Scottish Sheriff Court Decisions

E30/04 S E23/05

JUDGEMENT OF SHERIFF JOHN HORSBURGH

in the petitions for freeing orders by

MIDLOTHIAN COUNCIL

against

K.A.A.W.

Respondent

Act: John K Mundy, Advocate; Lindsays WS.

Alt: Alison N Stirling, Advocate; Drummond Miller WS.

EDINBURGH, 4 November 2005

The Sheriff: having resumed consideration of the cause, dismisses the petitions; discharges the hearing fixed for 27 February 2006 and days following; and reserves in the meantime all questions of expenses.

NOTE:

In these petitions freeing orders are sought in respect of C.W. and K.W., children born to the respondent of the same father. The respondent opposes their grant because she would lose the right to apply for contact, which she had with K. until autumn 2004 and with C. until spring 2005.

When they called for proof on 17 October counsel for petitioners moved for an adjournment or discharge on these grounds. Firstly, on 6 October it had been discovered that a witness, one of the petitioners' social workers, was on holiday until 18 October. Secondly, obtaining affidavits from certain other witnesses was to be undertaken by that same person, but this task had not been delegated to him, since it was thought that he was absent on holiday when in met he was not. Thirdly, the report from the psychologist instructed on behalf of the petitioners had not yet been completed as difficulties had been encountered in interviewing the necessary persons. In the absence of the report it would be difficult to run the proof.

That motion was opposed formally by counsel for the respondent. She referred to the respondent's continuing desire for contact, to the prejudice she would suffer by further delay, and to the fact that much of the documentary material bad been produced late. She said many of those from whom the petitioners sought to obtain affidavits had been cited as witnesses by the respondent. However, she recognised that there would be difficulties in conducting the proof without either side having seen and, considered the report referred to. She proposed that a Human Rights issue, of which notice had recently been given to the petitioners, could now be argued.

I was very unimpressed by the reasons supporting the motion for an adjournment or discharge, but I had to accept that both sides would face difficulties in presenting the evidence in the absence of knowledge of one side's expert's view. In those circumstances I decided that it would be appropriate to hear debate on the Human Rights issue, that course not being opposed by the petitioners, and to discharge the diet of proof.

In essence, the submissions for the respondent in relation to both petitions were that seeking freeing orders was (1) a disproportionate step which was unnecessary to protect the rights of the children, (2) and not human rights-compliant. In addition, C's petition breached art 8 of the European Convention on Human Rights in that the adoption panel which on 1 March 2005 had decided that the matter should proceed by a freeing order, had in the absence of a quorum, not been properly constituted. Reference was made to Johansen v Norway (1997) 23 EHRR 33, Görgülü v Germany [2004] IFCR 410, Aberdeen City Council v R 2004 SLT (Sh Ct) 53. West Lothian Council v McG 2002 SC 411, City of Edinburgh Council v D 2001 SLT( Sh Ct) 135, andDzmdee City Council v M 2004 SLT 640.

In short, the petitioners' contentions were that the decisions to be made were fact-dependent, and the occurrence of an infringement of art 8 could only be determined after enquiry. No case had held that granting a freeing order, or depriving a birth mother of contact, was a contravention of art 8, without enquiry into the facts. In Johansen the European Court had taken a particularly stringent approach, but the over-riding concern was the welfare of the children. While it was accepted that there had apparently not been a quorum at the meeting of the adoption panel in Caitlin's case, that was merely a procedural irregularity which did not breach human rights legislation. It could be taken into account in deciding whether or not a case for the reasonable withholding of consent had been made out. Reference was made to the cases referred to above, and to Reed & Murdoch, A Guide to Human Rights Law in Scotland § 6.20.

After the case bad been taken to avizandum, on 20 October the petitioners' solicitors wrote to the Sheriff Clerk advising that further investigations had revealed that it may have been incorrectly conceded that the adoption panel which met on 1 March in C's case had not been quorate. In light of that I put the case out for further hearing on 3 November, when I was addressed further by both counsel. After discussion it was agreed that the additional argument in C's case directed to this issue could only be decided on after proof. In these circumstances I have confined my decision to the respondent's general submission which relates to both petitions.

I deal first with the proportionality and necessity argument.

Article 8(2) of the European Convention on Human Rights provides that the right to respect for family life shall not be interfered with except where such interference is in accordance with the law. and is necessary for the protection of the rights and freedoms of others. Granting freeing orders would constitute an interference with the respondent's right to respect for her family life. That is because they would prevent her seeking contact, and would thus conflict with one of bet human rights. While granting such orders would be in accordance with the law, since the Adoption (Scotland) Act 1978 makes provision for that being done. I have come to the view that such steps are not necessary for the protection of the rights and freedoms of others, in particular the children. That is because our law offers alternatives, such as a petition for adoption. In such a process it would be open to the respondent to seek contact. That would allow the prospect of recognition of her right to family life. That would not affect the children's rights and freedoms adversely. It would then be for the court to decide if, on the facts, contact with the respondent would be in the interests of the children. In that way the tension between the rights and freedoms of the children and the rights of the respondent would be resolved after inquiry. Freeing orders would prevent that happening, and are not necessary for the protection of the children's rights and freedoms, since that can be achieved by adoption orders. But their effect for the respondent would be very different, since she would be deprived automatically, and without an opportunity for factual inquiry, of one of the rights of her family life.

These petitions raise this issue sharply, in a way which has not previously happened. I was informed that in a further appeal commencing on 18 October in Dundee City Council v M (reported on another point at 2004 SLT 640) the issue of whether freeing is a breach of human rights law might be raised. City of Edinburgh Council v D recognised there is a problem with whether freeings are compatible with that legislation. In West Lothian Council v McG the court did not need to decide the issue, since the Human Rights Act did not apply to that case, but it was noted that the submission for the Scottish Ministers recognised that there may be an issue of HR compatibility. In addition, both the Lord Justice Clerk and Lord Reed made observations about the appropriateness of having recourse available to a birth-parent in our system similar to that which exists in English law. I attach considerable weight to these. The Adoption Policy Review Group has recommended the amendment of section 11 of the 1995 Act to remove the prohibition on birth-parents seeking contact after adoption. However the Scottish Executive has favoured a more radical overhaul of adoption legislation. The European cases also tend to support the conclusion that deprivation of parental contact may involve a breach of art 8. In Johansen v Norway the court held that taking a child into care did not give rise to a breach of art 8, but there was a violation of these rights in so far as it deprived the mother of her access and parental rights. In Görgülü v Germany it was made clear that suspending access rights rendered any form of family reunion and the establishment of any kind of further family life impossible, and severing such ties could only be justified in very exceptional circumstances. While these eases were both decided after enquiry into the bets I did not consider that to be necessary in the present petitions. It is accepted as a matter of fact that the making of freeing orders would prevent the respondent exercising one of her parental rights. In circumstances where there is available another process, adoption, which offers equal protection of the children's rights and freedoms, but also leaves open the prospect of a recognition of the respondent's competing right, I have come to the view that to grant freeing orders would infringe the respondent's art 8 rights.

For these reasons I decided that granting these freeing petitions would not be 1awfu1, and that they should be dismissed.

I was not addressed on the matter of expenses, and these I have reserved meantime.