Adoption and permanence order: whether parental consent should be dispensed with and permanence order with authority for adoption granted; contact.
Plumtree, Alexandra
TW and JW v Aberdeenshire Council Court of Session, Edinburgh Inner
House, Extra Division: Lords Mackay of Drumadoon, Bonomy and Philip 5
April 2012, [2012] CSIH 37
Note: This is the Inner House's decision in the appeal from
the Sheriff Principal in the case Aberdeenshire Council v TW and JW,
previously reported in Adoption & Fostering (35:2, 2011, p 81).
TW and JW were the mother and father of CW, who was three years and
two months when the appeal court decision was made. Both parents were
adopted, as were their first and second children. When CW was born, a
child protection order was granted and she became the subject of a
supervision requirement in the children's hearing system. She
remained in foster care until she was placed with prospective adopters
at the age of 16 months. The parents were allowed supervised contact,
which had reduced to once a month by the end of 2010.
Aberdeenshire Council applied for a permanence order with authority
for adoption (POA) under section 80 of the Adoption and Children
(Scotland) Act 2007. In December 2010, the sheriff refused the order and
then issued his written judgment on 28 January 2011.
The Council's appeal to the Sheriff Principal was upheld. He
took the view that the sheriff had misdirected himself, so that he was
entitled to substitute his own decision for the original one. The
Sheriff Principal dispensed with parental consent to adoption, granted
the POA, made ancillary provisions giving parental responsibilities and
rights to the Council and to the prospective adopters and removing
responsibilities and rights from the parents, and terminated the
supervision requirement.
The parents appealed to the Court of Session.
Held
Appeal refused and the permanence order with authority for adoption
upheld.
The opinion of the court was given by Lord Bonomy. It set out the
history of the case, the submissions of the parties and the relevant
legislation. The discussion in the judgment was set out under four
headings and also dealt with ancillary provisions for contact.
(i) Interpretation of section 84(5)(c)(ii) of the 2007 Act
This provision is one of the matters which the court must consider
in all decisions about whether or not to grant a permanence order. It is
the second part of the 'test' for a permanence order: either
there is no one who has the parental right to control residence, section
84(5)(c)(i); or it would be 'seriously detrimental' for the
child to return home to/live with someone who has the parental right to
control residence, section 84(5)(c)(ii). The court did not accept that
there was a hierarchy of subsections in section 84 or that section 84(3)
(minimum necessary intervention) and section 84(4) (welfare of the child
throughout childhood as the paramount consideration) were the most
important ones. It expected that a court would first of all consider the
'test' in section 83(5)(c), bearing in mind the
'welfare' provision in section 84(4) and that it would
'generally be appropriate to address [section 83(5)(c)] before
deciding whether or not an order should be made'. The court
considered that the sheriff had made sufficient findings in fact, so
that he should have been satisfied that it would be seriously
detrimental for the child to live with her parents.
(ii) Interpretation of section 83(3)(c) of the 2007 Act
In a POA application, consent to adoption or dispensing with it is
set out in section 83(1)(c) and (2) to (5). In this case, the section
83(3)(c) ground for dispensing with consent was the issue: that the
parents were unable satisfactorily to carry out their parental
responsibilities and rights, and were 'likely to continue to be
unable to do so'. The appeal court took the view that the sheriff
had misconstrued 'likely to continue' and that it did not need
a court to 'be able to point to some flaw ... or some persistent
harmful behavioural characteristic' of the parent likely to
continue, or other such tests. Rather, a sheriff should be deciding
whether an inability satisfactorily to carry out parental
responsibilities and rights was 'likely to continue in the
foreseeable future'.
(iii) Did the sheriff make a decision that was plainly wrong?
The appeal court set out the facts and considered the cases of
Johansen v Norway 23 EHRR 33 and R v Finland [2006] FLR 923. In this
case, there had been a 'proven track record of inadequate
parenting', unlike in Johansen. Given the terms of the
sheriff's conclusions on various matters, the court took the view
that the Sheriff Principal was right to decide that the sheriff's
decision was 'plainly wrong'. Looking at the circumstances of
the case, the sheriff's decision had 'clearly not [been] in
the best interests of C and did not reflect' the need to safeguard
and promote welfare throughout childhood as the paramount consideration.
(iv) Did the Sheriff Principal err in making the order?
The opinion set out the facts argued on behalf of the Council in
support of the argument that the sheriff should have granted the order
and that the Sheriff Principal had been right to do so on appeal. The
court took the view that the facts 'plainly' justified the
Sheriff Principal's decision. He had referred to findings by the
sheriff showing the child's 'excellent progress' in the
care of the prospective adopters. The sheriff had not paid proper
attention to these factors and the Sheriff Principal was correct to
overturn the sheriff's refusal and to grant the POA.
In addition to these four headings, the judgment dealt with 'a
discrete technical point about' section 82 of the 2007 Act. This
section provides, among other matters, that any parental responsibility
or right can only be extinguished if it is given to someone else. The
Sheriff Principal had removed the parents' responsibility to
maintain contact and their right to do so, and given it to the
prospective adopters. It was argued that this was not appropriate, as
the child was living with them. However, the court took the view that
this was a correct way to deal with the issue. Birth parents would
ordinarily have this responsibility and right although their child lived
with them. There was no reason why this could not also be possible when
the child was living with prospective adopters. In addition,
arrangements for con tact between the child and other people could be
dealt with by a separate ancillary provision under section 82(1)(e).
The court therefore refused the appeal and upheld the Sheriff
Principal's decision.
(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