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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> CM (A Child), Re [2010] ScotSC 14 (09 April 2010)
URL: http://www.bailii.org/scot/cases/ScotSC/2010/14.html
Cite as: [2010] ScotSC 14, 2010 Fam LR 89, 2010 GWD 25-474
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Sheriffdom of Lothian and Borders at Edinburgh
Note
by
Sheriff Kathrine EC Mackie
In the application for a Permanence Order with authority to adopt under section 80 of the Adoption and Children (Scotland) Act 2007
By
The City of Edinburgh Council City Chambers High Street Edinburgh EH1 1YJ
In respect of the child CM (18/09/07)
Respondents CAM(mother) and JG (father)
Act: Stormonth City of Edinburgh Council
Alt: Gilmour Hughes Walker Edinburgh
Aitken Thorley Stephenson Edinburgh
PO16/09 & PO16_09A
Edinburgh 9th April 2010
The Sheriff, having decided not to refer the child's case to the Principal Reporter and having heard parties on the second respondent's motion assigns 23rd April 2010 as a hearing with Edinburgh Sheriff Court House 27 Chambers Street Edinburgh.
NOTE
[1]. The Petitioners, the City of Edinburgh Council, presented on 22nd December 2009 in respect of CM, a petition
craving a Permanence Order in terms of section 80 of the Adoption and Children
(Scotland) Act 2007. In addition to
the mandatory provisions ancillary provisions are craved including authority
for the child to be adopted.
[2]. The child is subject to a Supervision
Requirement in terms of section 70 of the Children (Scotland) Act 1995 whereby she resides with
foster carers.
[3]. CM's parents oppose the granting of a
Permanence Order. Proof has been fixed to take place on 16th August 2010 and the four ensuing days.
[4]. On 15th February 2010 a report by a Children's
Hearing was lodged in terms of section 95(2) of the 2007 Act. The Children's Hearing
propose modification of the Supervision Requirement by changing CM's residence
from her current carers to a new prospective permanent placement and by ceasing
face to face contact with her parents.
[5]. At a hearing on 26th March 2010 the petitioners' agent moved
that the child's case be referred to the Principal Reporter in terms of section
96(3) of the 2007 Act. The Respondents' agents opposed the motion firstly, on
the ground that the proposed modification was not in the child's best
interests, secondly that such modification would be prejudicial to their
respective positions in the present petition and may pre-empt the outcome and
thirdly that the legislative provisions are in any event unclear.
[6]. It was acknowledged that prior to the
introduction of the 2007 Act a Children's Hearing could make orders imposing or
modifying a Supervision Requirement notwithstanding that an application had
been presented to the Court for a parental responsibilities order or an order
declaring a child free for adoption and that by such variation or modification
a child's residence might be altered during such proceedings. In particular a
child might be placed with prospective adopters and decisions made about the
exercise of contact by a child's natural parents.
[7]. In terms of section 96(2) of the 2007 Act
"A supervision requirement in respect of the child may not be (a) made or (b)
modified under paragraph (c) or (d) of subsection 9 of section 73 of the 1995
Act until the application (for a permanence order or variation of such an
order) is determined (or as the case may be withdrawn or abandoned)."
[8]. Accordingly it would appear that
Parliament has decided that Children's Hearings should no longer have power to
make or modify supervision requirements during the course of proceedings such
as the present. In terms of section 95(2) of the 2007 Act where a Children's
Hearing proposes to make or modify a supervision requirement before an
application for a permanence order is determined they must prepare for the
court a report containing such information as Regulations may prescribe. The
Respondents took no issue with the information contained within the report from
the Children's Hearing.
[9]. In terms of section 96(3) of the 2007 Act
section 96(2), that is the prohibition against the making or modification of a
supervision requirement, does not apply "if the court...........refers the child's
case to the Principal Reporter (whether following receipt of a report under
section 95 or otherwise).".
[10].
No
criteria are set out in the 2007 Act for determination of the circumstances in
which the court may or should refer the child's case to the Principal
Reporter. There is no definition of "the child's case". It is not clear
whether what is intended by "the child's case" is all the circumstances relating
to the child or only some particular aspect of the case. The nature of the
application for a permanence order is such that the whole circumstances
relating to the child and what is in the child's best interests are being
considered by the court. Section 84 of the 2007 Act sets out conditions and
considerations to which the court must have regard before an application for a
permanence order may be granted. In terms of section 97 of the 2007 Act a
court may make such interim order as it thinks fit and if the provisions of the
order conflict or are inconsistent with a supervision requirement the
provisions of the order prevail. In these circumstances and taken together
with the prohibition against the making or modification of a supervision
requirement during proceedings, in my opinion, it is a reasonable
interpretation of sections 95 96 and 97 that Parliament intended that the court
should be the principal forum for making decisions in relation to the child
during the process of determining an application for a permanence order.
[11].
Section
96(3) of the 2007 Act appears to envisage circumstances in which, whatever is
meant by "the child's case", a referral may be made to the Principal Reporter.
These circumstances do not appear to be restricted to where the Children's
Hearing propose the making or modification of a supervision requirement as set
out in a section 95(2) report. Indeed by not providing, as Parliament could
easily have done, that upon receipt of a report proposing the making or
modification of a supervision requirement the court may remit to the Children's
Hearing for implementation of their proposal the precise purpose of any
referral is less than clear. The prohibition against the making or
modification of a supervision requirement is removed upon a referral being made
to the Principal Reporter. Accordingly it would appear to be open to a
Children's Hearing to make whatever supervision requirement or modification
they see fit, whether or not that was what was proposed in their report. In terms
of section 73(8)(a)(iva) of the 1995 Act upon a referral in terms of section
96(3) of the 2007 Act the Principal Reporter shall arrange a Children's Hearing
"to review" any supervision requirement. The Children's Hearing so convened
may, in terms of section 73(9) of the 1995 Act, continue the review for further
investigation, terminate or vary the requirement, insert a requirement which
could be imposed in terms of section 70(3) or continue the requirement with or
without such variation or insertion. The Children's Hearing would not appear
to be bound either by the terms of any report made by an earlier and probably
differently constituted Hearing or the court.
[12].
The 2007
Act is silent as to whether if a referral is made to the Principal Reporter the
prohibition against making or modifying a supervision requirement flies off
permanently or applies again after any decision made by a Children's Hearing
arranged by the Principal Reporter following the referral. It was suggested by
the Petitioners' agent that any further proposed modification would require
another section 95(2) report to the court but that would only apply if the
prohibition in terms of section 96(2) of the 2007 Act is reinstated. Since
there is no express provision to that effect and section 96(3) expressly states
that the prohibition in section 96(2) does not apply "if the court.....refers the
child's case to the Principal Reporter" I do not think that it can be presumed
that the prohibition is reinstated. The provision is not restricted to the
proposed modification in the section 95(2) report and the absence of any
definition of what is meant by "the child's case" seems to me to mean that the
prohibition flies off upon a referral being made so that the circumstances
relating to the child are to be considered and determined by the Children's
Hearing.
[13].
Rules of
Court have been promulgated by the Act of Sederunt (Sheriff Court Rules
Amendment)(Adoption and Children (Scotland)
Act 2007) 2009. Rule 51 provides for procedure following receipt of a report
from a Children's Hearing in terms of section 95(2) of the 2007 Act. Provision
is made for intimation and the lodging of a form of response by persons who
wish to oppose the proposals of the Children's Hearing. In terms of rule 51(3)
the Sheriff shall consider the report and any form of response and decide
whether to refer the child's case to the Principal Reporter. A hearing may be
held to assist the Sheriff to decide what to do. Where he decides to refer the
child's case to the Principal Reporter in terms of rule 51(4) "he shall
pronounce an order to this effect which shall narrate in terms that he is
referring the child's case to the Principal Reporter". Where he decides not to
refer the child's case to the Principal Reporter he may make such other order
as he considers appropriate for the expeditious progress of the case. Notice
in terms of Form 25 is to be given to the Principal Reporter. Form 25 contains
two options, firstly intimating that the Sheriff has decided to refer the
child's case to the Principal Reporter and secondly intimating that he has
decided not to so refer and that the terms of section 96(2) of the 2007 Act
apply.
[14].
No rule
has been promulgated for a referral to the Principal Reporter other than
following receipt of a report in terms of section 95(2) of the 2007 Act. It
would appear that the Sheriff Court Rules Council envisaged a referral only in
the event that a Children's Hearing wished to make or modify a supervision
requirement.
[15].
The
petitioners' agent submitted that in referring the child's case to the
Principal Reporter the court should have confidence in the Children's Hearing
to act in the best interests of the child. If the Respondents were
dissatisfied with the decision of the Hearing an appeal would be open to them in
terms of section 51 of the 1995 Act. It has long been the view that the
appropriate forum in which to discuss and determine issues in relation to the
welfare of children is the Children's Hearing. The Respondents' agents
expressed concern that if the child's case was referred to the Principal
Reporter for review of the supervision requirement purportedly for a decision
on the proposals set out in the section 95 report the prospects of success of
any appeal may be undermined on the basis that the court may be seen to have
considered the proposals and given approval of them by deciding to refer the
case to the Principal Reporter. There may be force in that submission if the
purpose of the referral of the child's case to the Principal Reporter is for the
Children's Hearing to implement the modification of the supervision requirement
as proposed in the section 95 report.
[16].
If I am
correct in my interpretation of these provisions and the court is the principal
forum for decisions about the welfare of the child while an application for a
Permanence Order is being considered it is difficult to conceive of
circumstances when the court might refer the child's case to the Principal
Reporter. The court also has a duty to act in the best interests of the
child. It is open to the court to make interim orders and if while the
application for a Permanence Order is being considered changes are required to
the arrangements for the child whether that be place of residence, contact or
attendance at a particular school or otherwise an appropriate motion may be
made.
[17].
In this
case the modification proposed in the section 95 report involves the placement
of the child with prospective adopters and a cessation of such contact as is
being exercised by the Respondents. The petitioners crave authority to adopt
as an ancillary order. That is opposed by the Respondents and a decision has
yet to be made by the court following consideration of all evidence to be led
by all parties. If the petitioners take steps to promote a bond between the
child and prospective adopters and break or at least interfere with any bond
which may exist with the Respondents that may have a bearing on the ultimate
outcome. On the other hand if the child is not placed with prospective
adopters with whom she has now been "matched" that may delay the child's
development. The petitioners' agent advised that the child's current placement
was for a short term only and referred to the terms of section 83(1)(b) of the
2007 Act which provides that one of the conditions to be met before authority
to adopt is granted is that the court is satisfied that the child "has been or
is likely to be placed for adoption". Accordingly it is envisaged that the
child may already have been placed with prospective adopters when the court is
considering the application for a Permanence Order with authority to adopt. It
was submitted that it was in the child's best interests to move to a permanent
placement as soon as possible. To do so would not pre-empt the decision of the
court because even if the application were not granted it would not necessarily
mean that the child would return to live with the Respondents. However, it
appears to me that if the application or at least the crave for authority to
adopt were not granted the child's placement with prospective adopters would
not continue and the child would be faced with further disruption, a change of
carer and the potential damage to whatever bond she has with the Respondents.
There is no information to suggest that the child's current placement is in
jeopardy and that the proposed modification of the supervision requirement and
change of residence is for any purpose other than that prospective adopters
have been identified. Further there is no information to suggest that the prospective
adopters would not be available if the application is granted with authority to
adopt following proof.
[18].
Strict
time limits are imposed in terms of the rules of court. It is the duty of the
court, in accordance with the Practice Note No 1 2009, "to secure that all
applications and other proceedings under the Act are dealt with as
expeditiously as possible and with the minimum of delay". Accordingly there
ought not to be any "prolonged delay" which appears to be the concern of the
curator ad litem. On the other hand it cannot be assumed that the child will
ultimately be adopted as appears to be suggested in the decision of the
Children's Hearing on 11th
February 2010.
[19].
In all the
circumstances I have decided not to refer the child's case to the Principal
Reporter.
Sheriffdom of Lothian and Borders at Edinburgh
Note
by
Sheriff Kathrine EC Mackie
In the application for a Permanence Order with authority to adopt under section 80 of the Adoption and Children (Scotland) Act 2007
By
The City of Edinburgh Council City Chambers High Street Edinburgh EH1 1YJ
In respect of the child CM (18/09/07)
Respondents CAM(mother) and JG (father)
Edinburgh 1st July 2010
The Sheriff, having resumed consideration of the cause, finds that no Devolution issue exists, refuses the Minute for the second respondent number 20 of process and continues the cause to the pre-proof hearing fixed to take place on 12th July 2010 at 10.00am within the Sheriff Court, 27 Chambers Street, Edinburgh.
NOTE
[1]. By Minute the second respondent raised a Devolution
issue in terms of section 98 and schedule 6 of the Scotland Act 1998. The
Minute was intimated to parties and to the Lord Advocate and the Advocate General. The Lord Advocate entered appearance. Written
submissions were lodged on behalf of the second respondent, the petitioners and
the Lord Advocate. A hearing fixed to take place on 12th and 13th
May 2010 required to be discharged due to conflicting criminal business. A
hearing took place on 23rd June 2010. By that date parties had
lodged supplementary submissions. Although the first respondent had not lodged
written submissions, at the hearing she adopted the submissions of the second
respondent.
[2]. I was greatly assisted by parties' very comprehensive
analysis of the issue as detailed in their respective submissions and the
authorities to which I was referred. I have not repeated their submissions at
length but by not doing so I mean no discourtesy to parties' agents and
Counsel. By the hearing on 23rd June 2010, following concessions
set out in his supplementary submissions, the issue raised by the second
respondent had distilled to the question whether section 83(2)(d) of the
Adoption and Children (Scotland) Act 2007 (hereinafter referred to as the Act)
can be interpreted in a way which is compliant with the European Convention on
Human Rights (the Convention). It was clear that a significant degree of
agreement existed.
[3]. Parties were agreed that in considering whether a
Devolution issue arises the starting point is to consider the interpretation
obligation in terms of section 3 of the Human Rights Act 1998. Accordingly,
"so far as it is possible to do" the court is required to read and give effect
to section 83(2)(d) of the 2007 Act in a way that is compatible with the
Convention. If it can be so read and given effect to it is "within competence"
in terms of section 101(2) of the Scotland Act 1998. The court is required to
search for a meaning that would prevent the need for a declaration of
incompatibility. There is a rebuttable presumption in favour of interpretation
consistent with Convention rights.
[4]. It was also agreed that an order granting authority
for adoption in terms of sections 80(2)(c) and 83 of the 2007 Act was an order
relating to the adoption of a child.
[5]. Further, it was agreed that the terms of section 14
of the 2007 Act provide sufficient and proper regard for the safeguards
required where a court is considering whether to dispense with a parent or
guardian's consent to the making of an adoption order.
[6]. It was conceded by the second respondent that if the
terms of section 14 apply when the court is considering the terms of section 83
and whether to dispense with a parent or guardian's consent to the making of an
adoption order no issue of incompatibility, and no Devolution issue, arises.
[7]. The second respondent contends that section 14 cannot
apply because of the mandatory terms of section 84(4).
[8]. Section 84(4) of the 2007 Act provides "In
considering whether to make a permanence order, and, if so, what provision the order
should make, the court is to regard the need to safeguard and promote the
welfare of the child throughout childhood as the paramount consideration." The
use of the word "is" removes the exercise of discretion. The application of
the "childhood" test is mandatory.
[9]. The second respondent submitted that an order
granting authority to adopt is a provision for the purposes of section 84(4),
the interpretation of the section means that the "childhood" test requires to
be applied to the provisions to be made and accordingly the "childhood" test
requires to be made to an order granting authority to adopt. Such a test would
not be compatible with the Convention. He drew support for his submission
from, firstly, the fact that section 14 is in Part 1 of the Act, secondly, the
terms of section 93(5) of the 2007 Act, and, finally, the different duties
imposed upon a curator ad litem in terms of Rules 12 and 44 of the Act of
Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act
2007) 2009.
[10].
In the long title the
2007 Act is described, inter alia, as an Act "to restate and amend the law
relating to adoption" and "to make other provision in relation to the care of
children". The Act is divided into four parts. Part 1, headed "Adoption", comprises
seven chapters. Part 2 is headed "Permanence Orders", Part 3 is headed
"Miscellaneous" and Part 4 is headed "General". Section 14 is the first
section in Chapter 2 of Part 1, which is headed "The Adoption Process". The
section is introduced by the words "Considerations applying to the exercise of
powers". Subsection (1) provides that "subsections (2) to (4) apply where a
court or adoption agency is coming to a decision relating to the adoption of a
child".
[11].
Bennion on Statutory
Interpretation Fifth Ed (2008) at p 749 notes that "The format or layout is an
unamendable descriptive component of an Act. It forms part of the Act as
promulgated by Parliament and is not to be disregarded by the interpreter.
While legal meaning should not depend on format this may have a part to play in
cases of doubt." As the Lord Advocate observed in her submissions, the
starting point in statutory interpretation is consideration of the plain
meaning of the provisions. At p 549 Bennion notes that "Where the legal meaning
is plain it must be followed. For this purpose a meaning is "plain" only where
no relevant interpretative criterion (whether relating to material within or
outside the Act or other instrument) points away from that meaning.....the plain
meaning must be given, but only where there is nothing to modify, alter or
qualify it."
[12].
It is conceded by the
second respondent that there is nothing in the terms of section 14 that appears
to restrict its operation to Part 1 of the Act. However it is submitted that the
format of the Act, and in particular the headings of the respective Parts
suggests that Parts 1 and 2 are to be regarded as a separate and distinct.
[13].
In my opinion, a plain
reading of the words of section 14(1) means that in reaching any decision relating
to the adoption of a child the considerations set out in subsections (2) to (4)
must be taken into account. Subsection (3) provides that "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.". It is
a matter of agreement that the "lifetime" test is compatible with the
Convention. There does not appear to me to be any doubt that it was the
intention of Parliament that those considerations, and in particular the
"lifetime" test, would apply to any decision relating to the adoption of a
child. To that extent Parliament has restated the law relating to adoption,
and the appropriate test to apply to dispensing with the consent of a parent or
guardian to the making of an adoption order, as was provided in section 6 of
the Adoption (Scotland) Act 1978. In P-v-Lothian Regional Council 1989 SC 200
it was determined that section 6 applied to a decision to dispense with consent
of a parent in the context of an application to declare a child free for
adoption under section 18. It is worth noting that section 18 appeared in Part
2 of the 1978 Act. The Lord Justice Clerk said, at p203, "In my opinion, any
decision relating to the adoption of a child clearly includes the decision as
to whether or not to make an adoption order. It also in my opinion includes
the decision as to whether or not to dispense with parental consent on the
grounds that it is being withheld unreasonably.". Section 6 applied to more than
just adoption orders. It is likely that Parliament intended that section 14
would be interpreted in the same way.
[14].
In the absence of
doubt as to the plain meaning of section 14(1) it is not necessary to have
regard to the format of the Act in order to interpret the meaning of the
provision. As Bennion notes at p 746 "Where a heading differs from the
material it describes this puts the court on inquiry. However it is most
unlikely to be right to allow the plain literal meaning of the words to be overridden
purely by reason of a heading." The second respondent's concession that there
is nothing in section 14 that restricts its operation to Part 1 is in my
opinion properly made.
[15].
It being agreed that
an order granting authority for adoption in terms of section 83 is a decision
relating to the adoption of a child it follows that the considerations set out
in section 14 apply to section 83 unless they are excluded therefrom. Section
14 is not expressly excluded.
[16].
It is submitted by the
second respondent that section 14 is impliedly excluded by the terms of section
84(4).
[17].
Part 2 of the Act
relates to the making of Permanence Orders. A Permanence Order is defined, by
reference to section 119, in section 80(2) as an order consisting of "(a) the
mandatory provision, (b) such of the ancillary provisions as the court thinks
fit, and (c) if the conditions in section 83 are met, provision granting
authority for the child to be adopted.". Sections 81, 82 and 83 set out,
respectively, the mandatory provision, the ancillary provisions and the
conditions that must be satisfied before provision granting authority for
adoption may be comprised in a Permanence Order.
[18].
It is significant that
the conditions contained within section 83(2) are identical to those contained
within section 31(3) regarding the dispensing with the consent of a parent or
guardian to the making of an adoption order. It is, as the Lord Advocate
states, unlikely that Parliament would have intended that, despite using the
same language, different criteria would apply to dispensing with consent to the
making of an adoption order depending on whether the court was considering an
application for Adoption or an application for a Permanence Order.
[19].
In terms of section
80(2) a provision granting authority for a child to be adopted may be comprised
in a Permanence Order "if the conditions in section 83 are met". A plain
reading of the words of section 80(2)(c) appears to me to be that if the court
is going to consider including in a Permanence Order a provision granting
authority for the child to be adopted it must have been satisfied that the
conditions in section 83 are met according to the test to be applied to a
decision relating to the adoption of a child.
[20].
Section 84(4) is
directed to the question whether to make a Permanence Order and what provisions
to include in it. A Permanence Order can only apply until the child reaches
the age of 18 in terms of section 81(2). Accordingly the court has to have
regard to the "childhood" test when considering whether to make a Permanence
Order and what provisions to include in it. The provisions are as set out in
section 80(2). There is nothing in section 84(4) that excludes from
consideration of the inclusion of a provision to grant authority for adoption the
words in section 80(2)(c) "if the conditions in section 83 are met".
[21].
The second respondent
submits that from a consideration of section 93(5) it is clear that section
84(4) applies to the provisions in respect of authority for a child to be
adopted and accordingly section 84(4) is the interpretative source for section
83. In other words the "childhood" test applies.
[22].
Section 93 provides
for amendment of a Permanence Order by the inclusion of authority for adoption
of the child. The court may amend the Order if "(a) the court is satisfied
that the child has been placed for adoption, or is likely to be placed for
adoption, (b) the court is satisfied that the condition in subsection (3) or
subsection (4) is met, and (c) the court considers that it would be better for
the child that authority for the child to be adopted is granted than it should
not be granted." Subsections 3 and 4 deal respectively with the consent of a
parent or guardian and dispensing with consent "on any of the grounds mentioned
in section 83". Accordingly, as submitted by the Petitioners, when considering
in an application for amendment in terms of section 93 whether it is satisfied
that the consent of a parent or guardian should be dispensed with on any of the
grounds in section 83 the court is considering a decision relating to the
adoption of a child. As such section 14 will apply.
[23].
Section 93(5) provides
that "Subsections (4), (5)(a) and (b) and (6) of section 84 apply to the
amendment of a permanence order under this section as they apply to the making
of such an order." Accordingly in considering whether to amend a Permanence
Order, as when considering whether to make a Permanence Order, the court
requires to have regard to the "childhood" test. However when considering the
conditions set out in section 83 the court requires to have regard to the
"lifetime" test as in any decision relating to the adoption of a child, as
provided in section 14. In my opinion the tests are complementary and not
mutually contradictory as suggested by the second respondent.
[24].
The second respondent
also draws support from the terms of rules 12 and 44 of the Sheriff Court Rules
and the different duties assigned therein to Curators ad litem. I was not
referred to any canon of statutory interpretation whereby rules promulgated by
virtue of provisions of primary legislation to provide for applications in the
Sheriff Court may be relied upon for interpretation of other provisions of that
primary legislation. In so far as it is appropriate to have regard to the
terms of the rules in rule 44 the duties of the curator ad litem are those
relevant to a curator appointed under "this Chapter". Rule 44 is part of
Chapter 4, which relates to Permanence Orders. Accordingly, in carrying out
the functions set out in rule 44(3)(a) to (j) the curator is reporting to the
court on matters which may assist the court in considering whether to make a
Permanence Order, and if so, what provisions may be included therein. The
curator, as submitted by the Petitioners, is not reporting to the court on the
question whether the consent of a parent or guardian should be dispensed with.
In considering the terms of rule 44(3)(i) in my opinion where an application
for a Permanence Order includes an application to grant authority for the
adoption of a child the curator's duty is to ascertain whether it would be
better for the child if the court were to grant a Permanence Order,
including such authority, than if it were not to grant an Order including such
authority. It is clear that the curator's duty is to have regard to the
"childhood" test because a Permanence Order exists only during childhood.
[25].
The second respondent
submits that, on the interpretation proposed by the Petitioners and the Lord
Advocate, two different tests are required to answer one question and since
both are mandatory one has to give way. In my opinion, the question whether to
dispense with the consent of a parent or guardian is a separate and different
question from whether to make or amend a Permanence Order. A plain reading of
section 84(4) does not in my opinion exclude the application of the "lifetime"
test to the dispensing of the consent of a parent or guardian to the making of
an adoption order. That test requires to be applied, as set out in section
14(1), to determine whether the conditions in section 83 are met before
considering whether a Permanence Order should be made including a provision
granting authority for the child to be adopted. Whether to grant a Permanence
Order is considered applying the "childhood" test because the Order is
applicable only to the period up to the age of 18. There is in my opinion no
irreconcilable conflict between the test as applied by section 14 to the
conditions in section 83 and the test as applied by section 84(4) as is
suggested by the second respondent.
[26].
For these reasons, in
my opinion, the interpretation proposed by the Petitioners and the Lord
Advocate is to be preferred.
[27].
A decision to grant as
part of a Permanence Order authority to adopt is a decision relating to the
adoption of a child as that term is used in section 14 of the Act.
[28].
The provisions of
section 14 apply to a decision that a parent or guardian's consent should be
dispensed with in terms of section 83(2)(d).
[29].
Neither section 84(4)
nor any other provision of the Act excludes expressly or impliedly application
of section 14 to section 83(2)(d).
[30].
Accordingly, no
Devolution issue arises.