SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hardie Lord Marnoch	[2011] CSIH 43 XA30/11 OPINION OF THE LORD JUSTICE CLERK in the appeal by (1) IO and (2) LO Appellants: against ABERDEEN CITY COUNCIL Respondent; _______

For the appellants: (1) S A Bell; Drummond Miller

(2) Brabender; Balfour and Manson

For the respondent: Kelly QC; Morton Fraser

7 July 2011

Introduction

[1] This is an appeal against an interlocutor dated 8 February 2011 by which Sheriff Garden at Aberdeen made an order declaring HMCO, born on 8 August 2005, to be free for adoption, and ordered that HMCO be treated as subject to a permanence order in terms of article 17(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009 (the 2009 Order). The first and second appellants are HMCO's parents. The respondent is an adoption agency for the purposes of the Adoption (Scotland) Act 1978.

The proceedings

[2] On 4 August 2009 the respondent lodged an application in Aberdeen sheriff court for an order declaring HMCO free for adoption. After sundry procedure and the production of a report from a curator ad litem the sheriff heard evidence over nine days between May and November 2010. He continued the case to January 2011 for submissions. At that date the solicitor for the appellants raised the point of competency with which this appeal is concerned.

The legislation

[3] The Adoption and Children (Scotland) Act 2007 (the 2007 Act) repealed the Adoption (Scotland) Act 1978 and introduced new adoption procedures. It replaced the former procedure of freeing orders with the new and more flexible remedy of a permanence order. A permanence order contains (a) a mandatory provision giving the local authority the right to regulate the child's residence and the responsibility for providing the child with guidance; (b) such ancillary provisions as the court may think fit; and (c) if certain conditions are met, authority for the child to be adopted (2007 Act, s 80(2)).

[4] The relevant provisions of the 2007 Act were brought into force on 28 September 2009 (the appointed day) by the 2009 Order (arts 2 and 1(2)). Chapter 4 of the 2009 Order contains transitional provisions relating to the former freeing orders.

[5] Article 16 applies to freeing orders made or applied for before the appointed day. It provides as follows:

"16 (1) This article applies where a child is subject to a freeing order-

(a) immediately before the appointed day; or

(b) by virtue of an order granted following an application referred to in article 18.

(2) Subject to section 35 (effect of order on existing rights etc.) of the Act the freeing order shall continue to have effect until 28th September 2010.

(3) Despite their repeal the provisions of the 1978 Act continue to have effect as they did immediately before the appointed day to the extent required for the purposes of paragraph (2)."

Article 17 provides for the case where a freeing order is in force immediately before 28 September 2010, having been made or applied for before 28 September 2009. It provides inter alia as follows:

"17 (1) Where, immediately before 28th September 2010 a child is subject to a freeing order by virtue of article 16 that child shall be treated as if they were subject to a permanence order ... "

Article 18 provides as follows:

"18  Where, before the appointed day, an application for a freeing order has been made under section 18 (freeing child for adoption) of the 1978 Act and not yet determined the provisions of the 1978 Act have effect in respect of that application."

The issue

[6] The 2009 Order therefore provides for the following situations in the following ways -

(1)                         If a freeing order is in force immediately before the appointed day, it continues to have effect until 28 September 2010 and during that period the 1978 Act continues to apply to it (art 16(1)(a)).

(2)                         If a freeing order has been applied for before the appointed day, but has not been determined by that date, the 1978 Act continues to apply to the application (art 18) and a freeing order granted on such an application continues to have effect until 28 September 2010 (art 16(1)(b)).

(3)                         If in either of these cases the freeing order remains in force immediately before 28 September 2010, the child shall then be treated as if he were subject to a permanence order (art 17(1)).

The obvious gap in the Order is that it makes no provision for the case where a freeing order has been applied for before the appointed day but the application is not granted until after 28 September 2010. This is therefore a transitional problem. It affects only a few cases; but it matters a great deal in each of them.

The sheriff's decision

[7] The sheriff rejected the appellants' submission that the proceedings were incompetent. He was satisfied that the intention of the 2009 Order had been to allow applications for freeing orders to continue to the point of their determination, without a cut-off date. The provisions had been poorly drafted and it was appropriate for the court to correct what was an obvious drafting error. Relying on the principles set out in Inco Europe Ltd v First Choice Distribution ([2000] 1 WLR 586, Lord Nicholls of Birkenhead at pp 592-593), he determined that article 17(1) should be read as if with the addition of the following italicised words:

"Where, immediately before, on or after 28th September 2010 a child is or is made subject to a freeing order by virtue of article 16 and/or article 18 that child shall be treated as if they were subject to a permanence order."

Since he was satisfied that adoption was in the best interests of HMCO and that the appellants were unreasonably withholding their consent to it, he granted the respondent's application.

Submissions for the appellants

[8] The appellants contend that the sheriff's order was incompetent. Counsel for the second appellant, whose submissions counsel for the first appellant adopted, argued that the problem did not result from a drafting error but from an error of policy. The clear intention of the 2009 Order was to restrict the continuing effect of freeing orders to a period of one year from the appointed day. The draftsman had not contemplated that proceedings for a freeing order that were in course at the appointed day could last for more than one year thereafter. It was not clear what provision would have been made if that possibility had been recognised. The Scottish Government had become aware of this difficulty, but had chosen not to amend the Order. For freeing orders granted after 28 September 2010 to have legal effect, a wholesale revisal of articles 16 and 17 would be required. In these circumstances the court could not re-write the Order. Even if the general principles set out in Inco Europe Ltd v First Choice Distrbution (supra) were held to apply, the sheriff's re-wording of article 17(1) was so wide that it was in effect judicial legislation. Having regard to the consequences of a freeing order, the 2009 Order should be strictly construed. The sheriff's order was not in accordance with law. It was incompatible with article 8 of the Convention. The respondent could have delayed the raising of proceedings until after the 2007 Act came into force and then applied for a permanence order.

Submissions for the respondent

[9] Counsel for the respondent submitted the test in Inco Europe Ltd v First Choice Distribution (supra) was met. The intention had been to replace freeing orders with permanence orders. It would have been obvious to Ministers that proceedings for a freeing order in dependence at the appointed day might not be concluded within a year from that date. Per incuriam the draftsman of the Order had failed to provide for that situation. It could not have been intended that on 28 September 2010 a pending application should be made pointless. To avoid that absurdity, words should be read into the 2009 Order to provide that a freeing order granted after 28 September 2010 was to be deemed to be a permanence order. That involved no breach of article 8 of the Convention.

Conclusions

[10] In my opinion, the gap in the Order to which I have referred has arisen per incuriam. Making the charitable assumption that any application for a freeing order could be conducted expeditiously, and bearing in mind the possibilities of appeal, I think that it is inconceivable that the Scottish Ministers could have imagined that every such application made before the appointed day would be concluded by 28 September 2010. If there was a genuine possibility that such an application might not be concluded before 28 September 2010, I can see no reason why the proceedings should be rendered futile on that date by an inflexible cut-off provision. The obvious explanation of the problem in this case is the inadequate draftsmanship of the Order.

[11] The next question is whether we can grant redress for the draftsman's failure. The answer is to be found by applying the principles in Inco Europe Ltd v First Choice Distribution (supra) which this court has adopted and applied (Scottish Water v Clydecare Ltd 2003 SC 330; BP Oil (UK) Ltd v City of Edinburgh Licensing Board 2011 CSIH 29; cf Aberdeen City Council v Wokoma 2002 SC 352; D Petrs 2003 SLT 1323). I need not quote the familiar statement in the speech of Lord Nicholls of Birkenhead in that case. It is sufficient to say that, in my opinion, we can be abundantly sure (1) as to the intended purpose of the Order; (2) that by inadvertence the draftsman failed to give effect to that purpose in the provisions in question; and (3) as to the substance of the provision that the Order would have made, although not necessarily the precise words that would have used in the Order, if the drafting error had been noticed. The plain purpose of the transitional provisions was that if an application for a freeing order was in dependence on the appointed day, and if the application was thereafter granted, the child would, if necessary, be deemed to be subject to a permanence order after 28 September 2010. I therefore agree with the reasoning of the sheriff and with his conclusions.

[12] As to the words that we should read into article 17(1), I agree with counsel for the respondent that it would be sufficient for the disposal of this appeal if that provision were held to mean that if an application for a freeing order current at the appointed day were granted after 28 September 2010, the child should then be treated as if he were subject to a permanence order. I am satisfied that this reading of article 17(1) will have no repercussions on any other provision in the 2009 Order.

[13] In his Opinion, which I have seen in draft, Lord Hardie raises an important matter regarding the procedure by which the Order in this case was made. I agree entirely with Lord Hardie's observations.

Disposal

[14] I propose to your Lordships that we should refuse the appeal and adhere to the interlocutor appealed against.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hardie Lord Marnoch	[2011] CSIH 43 XA30/11 OPINION OF LORD HARDIE in the appeal by (1) IO and (2) LO Appellants: against ABERDEEN CITY COUNCIL Respondent; _______

For the appellants (1) S A Bell; Drummond Miller

(2) Brabender; Balfour and Manson

For the respondents: Kelly, QC; Morton Fraser

7 July 2011

[15] I agree with the Opinion delivered by your Lordship in the chair and that for the reasons given by your Lordship this appeal should be refused. However, I wish to add a few observations of my own.

[16] As is apparent from your Lordship's Opinion, the difficulty in this case has arisen because of the inadequate draftsmanship of the 2009 Order. From counsel's submissions it appears that there is a practice within the office of the Solicitor to the Scottish Executive that commencement orders are drafted within that department by persons other than parliamentary draftsmen. We were also advised that the 2009 Order was treated as a commencement order and, accordingly, was drafted by someone who was not a parliamentary draftsman. If that is truly the case, it highlights a practice which the Scottish Parliament might wish to address.

[17] As is apparent from its terms, the 2009 Order is not a simple commencement order. Its title confirms that it also deals with transitional provisions as well as savings. As this case clearly illustrates, transitional provisions can, however, have considerable significance and, in the present context, for children, in whose interests decisions require to be taken without undue delay to remove uncertainty and to provide future stability. In the present case the sheriff was satisfied that the evidence had established that between 12 March 2007 and 28 April 2008, when HMCO was aged between 8 and 34 months, HMCO sustained numerous injuries, including scalding to the left side of his face, fractures to his right collar bone and to his tibia and fibula, bruising and cuts, as well as injuries on more than one occasion to his penis and scrotum. The first named appellant was responsible for the fractures to the tibia and fibula and for the injuries to the child's penis and scrotum which were caused by non-accidental trauma. If the present proceedings were to be rendered futile because of the poor draftsmanship of the 2009 Order, fresh proceedings would be necessary resulting in considerable delay before this child could lead a settled life in a safe environment.

[18] The Scottish Parliament might thus wish to review its procedures and those of the Executive to determine whether it is appropriate that transitional provisions of substance should be deemed appropriate for inclusion in commencement orders which are not drafted by skilled parliamentary draftsmen and, moreover, are not subject to any parliamentary scrutiny. On the whole, one might expect the use of commencement orders to be restricted to the implementation of a ministerial decision to bring into effect certain provisions of an Act of the Scottish Parliament on a particular date. Such a restricted use would respect what I consider to have been the original intention of a commencement order. If the use of commencement orders were so restricted they could be drafted by persons other than parliamentary draftsmen and would not require legislative scrutiny. But other orders, including those containing transitional provisions, should perhaps be subject to a more rigorous regime including the use of parliamentary draftsmen in their preparation and the scrutiny of their provisions by the legislature. Had that occurred in this case, it is unlikely that the errors in the 2009 Order would have occurred, thereby avoiding the lengthy delays of this litigation and the consequent anxiety for all concerned with the welfare of HMCO.

[19] I am reinforced in my view about the inappropriateness of combining commencement orders with transitional and savings provisions by the observations of Gregor Clark CB, parliamentary counsel, when he gave evidence on 27 October 2009 about the Interpretation and Legislative Reform (Scotland) Bill to the Subordinate Legislation Committee of the Scottish Parliament. On that date he was appearing along with Patrick Layden QC, Commissioner, on behalf of the Scottish Law Commission. At column 726 of the Official Report of the proceedings Mr Clark commented:

"We were concerned about section 8(3), which contains a power to tag on to commencement orders transitional, transitory and saving provisions. We are not sure about the purpose of that, as commencement orders usually are subject to no procedure. Does that section suggest that transitional amendments should be made without procedure? That seems to be utter nonsense, because transitional arrangements can have a serious impact on people's lives."

Although Mr Clark's concerns were expressed in the context of a draft Bill about the future intentions of the Scottish Parliament to incorporate transitional provisions in commencement orders, in reality the Scottish Executive had already adopted that approach insofar as the 2009 Order was made four months before Mr Clark's appearance before the Subordinate Legislation Committee.

[20] It appears that the lack of parliamentary scrutiny of the 2009 Order coupled with its drafting by someone lacking the skills of a parliamentary draftsman may have had a serious impact upon the life of HMCO. The inept drafstmanship has led to an unnecessarily prolonged litigation in the course of which we were advised that prospective adoptive parents had withdrawn their interest in the child. I make my observations in that context and in the hope that in future all transitional provisions will receive the attention they deserve.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hardie Lord Marnoch	[2011] CSIH 43 XA30/11 OPINION OF LORD MARNOCH in the appeal by (1) IO and (2) LO Appellants: against ABERDEEN CITY COUNCIL Respondent; _______

For the appellants: (1) S A Bell; Drummond Miller

(2) Brabender; Balfour and Manson

For the respondents: Kelly QC; Morton Fraser

7 July 2011

[21] I agree with the Opinion delivered by your Lordship in the chair and that this appeal should be refused.

[22] I also agree with the observations which Lord Hardie has seen fit to make in this case.