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Dundee City Council v. J.W. [2003] ScotSC 3 (20 January 2003)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

DUNDEE CITY COUNCIL, 12 City Square, Dundee. Applicants.

Against

J.W. Respondent.

Application for an order declaring C.M., free for adoption.

For the Applicants - Mrs C Evans.

For the Respondent - Mr N Whelan.

For I M (Father) - Mrs K Price.

After sundry procedure including a number of procedural Hearings Mr Whelan lodged Answers specifying grounds of opposition in order that he might introduce a preliminary argument that the applicants have acted in a manner contrary to the European Convention on Human Rights and that their actings were such that the procedures were fatally flawed and the application should be dismissed. I heard arguments on the answers on 15 January 2003.

The following authorities and cases were referred to: -

City of Edinburgh v D 2001 SLT 135.

W v The United Kingdom (1988) 10 EHRR 29.

McMichael v The United Kingdom (1995) 20 EHRR 205.

Dundee City Council v Sharon Murray December 2002 (Sheriff K W Pritchard) (Unreported)

European Convention on Human Rights, Article 8.

Reed and Murdoch, A Guide to Human Rights in Scotland.

Mr Whelan opened his argument by referring to the case of W v the UK and said that on 14 February 1980 the local authority assumed parental rights over a child and did not inform the parents of its intention to do so. On 31 March 1980 the Fostering & Adoption Committee, without reference to the parents, considered and approved long-term foster care measures. That Committee was told the parents disagreed. The UK argued that the parents' views were before the panel at that stage. The court decided that it would give weight to the fact that the parents were not invited and the argument of proportionality was not sound. The UK could not justify why they had not been invited.

In this present case there was no justification for the parents not being invited to the meeting of the applicants Adoption and Permanence Panel. The only reason for the parents not being there would appear to be that it was a policy decision. The reality is that the decision taken by the Panel lays out the local authority's stance on the position of adoption. Documents are produced at that meeting but none were disclosed to the family. Accordingly the family do not know what matters were referred to so they could be in a position to comment when the case subsequently called before the Children's Panel. There may have been errors in fact relating to the family but that would not be known. At the meeting of the Children's Panel after the Adoption and Permanence Panel the parents were not given the minutes of the Adoption and Permanence Panel but simply the decision and the reasons for the decision. At that stage they could have had an effective remedy by way of appeal but as the function of the Children's Panel was to provide advice to the sheriff any appeal would be against that decision only. Without full access to the papers upon which the decision was made the parents would be hampered in such an appeal.

As far as he was aware there was no law or regulation which provided for the exclusion of the parents but it was merely a policy decision taken either by the applicants or by all local authorities following appropriate guidance.

In W v UK at paragraph 64 it states, "In the court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8."

The applicants Production 165 was not a verbatim Minute of the meeting but merely a summary and this had not, in any event, been seen by the respondent's solicitor before this action was raised. Therefore the parents had no effective remedy until the productions were lodged in this freeing Application and the Minute, 165, was seen.

Therefore while they may have had a remedy it could not be properly argued as they did not have full information. Much of the information in the Minute was, in the event, factually inaccurate and therefore the procedure was flawed. If all the information had been accurate and disclosed there may not have been a recommendation.

In the case of McMichael v UK the court accepted the reasoning in W v UK and this led directly to changes in the way Children's cases were handled.

Finally he referred to the case of Murray which is unreported but currently subject to appeal to the Inner House of the Court of Session. In that case Sheriff Pritchard had heard two weeks evidence from one witness and asked to be addressed on possible breaches of Articles 6 and 8 of ECHR. In that case the Adoption and Permanence Panel had again made a recommendation without the input of the parents. The applicants argued that this was a recommendation only but in reality the sheriff found that this was a "decision" because what happened was that there was a reduction of contact by the natural parents to nil. If it was not a "decision" there would have been no reason to reduce contact.

Mrs Price for the natural father adopted these arguments and went on to say and that the absence of the parents was a fundamental breach. In the Murray case the senior social worker had confirmed in evidence that two vital elements given to the Adoption and Permanence Panel were incorrect. That having happened simply illustrated what could go wrong and how it would affect the procedure thereafter.

In response Mrs Evans said that there was no duty imposed by legislation that the Adoption and Permanence Panel should be independent although there were some independent members. The rules governing the operations of the Panel were silent on the question of the attendance of the birth parents. The Panel includes employees of the local authority but also has independent members although there is no provision for attendance of parents.

In response to the point about Production 165 she said that the information that the Adoption and Permanence Panel would be given would also be presented to the Children's Hearing although she conceded that Production 165 was not lodged for the Children's Hearing.

She said that she would seek to distinguish this case from W v UK largely because of the function of the Adoptions Committee in England. She referred to Paragraph 67 of the decision and noted that since the child had previously been in voluntary care the resolutions which had been passed on 16 August 1979 altered the whole basis of the legal relationship between him, his parents and the authority. In the current case the Adoption and Permanence Panel did not alter any of the parental rights or responsibilities which remained in place until determined by a court. There was also no evidence in the case of W v UK that the applicant and his wife were informed or consulted in advance concerning the decision to place the child with long-term foster parents with a view to Adoption of the subsequent approval by the Adoption and Foster Care Committee. They were not advised for some time that the decision had been taken and may not have been told of the full implications. There may have been some discussion between them and social workers since social workers were able to tell the Committee the parents disagreed with this view. To this extent therefore their views were before the authority at least at that time.

In this case there was a great deal of consultation, the parents were aware of the meeting of the Adoption and Permanence Panel and indeed requested to be there although they were told by the Social work Department it was not possible.

What comes from the Adoption and Permanence Panel is not a decision but a recommendation albeit it was accepted that the recommendation was not from an independent Panel. It is a recommendation to take the adoption process forward and get a determination from another authority (the court). The recommendation also goes through the Children's Hearing system which is fully compliant with ECHR. There is a right of appeal from the Children's Hearing and the move to prospective adoptive parents can also be appealed. The Adoption and Permanence Panel cannot stop contact.

Further the case of W v UK predates the changes to procedure brought about in terms of the Children (Scotland) Act 1995 and also the obligations under ECHR to the Children's Hearing system.

She then turned to consideration of City of Edinburgh Council v D. This case concerned freeing for adoption but also proposals for contact and to that extent is not entirely on all fours with the current case but certain aspects of it reflected situation here.

Paragraphs 76 to 81 of the judgement deal with the independence of what is termed in that case the Approval and Matching Panel although often called the Adoption Panel. I understand the Adoption Panel to the equivalent of the Adoption and Permanence Panel here. It would be true to say that Sheriff Morrison expresses some criticism of the composition of the Panel in his case but he goes on to say at paragraph 80

"I do not consider that the Adoption Panel must be independent from the Adoption Agency in the sense that no member of the Agency should be a member of it." He also refers to the fact that there is provision for independent members and suggests that such persons should be included. Although in that case he found it unsatisfactory that the Adoption Panel had members on it related to the case the decisions reached to recommend Adoption and to match current foster parents for adoption were decisions which he also would have reached.

Turning to paragraph 70 of the decision she said "What counsel for the first respondent then did was to examine each stage of the process, from M being taken into care to the point of the application for freeing, analysing the respects in which Article 8 (1) was allegedly breached in relation to the first respondent's rights. There was no regard to the first Respondent's obligations or the best interests of M.

(71) It does not follow therefore that because a particular decision in the process may be criticised as in breach of the Convention, that all that follows that the decision is invalidated."

Mrs Evans argued that that case was worse than the present case in respect that the Panel had members of the same social worker team whereas here that was not the case. She invited me to look at the whole best interests of both the child and parents and not nit-pick every decision in the process. It was clear from the whole of the judgement that the sheriff had heard evidence and she argued that this be done in this case also.

She could not see what benefit there would be to anyone in further delay. That applied equally to parents and child. It would keep the matter in the Children's Hearings process and the parents would still have responsibility to promote the welfare of the child. Therefore reasonable parents would want the case determined one way or the other. There was no benefit to the child in delay except she would remain where she was and therefore might become more attached.

In response Mr Whelan said that once the recommendation or decision as he preferred it was taken there was no mechanism for it to stop till the matter arrived at court. That would mean that there would be a time when there would be reduced contact with no remedy until the issue went to proof. If the foundation was flawed then it was all flawed. The parents would not know if the foundation was flawed as they were not invited to attend in the decision-making process. The case law means that parents must be involved and it was not enough for someone to say that the parents would be opposing.

I challenged Mr Whelan on the suggestion that there was no mechanism for the process to stop. The issue had been before the Children's Hearing on many occasions and on most if not all these occasions his client had been represented by a solicitor, although I accepted it was not from his firm. The decisions of the Children's Hearing could be appealed to the sheriff and when I asked why there had been no such appeals he was unable to answer. I put it to him that while an appeal against, for example, the decision of the Children's Hearing following the Adoption and Permanence Panel may not have brought the process to an end, it would have afforded the parents an opportunity to make their point about exclusion from the proceedings of the Adoption and Permanence Panel. If their appeal had been successful the matter would have had to go back to that Panel, they would have been involved and should have received all papers. Again as he was not the adviser at the time Mr Whelan could not answer that question.

He sought to distinguish the case of City of Edinburgh Council v D on the basis that the decision was made after evidence (although this is precisely the point at issue here namely whether this argument should prevent the proceedings or whether it should form part of legal submissions after evidence is heard).

On delay, if rights were being breached there was no excuse and any delay was neither here nor there. By trying to enforce their ECHR rights the parents cannot be criticised for delaying what follows. He did not accept that they were sufficient checks and balances in the system to redress any possible breach of human rights.

I had raised the question of balancing the interests of the parents with the interests of the child and Mrs Price commented that the child's age, nearly three, meant that she would not be as prejudiced as an older child if the delay means that she stays where she presently resides.

Decision

Mr Whelan raised this matter at this stage of the proceedings as a result of the decision of Sheriff Pritchard in the case of DCC v Murray. I decided that it was appropriate to consider the issue at a Procedural Hearing prior to the commencement of a proof and I heard submissions on 15 January 2003. The issue to be argued was outlined in the answers lodged by the respondent and these raised a question under Article 8 of ECHR. In the Murray case there was also an argument under Article 6 and while this is not specifically raised in this case the arguments presented touch on that Article also. Put simply the issue was whether there was a breach of the parents Article 8 rights and if so, whether that breach so fundamentally flawed the proceedings that the application should be dismissed because of the breach. In other words, was the alleged breach, if established on submissions, a knockout blow to the application or should Article 8 arguments be heard after the conclusion of evidence along with the other legal submissions?

In the Murray case Sheriff Pritchard reached the conclusion that the parents rights under Articles 6 and 8 had been breached and he dismissed the petition. In this case the solicitors for both parents invited me to do likewise. I should perhaps say at this point that Mrs Price was present for the father but as she did not have legal aid had not been able to prepare to the same extent as Mr Whelan but she had been in the Murray case so her knowledge of the arguments there was of assistance.

There are in my view important areas of distinction between the two cases. As I understand it the respondent in this case was legally represented through most if not all of the procedures occurring before the Children's Hearing. It is not immediately clear if the legal representation was on behalf of both mother and father but as Mrs Price simply adopted the arguments put forward on behalf of mother I have presumed that on this issue there was no distinction to be drawn between mother and father and that, in essence, they had a common interest.

Lord Reed and Jim Murdoch in A Guide to Human Rights Law in Scotland at paragraph 6.23 summarise the decisions in W v UK and McMichael v UK. In discussing childcare cases the authors state "For example, in W v United Kingdom, the European Court of Human Rights considered that such decision-making was both sensitive and difficult, and it was thus prepared to accord the local authority a measure of discretion. However, acceptance of a margin of appreciation on the part of decision-makers did not allow the state to exclude the natural parents from deliberations. Since a decision to place a child in care is likely to restrict significantly or even terminate the link with its natural parents, the decision-making process must be such as to ensure that the views of the parents can be ascertained and duly considered. In McMichael v United Kingdom, the court reiterated that failure to accord the parents of a child subject to care proceedings taken through the Scottish system of Children's Hearings the requisite procedural safeguards could also give rise to an Article 8 issue. While access to a court for the determination of civil rights and obligations was required by Article 6, ensuring "respect" for family life also implied the provision of fair decision-making procedures during purely administrative proceedings under Article 8. Indeed, there may be a positive obligation on the state to make information held by it available to parents even in the absence of any request."

Further at paragraph 6.38 the authors state "procedures in child care or custody cases must allow parents adequate involvement in the decision-making process and also be carried out with sufficient expedition so as to avoid undue delay since this may lead to de facto determination of child care questions through the establishment of new ties with any foster parents or other carers."

The earlier case was an English case and I was not addressed on the English legislation at the relevant time and therefore cannot comment on the applicability of the detail of the judgement to this case. For example I do not know if the exclusion of parents from certain aspects of the decision-making process in England at that time arose from a statutory enactment or simply from some practice adopted by Adoption Agencies in England. The case also predates by some time the Children (Scotland) Act 1995.

From a glance at certain of the productions in this case it is clear that one or both parents participated in a number of aspects of the administrative procedures including Children's Hearings. What cannot be ascertained without hearing evidence his what paperwork they were given for any of these procedures or the extent of their participation. What is clear however is that one or both parents had legal representation at most if not all the Children's Hearings. The decisions of the Children's Hearings were capable of appeal to the sheriff. There were no such appeals. The issue of Article 8 rights was a live issue at least from the time of the Children's Hearing following the recommendation of the Adoption and Permanence Panel. Papers were issued to the parents for that Children's Hearing but it is not clear without the hearing of evidence what papers were issued, whether they were the same papers available to the Adoption and Permanence Panel or whether it was a full set of papers. It appears that the mother had legal representation at the Children's Hearing and any alleged breach of Article 8 rights could and perhaps should have been raised at that time by way of an appeal to the sheriff against the decision reached by the Children's Hearing.

It is abundantly clear from a glance at the productions that one or both parents have participated throughout this process. They had attended various meetings and it appears that they have expressed their views throughout the process. It cannot be said therefore that they were entirely excluded from the decision-making process. From the limited information available at this time and without evidence it might be that the only meeting from which they were excluded was that of the Adoption and Permanence Panel. In City of Edinburgh Council v D Sheriff Morrison indicates that changes to the Regulations or procedures of such groups as the Adoption and Permanence Panel would be a matter for the Scottish Executive or the Scottish Parliament. I agree that it might be appropriate to review the whole procedure involved in freeing for adoption but decisions require to be taken by Adoption agencies, Children's Hearings and the courts conform to legislation and rules applicable today. The overriding principal as far as the parents are concerned is that they should be involved in the decision-making process. In this case from the limited information available without hearing of evidence the parents appear to have been involved at every stage albeit they were excluded from the Adoption and Permanence Panel. Their position was well documented before that Panel and they were present and represented at the Children's Hearing following the Panel. They had the right of appeal to the sheriff after the Children's Hearing and did not exercise the right.

Very little was said in the submissions about the rights of the child and how these rights should be balanced against any rights of the natural parents. The child in this case is nearly three. She was first accommodated by the Social Work Department in May 2000 and from then until October 2000 that Department worked with parents towards rehabilitation. She was returned to the parents in October 2000 but rehabilitation attempts failed in March 2001 when she was made the subject of a Child Protection Order. Since March 2001 she has been in the care of the applicants. She has been with her current carers who are the proposed adopters since May 2002. From the information available to me she is thriving. It is vital therefore in her interests that a decision is made in this application, be that a decision to free for adoption or to dismiss the application. If the decision is to be to dismiss the application then any unnecessary delay would be potentially detrimental to her interests given that she is, apparently, well settled with her potential adoptive parents.

I fully accept that the parents in this case are entitled to argue that their Article 8 rights may have been infringed by their exclusion from part of the decision-making process. The only question is when that argument should be heard. Bearing in mind that I require to balance the interests of the parents on the one hand and child on the other with the interests of the child being paramount, further delay in this process is no ones interest. In particular it is not in the interests of the child. If I was to accept Mr Whelan's argument and dismiss the application I imagine that the applicants would be in the position that they would require to start again at the Adoption and Permanence Panel. It is now eleven months since the decision of the Adoption and Permanence Panel giving rise to this argument. It could be anticipated that it would be at least the same length of time until a fresh application to free for adoption was before the court. Indeed it could be considerably longer if the parents exercise rights of appeal against decisions of the Children's Hearing. Such a delay could not be said to be in the interests of the child.

I am not accordingly prepared to dismiss this application without evidence being heard. The Article 8 issues may well be a relevant and important argument following the hearing of evidence and indeed it may be that such evidence will strengthen the arguments either way and also address the rights of the child under ECHR something which was not addressed in the course of the these submissions. The respondent is not prejudiced in any way by the proof proceeding. If following proof the application is granted she has the right of appeal and any Article 8 issue can be argued in that appeal. I would stress that I am not making a ruling on the submissions which I heard save that I am not prepared to dismiss the application without hearing evidence. In the case of Murray Sheriff Pritchard had heard evidence before asking to be addressed on the ECHR points. In City of Edinburgh Council v D Sheriff Morrison heard evidence. Without hearing evidence and in particular hearing evidence about the Adoption and Permanence Panel and the participation of the parents in the decision-making process throughout it would be impossible to reach any view on whether or not Article 8 rights had been breached far less reach a view that the proceedings were so fundamentally flawed that he application should be dismissed. Also, without hearing evidence, it would be difficult if not impossible to balance the rights of the child against the rights of the parents. The matter should therefore proceed to proof as soon as possible.