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

Plumtree, Alexandra

Aberdeenshire Council v TW and JW

Sheriffdom of Grampian, Highland and Islands at Banff

Sheriff Principal Sir Stephen S T Young

Bt QC

2 June 2011

TW and JW were the mother and father of CW, aged two-and-a-half. Both parents were adopted, as had been 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 in April 2010, 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 2007 Act. In December 2010, the sheriff refused the order, and then issued his written judgement on 28 January 2011. The Council appealed to the Sheriff Principal.

Held

Appeal granted; permanence order granted; ancillary provisions made giving parental responsibilities and rights to the Council and to the prospective adopters and removing responsibilities and rights from the parents; authority for adoption granted; parental consent to adoption dispensed with; and supervision requirement terminated.

The Sheriff Principal outlined the factual background, including some of the sheriff's findings in fact. He considered that 'the sheriff both misdirected himself in law and went clearly wrong', so that he was entitled to substitute his own decision for the original one. He addressed the general test for permanence orders in section 84(5)(c) of the 2007 Act and the ground for dispensing with parental consent to adoption in section 83(3).

Reference was made to the Phase I Report of the Adoption Policy Review Group, including 'that three essential requirements of a healthy childhood are permanence, continuity and stability' and that 'delays carry very real risks for children'. The Sheriff Principal took the view that having CW continue to be subject to a supervision requirement could not 'hope to offer the assurance of permanence stability and continuity' that she needed. He also addressed the rights of the parents under Article 8 of the European Convention on Human Rights. He considered that the issue was whether granting the order, and therefore interfering with the parents' Article 8 right to respect for their private and family life, was necessary in the whole circumstances of the case. He was 'quite satisfied that the order [was] necessary'.

This case is now under appeal.

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