it is possible to conclude that the approach recommended in Fife Council, Petitioners was followed by the sheriff.  Counsel did accept that “the sheriff’s Judgment is not helpful in the manner in which it has been presented” but submitted that one can extrapolate from it the reasoning which allowed the sheriff properly to reach his conclusions.

 

The Judgment of the Sheriff Principal
[16]      The sheriff principal was presented with submissions which we understand are very similar to the submissions presented to this court by counsel for the parties.  In analysing the decision making of the sheriff, the sheriff principal stated in paragraph 1 of his Judgment that:

“.. in reaching a decision the sheriff should proceed down a well‑trodden path in setting out in the Judgment all the relevant findings in fact and, where facts are in dispute, summarising the relevant evidence and explaining the reasons for accepting some evidence and rejecting other evidence.  The sheriff should then set out the relevant law, apply that law to the findings in fact and set out a reasoned conclusion of the appropriate findings in fact and law.  In this case, the sheriff unfortunately strayed from that path. ..”

 

The sheriff principal noted that few findings in fact were made, that it is unclear to what extent the sheriff relied on the Joint Minute or affidavits and there was a general failure to narrate in any detail the evidence apart from mentioning the names of some of the witnesses and commenting in very general terms about credibility and reliability

In paragraph 4 the sheriff principal stated:

“The sheriff goes on to set out ad longum what he considers to be the applicable law, namely sections 28, 29 and 31 of the 2007 Act.  He makes no mention of section 14 of that Act.  He does not discuss the relevant case law although later on in the Judgment he cites two cases, albeit in the briefest of terms”

 

Having noted the approach adopted by the sheriff, the sheriff principal stated in paragraph 7:

“As was accepted by counsel for both parties, the sheriff appears to be confused in his approach to the legislation.  In particular, he did not begin with the incapacity test in section 31(4).  He did not mention section 14 at all.  Moreover there are indications that he thought that the welfare test in section 31(3)(d) was connected to the test in section 31(4).”

 

[17]      Having accepted deficiencies in the approach by the sheriff, the sheriff principal tried to salvage the approach adopted by the sheriff.  In approaching the matter in this way, the sheriff principal relied on S, Petitioner, at paragraph 29.  In paragraph 9 the sheriff principal identified the findings in fact of the sheriff which he considered justified the sheriff’s conclusion in respect of the section 31(4) ground for dispensing with the consent of LO.  The sheriff principal concluded that inferences from the sheriff’s findings in fact and his note as to the facts supported the sheriff’s conclusion.  The sheriff principal in paragraph 10 concluded that it is “tolerably clear” that the sheriff reached a reasoned conclusion that the section 31(4) test in the 2007 Act was met despite:

“… all the problems with the sheriff’s judgment, not least the lack of structure, a failure to understand how and in what order the legislation should be applied, a limited number of findings in fact and little or no discussion of the evidence …”

 

The “facts” which the sheriff principal identified as supporting the conclusion are as follows:

“1.       The appellant does not wish E returned to her care;

2.       The appellant has exhibited parenting deficiencies;

3.       E has been cared for by the respondents since November 2012 and there is a close loving bond between them.  They provide her with a safe, secure and loving environment to grow up in;

4.       If a residence order were to be granted E would be left in a legal limbo where further litigation would be possible;

5.       Adoption can add a layer of certainty to a child’s residence and a sense of belonging cannot be underestimated:

6.       Adoption would put E on an equal footing with the respondents’ children, and

7.       In any event, the fact that the appellant is able now to care for her son does not automatically mean that she would be able to care properly for E.”

 

 

Decision and Reasons
[18]      We are of the opinion that the decision in relation to adoption by the sheriff principal cannot be allowed to stand as both the decision of the sheriff and sheriff principal were plainly wrong.  The sheriff principal recognised that the sheriff failed in his role as fact finder, was confused about the application of the law, omitted any reference to section 14 of the 1970 Act and gave inadequate reasons.  We accept that the sheriff principal was entitled to reach these conclusions.  But we consider that the sheriff principal fell into error in concluding that it is “tolerably clear” that the sheriff reached the conclusion that “the test had been met”.  The test referred to by the sheriff principal is a reference back to the test which he considered in paragraph 9, namely section 31(4) of the 2007 Act.  In our opinion the sheriff principal has confused the findings in fact which might bear upon section 31(4) of the 2007 Act with findings in fact about general welfare considerations.  Points 3, 4, 5, and 6 identified by the sheriff principal in paragraph 9 of his Judgment do not bear on the issue of whether LO is unable satisfactorily to discharge parental responsibilities or exercise parental rights and is likely to continue to be unable to do so.  In relation to point 1, the sheriff has not made any finding as to why LO does not wish E returned to her care.  This is a kinship case in which there appears to be no dispute that E is happy and well cared for by N and C and has been for most of her life.  LO has maintained regular contact and her position is that she does not wish to disturb the care of E by N and C in the best interests of said child.  In relation to point 7, we note that whatever the past parenting deficiencies of LO, it is plain, even from the limited findings in fact of the sheriff, that LO has overcome difficulties and is able now to provide parenting to a child, the half brother of E.  The sheriff made no findings in fact from which point 7 can be inferred.  In addition, contrary to what is stated by the sheriff principal, it appears from the written material made available to the sheriff principal and confirmed by counsel for LO, that there was (and remains) a direct challenge to part of finding in fact 10 and to the lack of foundation in the findings in fact to entitle the sheriff to conclude that the “incapacity” test in section 31(4) of the 2007 Act, as properly interpreted, was met.

[19]      In adoption proceedings it is very important to recognise, understand and give effect to the structure of the legislation relating to adoption in the 2007 Act.  This has been analysed in a number of cases such as S v L in which Lord Reed set out in detail the relevant legislation;  its history;  and the interpretation and application of section 31 in the context of other relevant provisions in the 2007 Act.  He also considered how the 2007 Act was intended to operate in the context of the Convention Rights incorporated within UK law by the Human Rights Act 1998.

[20]      Certain principles which are relevant to the present case can be determined without difficulty.  Section 31 is a core provision relating to parental consent to adoption and an Adoption Order may not be made unless certain conditions specified in section 31 are met.  The grounds on which the consent of the parents or guardians to the making of the Adoption Order may be dispensed with by a court are set out in section 31(3) which states:

“(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 these subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.”

 

Section 31(4), which is the section relied on by the sheriff and sheriff principal, is relevant where the parent LO (as in this case) has parental responsibilities or parental rights as specified in the Children (Scotland) Act 1995.  Section 31(4) states:

“… (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.”

 

In paragraph 29 of S v L, Lord Reed compares and contrasts section 31(4) with section 31(3)(d) which can be considered by the court only as an alternative to section 31(4) or 31(5), if one of these grounds is not established.  Section 31(4) is concerned with an assessment of whether a parent is unable to discharge parental responsibilities or exercise parental rights including whether they will continue to be unable to do so and does not include general welfare considerations.  Such welfare considerations will require to be considered if the court concludes that section 31(4) does not apply and, as an alternative, considers whether section 31(3)(d) is established as a ground to dispense with consent of the parent.  That was not the approach taken by the sheriff in the present case.  In the present case where the sheriff concluded that the grounds set out in section 31(4) were made out, he was required to consider section 14(1) and the specific matters listed in section 14(4) so far as reasonably practicable.  Further section 28(2) of the 2007 Act restricts the court from making an Adoption Order unless it considers that it would be better for the child that the Order be made than not.  As Lord Reed makes clear in paragraph 34:

“legislation authorising the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity.”

 

[21]      In the present case, we understand from counsel for LO that submissions were made to the sheriff to the effect that drastic intervention by granting adoption was not necessary as LO did not seek to disturb the stable home of E.  Less drastic intervention which would preserve the stability of the child and give parental rights and responsibilities also to N and C could be achieved by a Residence Order invoking the provisions in section 11 of the 1995 Act.  This provision gives wide powers to the court to regulate inter alia parental responsibilities and rights and residence.  We consider that section 11(1) is framed in terms sufficiently broad to give the court power in adoption proceedings to make such an order under section 11 of the 1995 Act or such an order could be made in separate proceedings raised for that purpose.  We are unpersuaded that the sheriff made any reasoned assessment of whether there were any alternatives, short of adoption, which would secure the welfare of E in all the circumstances of this case which include a stable kinship placement which we understand LO does not seek to disturb.  There is passing reference to this in paragraph 12 of the Judgment of the sheriff where the sheriff says he is “unclear what, if anything” a Residence Order achieves ”except leaving E in a legal limbo”.  The sheriff does not appear to consider that, for example, section 11(12) provides that where a Residence Order is made, the person with whom the child lives under said Order shall have relevant parental rights and responsibilities.  The sheriff also does not deal with the issue that contact appears to be the main potential area of dispute in the case of E and that potential legal dispute will not disappear merely because an Adoption Order is granted.  The sheriff has no findings in fact and no reasoning to explain what legal limbo is of concern to him and why an Adoption Order rather than some other legal solution is required for the welfare of E.

[22]      We note that ground 4 of the appeal is framed under reference to Article 8 of the ECHR.  We are satisfied however that the domestic legislation, if properly applied, should not result in a decision involving any incompatibility with Article 8.  In the circumstances of this case, we do not consider that ground 4 of the appeal adds any force to the appeal grounds focussed in grounds 1 to 3.

[23]      For the reasons given therefore we are satisfied that the appeal should be granted.

 

Disposal
[24]      In the absence of any notes of evidence and any comprehensive findings in fact, this court is not in a position to consider examining the merits and substituting its own decision applying the law correctly.  Parties are agreed that if the case is remitted back to the sheriff, it should be heard by a new sheriff.  We consider that there might be some saving in expense in such a course compared with the raising of new proceedings but we note that counsel for N and C advised that the prospective adoptive parents wish to consider how best to proceed.  Counsel for LO advised that if N and C brought proceedings under section 11 of the 1995 Act seeking a Residence Order and parental rights and responsibilities in their favour, LO would not object with her preserved parental rights and responsibilities.  LO would continue to support the placement of E with N and C as she considered that best served the welfare of E. 

[25]      This court has considerable sympathy with the position of all the parties in this case and recognises that none of the parties bear responsibility for the unfortunate outcome which includes delay, uncertainty and expense.  These proceedings commenced in 2015 and we understand that the appeal to this court was further held up by some months because of delay in dealing with expenses following the appeal to the sheriff principal.  We understand that circumstances have changed not least in that LO now cares for another child, a second half brother to E.  We take into account all these matters in coming to our decision.  We consider that there is a possibility that parties in this case may be able to reach agreement about what solution would best serve the welfare of E but, even if that is not possible, we are of the opinion that parties should have time to decide what form of court proceedings they wish to pursue.  Submitting this case now to a new sheriff to hear evidence in the adoption process may not allow N and C to consider fully all options available to them including perhaps a solution, even an interim solution, following short of adoption.

 

Disposal
[26]      We are of the opinion that the appeal by LO in relation to the Adoption Order should be allowed.  For the avoidance of doubt we wish to make it clear that we express no views about the merits of the adoption petition.  For the reasons given, we refuse the petition and direct that section 33 of the 2007 Act shall not apply (accordingly refusal of the petition does not prevent a new application for adoption);  recall the Adoption Order made by the sheriff in respect of E under section 29 of the 2007 Act;  and recall the order by the sheriff terminating the Compulsory Supervision Order in terms of section 36 of the 2007 Act.