首页    期刊浏览 2025年07月16日 星期三
登录注册

文章基本信息

  • 标题:Adoption and ECHR: whether ground for dispensing with parental consent compatible with ECHR and within the competence of the Scottish parliament.
  • 作者:Plumtree, Alexandra
  • 期刊名称:Adoption & Fostering
  • 印刷版ISSN:0308-5759
  • 出版年度:2012
  • 期号:September
  • 语种:English
  • 出版社:Sage Publications, Inc.
  • 关键词:Adoption;Parental consent;Parenting

Adoption and ECHR: whether ground for dispensing with parental consent compatible with ECHR and within the competence of the Scottish parliament.


Plumtree, Alexandra


S v L

The Supreme Court

Lord Hope (Deputy President), Lady Hale, Lord Wilson, Lord Reed and Lord Carnwath

11 July 2012 [2012] UKSC 30

Mr and Mrs S applied to adopt the child D in Dumbarton Sheriff Court. The mother, L, did not consent and the court was asked to dispense with her consent under section 31(3)(d) of the Adoption and Children (Scotland) Act 2007. During the proof hearing, the advocate for L argued that this ground was incompatible with the European Convention on Human Rights (ECHR) and therefore out with the competence of the Scottish Parliament. Without completing the adoption proof and reaching a decision on the application, the sheriff remitted this Devolution question to the Court of Session.

The ground for dispensing with parental consent in question (section 31 (3)(d) of the 2007 Act) says 'that where neither of those subsections [subs (4) or (5)] applies, the welfare of the child otherwise requires the consent to be dispensed with'. The Lord Advocate became a party to the proceedings to support the case that section 31(3)(d) was a lawful provision. On 21 June 2011, the First Division of the Court of Session held that the ground was compatible with the ECHR and was therefore within the competence of the Scottish Parliament--Reference from Dumbarton Sheriff Court in S Ptrs v L, otherwise S v L [2011] CSIH 38, 2011 SLT 1204. This was reported in Adoption & Fostering (35:3, 2011, p 70). L appealed to the Supreme Court and the matter was heard on 21 and 22 May 2012.

Held

Appeal dismissed. The ground was compatible with the ECHR and the provision was within the competence of the Scottish Parliament.

The decision was unanimous, with Lord Reed giving the leading judgment. Lord Hope and Lord Carnwath (with whom Lord Wilson agreed) also delivered judgments on particular matters raised by the proceedings, namely delays in court processes and the use of historical judgments respectively.

Lord Reed briefly outlined the factual background and then set out the relevant legislation. An adoption order may not be granted unless one of five conditions listed in section 31 is satisfied. He outlined the first condition in section 31, that either parental consent is given or it is dispensed with on the basis of one of the grounds given, including section 31 (3)(d). He also referred to sections 14 and 28 of the 2007 Act, along with sections 1 and 2 of the Children (Scotland) Act 1995.

Lord Reed then set out the arguments made in the appeal, the correct general approach to statutory interpretation and the background to the 2007 Act. He discussed the Adoption Policy Review Group, its Phase II Report (2005) and the recommendations about grounds for dispensing with parental consent; and then the Scottish Executive's response and the progress of the Bill in 2006.

Thereafter, Lord Reed dealt extensively with the interpretation and application of section 31 along with other provisions of the 2007 Act, and their compatibility with rights under the ECHR. He said that legislation authorising a complete break of family ties between children and birth families should not 'readily be construed as setting anything less than a test of necessity'. Section 31 (3)(d) was consistent with that test, as it stated that the welfare of the child must 'require' the parental consent to be dispensed with. In other words, there had to be:

'an overriding requirement that the adoption proceed for the sake of the child's welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice.'

This was consistent with section 28(2) of the 2007 Act, which stated the 'mini mum necessary intervention' principle, that no order should be made unless it was better for the child that it be made than not.

In addition, the 2007 Act had to operate within the ECHR rights established by the Human Rights Act 1998. It must have been intended that courts would interpret and give effect to section 31(3)(d) in such a way as to comply with the Convention rights of birth parents. And finally, the 2007 Act was to be construed 'in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations', in this case, those under the ECHR. This was another reason for interpreting the section 31(3)(d) test as one necessitating 'an overriding requirement: a test, in other words, of necessity and proportionality'.

This was also in line with the international law principle, that the welfare of the child should be the paramount consideration: for example, in Article 21 of the UN Convention on the Rights of the Child (UNCRC), in the preamble to the European Convention on the Adoption of Children (Revised, 2008) and, implicitly in Article 8 of the ECHR. Lord Reed quoted para 94 in French from Pontes v Portugal (Application No 19554/09) (unreported) given on 10 April 2012, roughly translated as: The court repeats with considerable emphasis that, in cases of this type, the interests of the child must take precedence over all other considerations.'

Thereafter, Lord Reed looked at whether section 31(3)(d), considered with ordinary statutory interpretation principles, was compatible with Convention rights. He referred to a wide range of UK and European court judgments, some of which had been discussed in the Court of Session judgment. Overall, although section 31(3)(d) was understandably imprecise, it was 'not unforeseeable in it application', if it was looked at in the manner he had set out.

Finally, Lord Reed commented critically on the damaging consequences of the delays that had occurred since the application was raised in November 2009. These had happened despite the clear statements in the Practice Notes for all Sheriffdoms about the avoidance of delay and the need for judicial case management. In para 50 of his judgment, Lord Reed said:

More generally, considering this appeal soon after the case of NJDB v JEG [2012] UKSC 21, where this court was critical of the procedure followed in a dispute over contact, it is difficult to avoid the impression that further efforts require to be made to encourage active and firm judicial case management of family proceedings in the Sheriff Court.'

Lord Hope agreed with Lord Reed's decision and reasons, and also strongly endorsed the comments on the need for case management of family proceedings. Lord Hope was also grateful to Lord Carnwath for his comments.

Lord Carnwath, with whom Lord Wilson agreed, added critical comments about the use of European court authorities in the arguments put before the court by counsel for the birth mother. He concluded by saying:

'However, the passages relied on were largely designed to summarise earlier authority, and on examination, and in the light of their treatment in later cases, cannot bear the formulaic significance attributed to them by the appellant's submissions.'

Note

The full judgment can be found at www. supremecourt.gov.uk under 'Decided cases'. This is an important judgment for all cases under the 2007 Act. It is now clear that section 31(3)(d) of the Act (along with section 83(2)(d), the equivalent provision for permanence orders with authority for adoption) is of itself compliant with the ECHR, provided it is properly used in individual cases. In addition, the Supreme Court has again made clear that it expects family cases to be dealt with expeditiously and with the minimum of delay. And finally, Lord Carnwath's judgment is helpful in discouraging lawyers from using historic case references and quotes without looking at the most up-to-date decisions and their overall impact.

Brief notes

(a) Proposed Children and Young Person's Bill

The Scottish Government published a consultation document on 4 July 2012, with proposals for a range of legislative provisions for children and young people. The topics covered by the consultation included the Getting it Right for Every Child (GIRFEC) agenda, development and extension of early years provisions for children, proposals about the place of the UNCRC in Scots law, and issues concerned with looked after children, including a new order for kinship carers, and suggestions about corporate parenting duties. The consultation document is available on the Scottish Government website-www. scotland.gov.uk under Publications, 4 July 2012--and was open until 25 September. The responses are available under Publications 30 October and a Bill is anticipated in 2013.

(b) Child protection website

The Scottish Government launched a new child protection website on 16 July 2012, called 'With Scotland'--www. childprotectionscotland.org. This is a combination of the Multi-Agency Resource Service (MARS) and the Scottish Child Care and Protection Network (SCCPN), to develop stronger connections between child, adult and public protection.

Alexandra Plumtree, Legal Consultant at BAAF's Scottish Centre, prepared these notes
联系我们|关于我们|网站声明
国家哲学社会科学文献中心版权所有