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