FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lady Paton Lord Kingarth	[2011] CSIH 38 XA8/11 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Reference from the Sheriff Court at Dumbarton in the Petition of ANS and DCS Petitioners; against ML Respondent: _______

Act: Dowdalls; J.K. Cameron, Glasgow (for the Petitioners)

Alt: Clarke; Drummond Miller LLP (for the Respondent and Minuter)

For the Lord Advocate: Duncan; Scottish Government Legal Directorate

21 June 2011

The proceedings
[1] The respondent is the biological mother of DL, a child presently four years of age. The petitioners have presented to the sheriff at Dumbarton a petition seeking an adoption order in their favour in respect of DL. That petition is opposed by the respondent, who has refused to give her consent to DL's adoption.

[2] In the course of these proceedings a devolution issue has arisen upon which the sheriff seeks a ruling by the Inner House of the Court of Session. In the reference made by him he poses the following question:

"... whether section 31(3)(d) of the Adoption (Scotland) Act 2007 is compliant with the respondent's and the child's right to respect for family life in terms of art 8 of the ECHR and therefore whether compatible with Convention rights and community law in terms of section 29(2)(d) of the Scotland Act 1998".

The respondent maintains that that statutory provision was beyond the competence of the Scottish Parliament and is accordingly "not law". The Lord Advocate has entered the process to support the lawfulness of the provision in question.

The relevant statutory provisions

[3] The Adoption and Children (Scotland) Act 2007 represents, in some respects at least, a radical departure from the previous statutory regime for the adoption of children in Scotland - that contained in the Adoption (Scotland) Act 1978 (as amended). Section 16 of the latter Act provided:

"(1) An adoption order shall not be made unless ...

(b) in the case of each parent or guardian of the child the court is satisfied that

...

(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2).

(2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian -

(a) cannot be found or is incapable of giving agreement;

(b) is withholding his agreement unreasonably;

(c) has persistently failed without reasonable cause to discharge the parental duties in relation to the child;

(d) has abandoned or neglected the child;

(e) has persistently ill-treated the child;

(f) has seriously ill-treated the child (subject to subsection (5));

...

(5) Subsection (2)(f) does not apply unless (because of the ill-treatment or for other reasons) the rehabilitation of the child within the household of the parent or guardian is unlikely."

As can be seen from grounds (b) to (f) inclusive, the grounds which had to be made out if a parent or guardian's agreement to the making of the order was to be dispensed with focussed heavily on the conduct of that parent or guardian.

[4] By contrast, the equivalent provisions in the 2007 Act (section 31(1) - (5)) are, in so far as material, in the following terms:

"(1) An adoption order may not be made unless one of the five conditions is met.

(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied -

...

(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3).

(3) Those grounds are -

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(c) that subsection (4) or (5) applies,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(4) This subsection applies if the parent or guardian -

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the [Children (Scotland) Act 1995],

(b) is, in the opinion of the court, unable satisfactorily to -

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

(5) This subsection applies if -

(a) the parent or guardian has, by virtue of the making of a relevant order, no parental responsibilities or parental rights in relation to the child, and

(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian.

(6) In subsection (5)(a), 'relevant order' means a permanence order which does not include provision granting authority for the child to whom the order relates to be adopted."

A "permanence order" is, by section 80, an order made by an appropriate court in respect of a child containing certain provisions, which may include provisions extinguishing responsibilities or rights previously vested in a parent or guardian of the child (section 82(1)(c) and (d)).

[5] Section 31 has to be read along with other relevant provisions in the 2007 Act. These include sections 14 and 28 which, in so far as material, are in the following terms:

"14(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to -

(a) the value of a stable family unit in the child's development,

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

(c) the child's religious persuasion, racial origin and cultural and linguistic background, and

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

...".

"28(1) An adoption order is an order made by the appropriate court on an application under section 29 or 30 vesting the parental responsibilities and parental rights in relation to a child in the adopters or adopter.

(2) The court must not make an adoption order unless it considers that it would be better for the child that the order may be made than not.

(3) An adoption order may contain such terms and conditions as the court thinks fit.

...".

[6] The Children (Scotland) Act 1995 (as amended) provides:

Section 1(1):

"... a parent has in relation to his child the responsibility -

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child -

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child."

Section 2(1):

"... a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right -

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative."

Article 8

[7] Article 8 of the Convention on Human Rights and Fundamental Freedoms provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Submission for the respondent

[8] Miss Clarke on behalf of the respondent submitted that section 31(3)(d) of the 2007 Act was not "in accordance with the law" nor "necessary in a democratic society" for any of the listed purposes. The reference in that subsection to "welfare" was vague, irrational and impermissibly speculative. It was not in accordance with international law, against which the rights in article 8 had to be measured. Section 31(3)(d) applied only where neither subsection (4) nor (5) applied. Thus, for example, where subsection 31(4) did not apply - because the parent with parental responsibilities and parental rights in relation to the child (other than a responsibility or right in respect of contact) had not been shown to be unable satisfactorily to discharge those responsibilities or exercise those rights and to be likely to continue to be unable to do so - that parent was at risk of his or her child being adopted notwithstanding that consent had not been given. In other words a (perfectly) capable parent was liable to have his or her child adopted by the application of a "welfare" test. The two provisions were essentially inconsistent with each other. It was important to recognise that an adoption order would (or at least might) sever completely the connection between the child and his or her biological parent. An adoption order made against the will of the parent was the highest form of coercive action by the state. Article 8 rights in relation to a child had to be seen against international conventions, including the United Nations Convention on the Rights of the Child of November 20^th 1989 (Pini and Others v Romania (2005) 40 EHRR 13, at para 139). Article 7 of that Convention emphasised the importance of children being cared for by their biological parents. Reference was also made to articles 3, 5, 6, 8, 9, 18 and 21. It was not submitted that adoption was inconsistent with that Convention but, read as whole, it affirmed that the optimal arrangement was for a child to be brought up by his or her own parents. The state could not come in and strip the child of its natural identity unless the parent was at fault. Particular emphasis was placed on the recent observations of the Grand Chamber of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 at para [135] and [136]. Reliance was also placed on the European Convention on the Adoption of Children of 24 April 1967 and the revised version of that Convention (27 November 2008). The latter had been signed by the United Kingdom Government. Although not ratified by the United Kingdom, there was an obligation not to legislate disconform to its provisions. Cutting off a child from its roots could be justified only in exceptional circumstances (Görgülü v Germany [2004] 1 FCR 410). Section 31(3)(d) did not meet the test of exceptionality. Where a parent was able satisfactorily to discharge and exercise the main parental responsibilities and rights and was willing to do so (as would be implicit in his or her not giving consent to adoption), this imported a higher standard than "welfare". It was impossible to apply section 31(3)(d), which was irrational, unreasonable and arbitrary. Although no formal challenge was made in these proceedings to the constitutional legitimacy of section 14 of the 2007 Act, the reference in section 14(3) to "welfare" also gave rise to difficulties. It was difficult to square this with the provisions of the 1995 Act. In the ordinary way the rearing of a child by his or her biological parent could be expected to be in the child's best interests (In re G (Children) [2006] 1 WLR 2305, per Lord Nicholls of Birkenhead at para 2). The 2007 legislation had been criticised by Professor Kenneth Norrie (2008 SLT (News) 213); that criticism was adopted. Reference was also made to X v Croatia (2010) 51 EHRR 20 at para 47, Eski v Austria [2007] 1 FLR 1650 at paras 34-5 and Buchberger v Austria (2003) 37 EHRR 13 at para 39. The court should declare that section 31(3)(d) was not law.

Submission for the Lord Advocate

[9] Mr Duncan for the Lord Advocate submitted that the question referred should be answered in the affirmative. The overriding consideration in adoption proceedings was that identified in section 14(3) of the 2007 Act, namely the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration. Section 14(4) identified a number of factors in that regard, including the value of a stable family unit in the child's development and the likely effect on the child, throughout the child's life, of the making of an adoption order. In deciding whether parental consent should be dispensed with, the court must have regard to that paramount consideration. Although a two-stage approach (as favoured in Lothian RC v A 1992 SLT 858 in relation to the previous legislation) would appear to be appropriate in relation to issues relative to section 31(3)(a), (b) and (c), satisfaction of ground (d) would appear to answer the question under section 31(2)(b) as to whether consent should be dispensed with. There was no contradiction or inconsistency between the non-application of subsections (4) and (5) and the application of the welfare test under subsection (3)(d) - for four reasons:

(i) one could readily envisage situations in which, where the parent had only contact responsibilities/rights, the child's welfare would demand adoption,

(ii) subsection 31(4) being cumulative, it might be excluded when the parent was currently unable satisfactorily to discharge or exercise his or her parental responsibilities or rights but the court was unable to find that that state of affairs was likely to continue to be the case,

(iii) conversely, the parent might currently be able to do so but unlikely be able to do so in the future and

(iv) under subsection (5) there might be situations in which the court was unable to hold that a parent whose responsibilities/rights had been extinguished was unlikely to have them restored.

Furthermore, the child's own views (particularly where he or she had been living for a significant period of time in a stable adoptive family and where there had been no, or minimal, contact with the parent in question) had to be taken into account. It was clear that the new legislation had sought to move away from the previous parental-blame approach, founding the test for dispensing with a parent's consent on the principle of the welfare of the child looked at in all the circumstances relevant to the whole of his or her life. This was consistent with the approach adopted by the Strasbourg court in adoption cases. The provision, as introduced in Parliament, had not contained what were now subsections 31(3)(c) and 31(4) and (5) but had adopted a straightforward welfare test as in England and Wales (Adoption and Children Act 2002, section 52(1)(b)). It was not clear why the Bill had been amended during its passage. It was, however, clear that subsection 31(3)(d) was satisfied only where the welfare of the child required the consent to be dispensed with. This suggested an exceptional test; it was not simply a question of asking whether one arrangement was preferable to another. It was important also to notice that subsection 31(4) was concerned with capacity to discharge the requisite responsibilities, not with their actual discharge. Professor Norrie's concerns about the compliance of the 2007 Act with the Convention were not justified. Reference was made to a responding article by Janys M Scott, Q.C. (2009 SLT (News) 17). Decisions on the welfare of children did not truly involve the exercise of a judicial discretion but rather the exercise of a judgment (Osborne v Matthan (No.2) 1998 SC 682, per Lord President Rodger at pages 688-9).

[10] It was accepted that article 8 was engaged and that the breaking of the biological parent/child tie by adoption involved an interference by a public authority with the exercise of the right to private and family life. In addressing whether the legislation was compliant, it was necessary to bear in mind all the circumstances in which it might apply. This provision was in accordance with the law and was justified, as being necessary in a democratic society for the protection of the rights and freedoms of others (including the subject-child) as well as perhaps for the protection of health or morals. The Strasbourg court had accorded a margin of appreciation to individual states as to how they dealt with children (including in respect of adoption), although, where all ties were liable to be cut off, particularly careful scrutiny was required. One principle was, however, clear. In striking the appropriate balance the subject-child's interests were paramount and might override the interests of all others. The court had never said that the establishment of fault/delinquency on the part of the parent was a prerequisite to dispensing with that parent's consent. Ground (d), by stipulating that the welfare of the child "requires" the consent to be dispensed with, exactly captured the Strasbourg jurisprudence. The significance of the equivalent stipulation in the English legislation had been noted in In re P (Adoption: Parental Consent) [2009] PTSR 150, especially at paras 125-6. Reference was also made to Johansen v Norway (1996) 23 EHRR 33, Söderbäck v Sweden (1998) 29 EHRR 95, Eski v Austria, Chepelev v Russia (2008) 47 EHRR 37 and Kearns v France (2010) 50 EHRR 33. On a sound reading of Neulinger and Shuruk v Switzerland (a Hague Convention case), there was no need in adoption cases for it to be demonstrated that "the family had proved particularly unfit". Reference was also made to KA and TB v SE [2011] EWCA Civ 361.

[11] As to the Conventions, it was accepted that Strasbourg jurisprudence was to the effect that article 8 was to be interpreted in line with the United Nations Convention on the Rights of the Child, which the United Kingdom had ratified in December 1991. The same approach was appropriate when construing and applying UK legislation (White v White 2001 SC 689, per Lord McCluskey at page 703). Article 3 of that Convention stated the overarching principle (the best interests of the child). Article 7 was to be read in the context of article 3 and of article 21 (which envisaged a system of adoption). As to the 1967 European Convention on the Adoption of Children, this had been denounced by the United Kingdom Government (except as regards Guernsey and Jersey) in 2005. This released the denouncing state from its obligations under that Convention (Vienna Convention on the Law of Treaties (1969), article 70). The United Kingdom had neither signed nor ratified the European Convention on the Adoption of Children (Revised) (2008), although with three (other) signatories that Convention would come into force in September 2011.

[12] Subsection 31(3)(d) was in accordance with the law. It was appropriate that, when anxious decisions had to be made in adoption cases, the test for dispensing with the consent of a parent should not be too narrow or too rigid. The fact that the wording of section 31(3)(d) required some judicial interpretation and assessment of the facts did not by itself make the legal provision unforeseeable in its application (Kuijper v Netherlands (2005) 41 EHRR SE 16, at page 277).

Submission for the petitioners

[13] Ms Dowdalls on behalf of the petitioners adopted Mr Duncan's submission.

Discussion

[14] Before addressing the critical issue as to whether section 31(3)(d) is Convention-compliant, it is appropriate to set it in its legislative framework. Section 14 makes general provision as to the obligations of courts (and adoption agencies) in coming to a decision relating to the adoption of a child. Each is required to have regard to all the circumstances of the case and to regard "the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration". Each is then required, so far as reasonably practicable, to have regard to four particular factors. These include the value of a stable family unit in the child's development, the child's ascertainable views regarding the decision (taking account of the child's age and maturity) and the likely effect on the child, throughout the child's life, of the making of an adoption order. Section 28(2) requires the court not to make an adoption order unless it considers that it would be better for the child that the order be made than not. Section 28(3) authorises the making of an adoption order subject to terms and conditions. Thus, a provision allowing continuing contact with a biological parent is possible; adoption under this legislation does not necessarily cut off all relationships between the child and his or her biological parents. Section 31 is a complex provision. It provides (section 31(1)) that an adoption order may not be made unless one of five conditions is met. Only the first of these conditions (which includes provision for the dispensing of the consent of the parent or guardian) is germane to the present issue; the remaining conditions concern situations where such consent (or the dispensing with it) is no longer a live issue. Section 31(2) provides for alternatives: that the court is satisfied that informed consent to the making of the adoption order has been given by each parent or guardian or that the court is satisfied that such consent should be dispensed with on one of the grounds mentioned in subsection (3). There are four such grounds. Grounds (a) (that the parent or guardian is dead) and (b) (that the parent or guardian cannot be found or is incapable of giving consent) are uncontroversial. These are situations in which the consent of the parent or guardian might be expected to be dispensed with - though the court, having regard to section 14, will still require to be satisfied that in the particular circumstances consent should be dispensed with. The third ground (subsection 31(3)(c)) is that subsection (4) or (5) applies. Subsection (4) applies if each of three conditions is met. Contrary to Professor Norrie's suggestion, we are satisfied, having regard to the statutory language, that these three conditions are truly cumulative. The first (read short) is that the parent or guardian has parental responsibilities or parental rights other than that of contact; the second is that, in the opinion of the court, that parent or guardian is unable satisfactorily to discharge or exercise those rights or responsibilities; the third is that he or she is likely to continue to be unable to do so. Subsection (5) applies where the parent or guardian has, by virtue of the making of an order extinguishing parental responsibilities or parental rights, no such responsibilities or rights and it is unlikely that such responsibilities or rights will be imposed on or given to the parent or guardian. Both of these subsections posit situations in which there has been, is, or is likely to be, inadequacy of some kind on the part of the parent or guardian with respect to the child. Ground (d) applies only where neither of subsections (4) or (5) applies. It is that "the welfare of the child otherwise requires the consent to be dispensed with." The employment of the word "otherwise" appears to be a reference to subsections (4) and (5) - with the implication that there will, or at least may be, situations other than where subsections (4) or (5) is satisfied where the welfare of the child requires the consent of the parent or guardian to be dispensed with. This "fallback" provision is consistent with section 14, which identifies the welfare of the child as the paramount consideration in any decision relating to adoption. We are unable to agree with Professor Norrie that "welfare" in section 14 has a different meaning than in section 31(3)(d). The overall criterion for dispensing with the consent of the parent or guardian is accordingly that the whole-life welfare of the child requires that that course be taken. The word "requires" imports an imperative demand. The question which arises is whether such a legislative provision is inconsistent with the article 8 rights of biological parents (or of the child).

[15] The particular obligations under article 8 imposed on contracting states have to be interpreted in the light of the United Nations Convention on the Rights of the Child (to which the United Kingdom is a signatory) and possibly of other international Conventions. The effect of each Convention is to be ascertained by reading it as a whole. The United Nations Convention provides, among other things:

"...

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

...

Article 5

States Parties shall respect the responsibilities, rights and duties of parents, or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

...

Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and to be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

...

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

...

Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child shall be their basic concern.

...

Article 21
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

...".

[16] The Convention accordingly acknowledges the importance of the connection between a child and its biological parents but likewise acknowledges that states may legitimately have a system of adoption which inevitably disrupts that natural relationship. The obligation of the state is to ensure that in any such system the best interests of the child is the paramount consideration. That is consonant with the general requirement (in article 3) that in all actions concerning children the best interests of the child are to be a primary consideration. Nor is it inconsistent with the provisions elsewhere in the Convention concerning the relationship of the child with his or her biological parents. It also appears to envisage that in appropriate circumstances parental consent to adoption may be dispensed with ("..., if required, ..."). It should, however, be borne in mind that the Convention is concerned with the rights of the child, not, at least primarily, with those of his or her parents.

[17] Given the United Kingdom's position in relation to the European Conventions on Adoption of 1967 and 2008, it is questionable whether these are relevant to the interpretation of article 8 rights in so far as bearing on Scottish legislation. But, however that question be answered, each of these Conventions provides that the competent authority shall not grant an adoption order unless it is satisfied that the adoption will be in the best interests of the child (1967, article 8.1; 2008, article 4.1). While each provides (1967, article 5.2; 2008, article 5.3) that the consents of certain natural relatives shall not be dispensed with "save on exceptional grounds determined by law", neither seeks to identify what such exceptional grounds might be. In particular, there is nothing express in either Convention which prohibits a welfare test, either straightforwardly or as a "fallback".

[18] In England and Wales a straightforward welfare test for dispensing with parental and similar consent was introduced by section 52(1) of the Adoption and Children Act 2002. It provides:

"(1) The court cannot dispense with the consent of any parent or guardian ... to the making of an adoption order in respect of the child unless the court is satisfied that ...

(b) the welfare of a child requires that the consent be dispensed with."

This provision was considered by a distinguished Court of Appeal in In re P (Adoption: Parental Consent) where the Opinion of the Court was delivered by Wall LJ (as he then was). The compliance of that provision with the Convention does not appear to have been a matter arising expressly for decision but the court took the opportunity to consider the meaning and application of section 52(1) in the context of the European Convention. It said:

"119 Plainly article 8 is engaged; and it is elementary that, if article 8 is not to be breached, any intervention under Part IV or Part V of the [Children Act 1989], and any placement or adoption order made without parental consent in accordance with section 52(1)(b) of the 2002 Act, must be proportionate to the legitimate aim of protecting the welfare and interests of the child. As Hale LJ said in In re C and B (Care Order: Future Harm) [2001] 1 FLR 611, para 33:

'under article 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be "necessary in a democratic society".'

120 'Necessary' takes its colour from the context but in the Strasbourg jurisprudence has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a 'pressing social need.' Hale LJ continued, at para 34:

'There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'

121 She reiterated that in In re O (Supervision Order) [2001] 1 FLR 923, adding, at para 28, that 'Proportionality, therefore, is the key'. There is no need to refer in detail to the Strasbourg case law. A recent statement of the principle can be found in Haase v Germany [2004] 2 FLR 39, para 93.

122 To the same effect is the judgment of Thorpe LJ in In re B (Care: Interference with Family Life) [2003] 2 FLR 813, para 34:

'where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 article 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an inference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.'

123 That last observation reflects the well established principle, derived from section 1(5) of the 1989 Act, read in conjunction with section 1(3)(g), and now similarly embodied in section 1(6) of the 2002 Act, that, particularly in the context of public law proceedings, the court should adopt the 'least interventionist' approach. As Hale J said in In re O (Care or Supervision Order) [1996] 2 FLR 755, 760:

'the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children ... unless there are cogent reasons to the contrary.'

124 In assessing what is proportionate, the court has, of course, always to bear in mind that adoption without parental consent is an extreme - indeed the most extreme - interference with family life. Cogent justification must therefore exist if parental consent is to be dispensed with in accordance with section 52(1)(b). Hence the observations of the Strasbourg court in Johansen v Norway 23 EHRR 33 upon which Mr Geekie in particular relied. That was a case where the court had to consider a permanent placement with a view to adoption. It said, at para 78:

'These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests.'

125 This is the context in which the critical word 'requires' is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective 'requires' does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.

126 What is also important to appreciate is the statutory context in which the word 'requires' is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption - the making of either a placement order or an adoption order - and what therefore has to be shown is that the child's welfare 'requires' adoption as opposed to something short of adoption. A child's circumstances may 'require' statutory intervention, perhaps may even 'require' the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily 'require' that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is 'required' is adoption."

The court goes on to contrast the provisions of the 2002 Act with those of its predecessor (the Children Act 1989), in particular noting the requirement under the former to have regard to the consequences for the child throughout his or her life.

[19] In re P (Adoption: Parental Consent) has no direct application to the Adoption (Scotland) Act 2007; but it provides useful guidance on how, against the relative European jurisprudence, the word "requires" is to be construed in the context of a statutory provision providing for dispensation of the agreement of a biological parent (or a guardian). The word has "the connotation of the imperative, what is demanded rather than what is merely optimal or reasonable or desirable" (para 125). That approach to construction is equally applicable to section 31(3)(d).

[20] Against that construction, which imposes a high test, the issue of compliance or otherwise of that subsection with the article 8 rights of biological parents and of guardians and of subject children falls to be addressed.

[21] The notion of the child's best interests as the (or a) paramount consideration pervades international legal measures affecting children, including provisions in respect of adoption of children. It also pervades Strasbourg jurisprudence in relation to adoption. In Söderbäck v Sweden (where the issue was whether a child should be adopted by her step-father against the wishes of her biological father) the Commission held that there had been an infringement of article 8 rights "it not having been shown that the measure corresponded to any overriding requirement in the child's best interests" (para 46 of the Commission's Opinion - page 104). The Court took a different view, holding in the circumstances that there had been no infringement. At para 34 it said:

"Against [the particular] background, and having regard to the assessment of the child's best interests made by the domestic courts ... the Court is satisfied that the decision fell within the margin of appreciation."

Likewise in Chepelev v Russia, where again the adoptive parent was the child's step-father, the Court said at para 31:

"Against this background, and having regard to the assessment of the child's best interest made by the domestic courts, as well as to the limited relations that the applicant had with A during the period of about three years before the adoption, the Court is satisfied that the decision fell within the margin of appreciation allowed to the respondent State."

In Kearns v France the Court said at para 79:

"In striking a balance between these different interests [which included the interests of the biological mother], the child's best interests should be paramount."

Similar dicta can be found in Kuijper v Netherlands at page 278.

[22] These observations support the proposition that a domestic test for dispensing with biological parental consent which comprises, or includes, the criterion of the child's best interests (a whole-life welfare test) is compliant with the Convention. Section 31(3) includes such a test. It was, in our view, within the margin of appreciation allowed to the Scottish Parliament and accordingly within its competence to make such a provision.

[23] We reject the submission that section 31(3)(d) is illogical or irrational. For the reasons given by Mr Duncan we are satisfied that circumstances can be figured in which section 31(3)(d) could be satisfied, albeit neither subsections (4) or (5) was met. Given, however, the significance in its context of the word "requires", the instances for the application of section 31(3)(d) may be limited.

[24] We also reject the submission that a welfare test is impermissibly vague. As was recognised in Kuijper v Netherlands at page 277, the principle that laws must be of general application may lead to statutory provisions not always being precise. "The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague." That does not make a legal provision unforeseeable in its application. Accordingly, section 31(3)(d) is "in accordance with the law". It also has a legitimate aim (the best interests of children) and seeks to achieve that aim by proportionate measures. It is thus justified - "necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others" (including subject children).

[25] Much reliance was placed by Miss Clarke on the observations by the Court in Neulinger and Shuruk v Switzerland. The Court said:

"[135] The court notes that there is currently a broad consensus - including in international law - in support of the idea that in all decisions concerning children, their best interests must be paramount ... As indicated, for example in the [European Union Charter of Fundamental Rights 2000], 'every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests'.

[136] The child's interest comprises two limbs. On the one hand, it dictates that the child's ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to 'rebuild' the family ... On the other hand, it is clearly also in the child's interest to ensure its development in a sound environment, and a parent cannot be entitled under Art 8 to have such measures taken as would harm the child's health and development ...".

We note the observations in para [135] as to the broad consensus in support of the idea that in all decisions concerning children their best interests must be paramount and in para [136] that a parent cannot be entitled under article 8 to have such measures taken as would harm the child's health and development. The second and third sentences of the latter paragraph must be read in that context. It should also be noted that Neulinger concerned a dispute between the biological parents of the subject child - whether an order under the Hague Convention for the return of the mother and child to Israel (the family's home jurisdiction) should be enforced. The references to "particularly unfit" and "very exceptional circumstances" should be seen in that particular context. In Gnahoré v France (2002) 34 EHRR 38, referred to in para [136] of Neulinger, the issue concerned whether a father's rights had been infringed by decisions to place his young son in the care of the local Social Service for Children. Observations were made (at para 59) about the importance of familiar links in that context. The proposition that cutting off a child from its roots can only be justified in very exceptional circumstances was admittedly approved in an adoption case (Görgülü v Germany); but in that case there were strong factors in favour of the biological father. The decision turned very much on the circumstances of the case. It was not concerned with the legitimacy of the legislative framework for adoption. In P, C and S v United Kingdom (2002) 35 EHRR 31 (a freeing for adoption case) the proposition was formulated thus - that a measure which would cut a child from its roots could only be justified "in exceptional circumstances or by the overriding requirement of the child's best interests" (para 118). Section 31(3)(d) echoes that overriding requirement.

Disposal

[26] In the whole circumstances we are satisfied that the statutory provision challenged was within the legislative competence of the Scottish Parliament. We shall accordingly answer the referred question in the affirmative and remit the case to the sheriff to proceed as accords.