Adoption and permanence order: whether parental consent should be dispensed with and permanence order with authority for adoption granted; contact.

Plumtree, Alexandra

East Lothian Council, Petitioners, in respect of LSK

Court of Session, Edinburgh Inner House, Extra Division: Lords Reed and Clarke and Lady Smith

17 January 2012, [2012] CSIH 3

The child LSK was born in 2008. He had never lived with his parents and was subject to a supervision requirement, initially with foster carers and later with prospective adopters from May 2010. The Petitioners, ELC, applied to the sheriff at Haddington under section 80 of the Adoption and Children (Scotland) Act 2007 for a permanence order with authority for adoption. This was opposed by the parents. On 30 July 2010, after a proof hearing, the sheriff granted a permanence order with authority for adoption, having dispensed with the parents' consent to adoption. The order effectively terminated direct contact, providing for annual written information to be given to the parents with a photograph.

The parents appealed to the Sheriff Principal. Before the proof, the parties had agreed in a Joint Minute that there was no one with the right 'to regulate the child's residence under section 2(1)(a) of the Children (Scotland) Act 1995'. This was legally incorrect, as the super vision requirement only interfered with the parents' right to control residence, it did not remove it. ELC conceded that the agreement on this matter had been wrong and that the sheriff had not form ally decided whether 'it was or was likely to be seriously detrimental' for LSK's welfare to live with his parents. This is the second of two 'grounds' for any permanence order, in section 84(5)(c) of the 2007 Act, and a court must be satisfied that one of them is met before it may grant an order under section 80. As the Joint Minute had agreed the first 'ground', although wrongly, the sheriff's judgment had not addressed whether he was satisfied that the statutory test had been met.

The Sheriff Principal decided that it would not be appropriate to order a completely new hearing of evidence and on 8 March 2011, he sent the case back to the same sheriff for reconsideration, particularly in relation to the 'grounds' in section 84(5)(c). This decision was previously reported in Adoption & Fostering (35:1, 2011, p 83). The Sheriff Principal also ordered the curator ad litem to draw up a supplementary report and he refused the parents' leave to appeal against his decision.

When the sheriff heard the case again, he refused to allow the parents to lead further evidence but he had the supplementary report from the curator ad litem with up-to-date information on the circumstances of the case. The sheriff's decision, dated 6 May 2011, included an additional finding in fact and law that the parents did have the right to have LSK live with them, but that this would be 'likely to be seriously detrimental to [his] welfare' in terms of section 84(5)(c)(ii) of the 2007 Act. Otherwise, the sheriff confirmed his earlier findings, made a permanence order and repeated the original provision for indirect contact. The judgment explained that the sheriff had considered his previous findings about the parents' inability to care properly for LSK, as well as various other matters.

The parents appealed again to the Sheriff Principal, who refused the appeal on 13 July 2011. He amended the provision about contact, requiring the birth parents to provide annual written information and a photograph. This decision was previously reported in Adoption & Fostering (35:3, 2011, pp 71-2). The parents then appealed to the Inner House of the Court of Session.

Held

Appeal refused and the permanence order with authority for adoption upheld. The opinion of the court was given by Lady Smith. The opinion set out the history of the case, the relevant legislation and the submissions of the parties. Contact was also discussed.

For the birth father, it was argued that the 'ground' in section 84(5)(c)(ii) was a high test. The sheriff had not given it full weight at the first proof and was not entitled to have made the extra finding at the second proof. Also, further evidence should have been allowed at the second hearing and the sheriff had been heavily influenced at that hearing by the curator ad litem's report. So far as contact was concerned, termination of direct contact was not justified and the sheriff had given no reasons for doing so. There had been nothing to suggest that contact was 'so harmful to LSK that it required to be terminated'. Authority for adoption should not have been included in the order as the father wanted direct contact after adoption: he would have difficulty in being involved in the adoption application, because it would not automatically be intimated to him. Similar submissions were made for the birth mother.

For ELC, it was submitted that the Sheriff Principal's second decision on 13 July 2011 was correct and that his first decision 'was a reasonable exercise of his discretion and was Convention compliant'. The sheriff had decided matters correctly and nothing at the second proof indicated a decision different from his original findings. There had been no intimation of what further evidence the parents wished to lead. So far as contact was concerned, when the adoption was applied for, an extract of the permanence order would be lodged, so the court would know what had been decided previously. Contact would be facilitated, although the usual practice was to leave matters on a voluntary basis for the adopters to make decisions based on the child's welfare. The birth parents could seek an order in the future under section 11 of the 1995 Act. Their wish to maintain contact after adoption could not interfere with the granting of a permanence order.

In issuing its decision, the appeal court indicated that it was 'entirely understandable' that the sheriff had not considered the test in section 84(5)(c)(ii) at the first proof, given the Joint Minute. However, he had clearly given 'detailed and careful consideration' to the child's welfare needs when deciding whether to grant the permanence order, and whether to dispense with consent to adoption. It was clear from the findings in fact that it was and would be 'seriously detrimental' for the child to live with his parents.

The Sheriff Principal's first decision was within his discretion and open to him. The appeal court was satisfied that the sheriff at the second hearing did properly look at matters again and did not have a closed mind. The sheriff had no reason to doubt the curator ad litem's independence and in any case, the sheriff made his own judgment on the matters before him.

So far as contact was concerned, the test was not the one suggested for the birth father, that there was no evidence that LSK had been harmed. 'The issue was whether ongoing contact would safeguard and promote LSK's welfare.' The appeal court felt that it could be inferred from the judgments of the sheriff and Sheriff Principal that neither considered that the child's welfare 'would be safeguarded and promoted by continuing with direct contact'. The birth parents' interest in future contact was protected by the court rules allowing the sheriff to order intimation of the adoption application if s/he considers that appropriate; and the possibility of making a section 11 application under section 11 of the 1995 Act. The appeal court agreed that a wish for continuing contact could not, of itself, be a bar to making a permanence order.

(1) All cases are available on the Scottish Courts website: www.scotcourts.gov.uk.

Alexandra Plumtree, Legal Consultant at BAAF's Scottish Centre, prepared these notes