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  • 标题:Adoption and permanence order: whether parental consent should be dispensed with and permanence order with authority for adoption granted; contact.
  • 作者:Plumtree, Alexandra
  • 期刊名称:Adoption & Fostering
  • 印刷版ISSN:0308-5759
  • 出版年度:2012
  • 期号:June
  • 语种:English
  • 出版社:Sage Publications, Inc.
  • 摘要: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).
  • 关键词:Adoption;Child welfare;Parenting

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
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