Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

F861/10

JUDGEMENT   of   SHERIFF WILLIAM HOLLIGAN   in causa   CS & MS-M   Pursuers   against   CS   First Defender   and   LH Second Defender

 

 

Act, Karlin, Pursuers

Alt, McFall, First Defender,

Foy, Curatrix

Innes, Advocate, for the City of Edinburgh Council

 

8^th September 2010

 

[1] This action concerns the welfare of M born on 26^th May 2004. The first named pursuer is M's uncle. The second named pursuer is the first named pursuer's wife. The first defender is M's mother. The second defender is the partner of the first defender and the father of M. The second defender took no part in these proceedings. Intimation of the action was made to the City of Edinburgh Council who entered proceedings ("the Authority"). I appointed a curator (Mrs Foy) to M.

 

[2] The pursuers originally sought an order for parental rights and responsibilities in relation to M pursuant to section 11 of the Children (Scotland) Act 1995 ("the 1995 Act").

 

[3] The procedural background to this application is that the Authority made an application seeking an order that M be freed for adoption. That application was opposed by the first defender. The current pursuers stated a wish to look after M. The first defender stated that she did not, in principle, oppose such a disposal for M. In short, after sundry procedure the adoption action at the instance of the Authority was abandoned and the current proceedings commenced. In the course of the proceedings it became clear that the action raised a number of issues which required to be resolved. In the interests of M I made an order, stating my reasons would follow.

 

[4] Before I deal with the legal issues it is necessary that I set out some of the factual background. It is not necessary that I set out all of the material. The Authority lodged a very detailed and helpful report setting out M's family background and material relating to the pursuers. M is the fourth child of the defenders. He has been the subject of a supervision order all his life. The other three children of the defenders (all boys) are aged 10, 8 and 6 respectively. They are all in the care of maternal aunts. They are all subject to supervision requirements. Both defenders are heavily involved in drugs. In short, the first defender is not able to look after M. M was made the subject of a child protection order on the day of his birth. Various attempts were made to rehabilitate the first defender so as to be able to care for M. For some time M was in her care. However, because of concerns as to M's welfare in her care a place of safety warrant was sought and granted in or about July 2008. M has been in foster care ever since. In March 2009 the Edinburgh Adoption and Permanence Panel concluded that neither of M's parents was able to provide a safe and stable environment in which M's welfare could be promoted. The Adoption and Permanence Panel registered him as a child in need of permanent substitute care. On 6^th May 2010 the Matching Panel unanimously agreed that his needs would best be met by a permanent placement with kinship carers. The kinship carers referred to are the pursuers.

 

[5] Principally for employment reasons, the pursuers currently reside in Abu Dhabi. They previously resided in Scotland. The first pursuer is Scottish and he regards himself as domiciled in Scotland. The second named pursuer is Dutch. Their plan is to move to Dubai. They continue to own property in Scotland. Both pursuers are in secure and well paid employment. The second named pursuer proposes to give up her employment so as to help care for M. The pursuers have no children of their own. All of the reports and all the views of the adults, professional or lay, are to the effect that the pursuers are committed to looking after M and have both the resources and abilities to do so. Both families of the pursuers are supportive of the proposal. Provisional arrangements have been made to enrol M in an appropriate school. M was aware of the proposal. Having regard to the pursuers' plans to return to Abu Dhabi and the plans that had been made to accommodate M, there was some need for urgency in dealing with the application.

 

[6] The pursuers were keen to have the order made in their favour. They were ready and willing to look after M and had cooperated fully in the process of assessing their suitability to do so. The Authority was also in favour of the order sought by the pursuers. A very thorough kinship assessment had been undertaken involving extensive enquiries. The pursuers were eminently suitable to look after M. Although the first defender had not formally entered process she was represented in the hearing before me. As it seemed to me it was very much in M's interest that the first defender be heard I allowed her solicitor to address me. The first defender is regretful that the current situation has arisen but she confirmed that she was more than happy for M to be with her brother and his wife. She did not oppose their application and was prepared to enter into a Minute of Agreement confirming her agreement to the proposal. (I shall refer to this aspect later). Given the magnitude of the proposal I considered that I ought to appoint a curator in relation to M. I appointed Mrs Foy whom the court had appointed as reporting officer and curator in the adoption proceedings. Mrs Foy had some knowledge of the factual background to this matter. Mrs Foy met with the pursuers, M's carers and with M himself. I should add I accept that Mrs Foy had limited time within which to carry out her inquiries and that what she reported to the court must be seen in that light. However, she was of the view it was in M's best interests that the order should be granted. The pursuers were clearly motivated and able to look after M. They knew and understood his relationship with his mother. His mother was unable to look after him. The foster carers supported the application. M was ready to "move on". He needs longer term stability. M himself was emphatic that he wanted to be with the pursuers. He had seen his proposed school and house and was keen to start. The terms of the proposed order were appropriate. The only qualification was that M had not lived with the pursuers for any length of time. As it is the intention to seek to adopt M, Mrs Foy felt she could not support such a proposal at this particular stage. Also, although M's siblings were living with other relatives he did have contact with them. He would lose this contact as a result of the move. However, it was the intention of the pursuers that M meet his siblings during holiday periods. I understood there had already been regular visits between Abu Dhabi and Scotland.

 

Legal issues

 

[7] At the end of the day, the pursuers who live in the United Arab Emirates ("UAE") seek an order from this court that M live with them, in the hope that adoption may be possible. This simple proposition concealed a number of issues which fell to be addressed. As I have said, the writ, as originally framed, sought a parental rights and responsibilities order. It was accepted, at a later stage in proceedings, that any order granted should properly be a guardianship order. That in itself gave rise to certain issues.

 

 

 

 

 

Guardianship Order

 

[8] The pursuer's solicitor lodged a helpful note in support of the application for the making of a guardianship order. I was referred to certain authorities (Wilkinson & Norrie, Parent and Child (2^nd edition); Butterworths Family Law Service, particularly at C548). These authorities all describe a guardian appointed pursuant to the 1995 Act as a "parent substitute" (Wilkinson & Norrie, paragraph 9.07; Butterworths C951). The appointment of a guardian is regulated, principally but not exclusively, by the 1995 Act. I refer to sections 7, 8, 11(2) (h) thereof. There remain certain provisions in section 5 of the Age of Legal Capacity (Scotland) Act 1991 ("the 1991 Act") referring to guardians. The history of the term "guardian" in Scots law is set out in detail at paragraphs 7.01 and 7.02 of Wilkinson & Norrie. Nowhere in the 1995 Act is the term "guardian" defined. Section 7 of the 1995 Act describes the circumstances in which a parent may appoint a person to be a guardian of their child in the event of their death. It is clear from sections 11(1) (c) and 11(2) (h) that the court may also appoint a guardian. Section 7(5) of the 1995 Act provides that any person appointed guardian shall have the same rights and responsibilities as a parent and that sections 1 and 2 of the 1995 Act apply to a guardian "as they apply to a parent". Both sets of authors (Wilkinson & Norrie 9.07 and Butterworths C548) agree that when parental rights and responsibilities are conferred upon a person who is not a parent then the order is more appropriately one of guardianship rather than the grant of an order of parental rights and responsibilities. I respectfully agree with that proposition. Leaving aside the complexities of unmarried fathers, married parents, in general terms, hold parental rights and responsibilities by virtue of being parents of the child. Implicit in section 7(1) and (5) is the proposition that a guardian is someone other than a parent to whom parental rights and responsibilities are given, either by testamentary deed or by order of the court. Such an order does not, in itself, deprive a parent of their parental rights and responsibilities nor does it confer the status of parenthood on those appointed guardian. Accordingly, given that neither pursuer is the parent of M the application is correctly one for appointment of a guardian. I should add that nothing turns upon the "interest" of the pursuers to raise this action. I have no doubt they have such an interest to do so.

 

[9] The next question is one of jurisdiction, something raised specifically in the pursuers' written submission. It would appear that the issue is the meaning of "guardian" (and I include "guardianship") in the relevant legislation. Jurisdiction is determined by the Family Law Act 1986 ("the 1986 Act"). Section 1(1) (b) defines what is called a "Part1 order" as being:-

 

"an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the residence, custody, care or control of a child, contact with or access to a child or the education or upbringing of a child..."

 

Section 9 of the same Act provides, in short, that an application for a Part 1 order (excluding certain proceedings not relevant to this action) may be brought before the sheriff if on the date of the application the child concerned is habitually resident in the sheriffdom. However, section 1(1) (b) goes on to exclude from its terms certain categories of actions (mostly public law matters concerning children). The list of exclusions includes "(ix) an order relating to the guardianship of a child". Now it is clear from section 1(1) (b) that what I might describe as the standard application for parental rights and responsibilities would fall within its terms and hence attract the jurisdiction pursuant to section 9. Section 16 of the 1986 Act (headed "Tutory and curatory") provides that an application for guardianship of a child may be entertained by a court in accordance with the provisions of section 16(1). Section 16(4) provides that an Act of Sederunt may prescribe what constitutes an application in relation to orders relating to the guardianship of a child. I note that the definition of "family action" in OCR 33.1(1) (h) (ii) inter alia excludes an application for the appointment of a guardian "mentioned in section 11(2) (h)... to which paragraph 4 of the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 applies." Paragraph 4 of that Act of Sederunt provides that an application for the appointment of a guardian (except where such appointment is sought in the crave of a family action) shall be made by summary application. I shall return briefly to this issue. The question is whether the application before me is truly a Part 1 order. In my opinion it is and I do so, partly, for the reasons advanced in Wilkinson & Norrie at paragraph 9.24. In short, the concept of "guardian" has never been a term of art in Scots law. Until abolished by the 1991 Act a court could make orders relating to the tutory and curatory of children. Section 5 of the 1991 Act replaced tutory and curatory with the office of "guardian" and also amended the provisions of section 1(1) (b) (ix) and section 16 of the 1986 Act (see paragraphs 44 and 45 of Schedule 1 of the 1986 Act) so as to replace tutor and curator with guardian (for some reason it left the headnote "Tutory and curatory" in section 16). In general terms at least, it would appear that the concept of guardianship at that point was more akin to what would now be described as "legal representation" (see paragraphs 9.24 and 15.28-15.37 of Wilkinson & Norrie). Furthermore, as I have said, the concept of guardian was changed by the 1995 Act. The 1995 Act altered the concept of guardian to be that of a "parent substitute" rather than solely that of legal representative. (see also the commentary of Professor Norrie to the relevant provisions of the 1995 Act in Current Law Statutes). The provisions of section 7(5) make clear that a guardian will have those parental rights and responsibilities set out in sections 1 and 2 of the 1995 Act. Given the extent of the powers now given to a guardian I see no good reason to restrict the words of section 1(1) (b) of the 1986 Act so as to exclude an application for a guardianship order where it seeks the grant of parental rights and responsibilities. I can see no purpose in doing so. It seems to me that the provisions of section 1(1) (b) (ix) are limited to guardianship when the application is directed to the grant of powers of legal representation. I hold that a similar interpretation applies to the provisions of section 16. It follows that I also respectfully agree with Wilkinson & Norrie (paragraph 7.04) that the terms of section 5(2) of the 1991 Act must be read as restricted to the appointment by parents and guardians, so as not to be in conflict with the provisions of section 11(2)(h) of the 1995 Act. Finally, I have to say that I have some difficulty in interpreting OCR 33.1(h) (ii). Again, I read it as being limited to applications which are not of the "parent substitute" type. (I confess it is not immediately apparent to me why any application for a guardianship order relating to children should not be classed as a "family action"). In any event I am not minded to allow any possible complexity in the Rules to interfere with considerations as to the welfare of M. Accordingly, my conclusion is that the current application is truly a Part 1 order to which section 9 of the 1986 Act applies. As M was habitually resident within this sheriffdom when the action was raised, this court does have jurisdiction.

 

The overseas element

 

[10] I have said enough as to the merits of the action to establish that it would appear to be in M's welfare that he resides with the pursuers. I was furnished with two opinions from a legal practitioner practising in the UAE. One of the areas of concern was the extent to which any order made in this court would be recognised in the UAE. I did not regard this as being an issue of private international law but rather an aspect of M's welfare. I considered I needed to be satisfied that, for example, should M fall ill and need medical treatment, or if consent be required to matters relating to his education, then the pursuers would be able to give the appropriate consents and that, so far as is possible to say, they would be recognised in the UAE. The opinion letters are helpful in addressing these issues. They give an outline of the relevant law in the UAE. It is reasonably clear that the courts of the UAE might not give automatic and unqualified recognition to a bare section 11 order. However, if the order were to give some specification of the parental rights and responsibilities conferred upon the pursuers, coupled with an agreement executed by the first defender confirming her consent to the making of the order then, provided the order itself was attested by the Foreign Commonwealth Office it would have far greater efficacy. There will remain issues as to the effectiveness of the order in competition with any claim by the first defender. However, given the factual position known to me, and the position under Scots law, I did not regard this as being an issue of great concern. I accordingly invited parties to prepare a draft interlocutor setting out the orders sought which draft I later revised and approved.

 

 

 

The adoption issue

 

[11] It is clear from the material and from the submissions made to me that it is the hope of the pursuers, should all proceed satisfactorily in the immediate future, that they can proceed with an application to adopt M. I hasten to add there is no thought to make an application for the adoption of M in any jurisdiction other than Scotland. One of the questions put before me was the potential effect of section 60 of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act"). Section 60(1) provides:-

 

"(1) A person who takes or sends a protected child out of Great Britain to any place outwith the British Islands with a view to the adoption of the child by any person commits an offence."

 

M is a "protected child" (section 60(9)) of the 2007 Act). The section goes on to provide that Scottish Ministers may make regulations qualifying the provisions of section 60(1). No such regulations have been made. Miss Innes prepared a helpful note and addressed me upon this matter. It is clearly of considerable concern to the pursuers that they should not find themselves alleged to be in breach of this provision. Furthermore, I doubt the court could have sanctioned the grant of an order in breach of this provision. Miss Innes submitted there was no breach of section 60 and with that submission I agree. Section 60 is contained within chapter 6 of the 2007 Act which is headed "Adoptions with a foreign element". Section 58 deals with restrictions on bringing children into the United Kingdom. Section 59 gives to the court the power to make an order where prospective adopters intend to adopt a child under the law of a country or territory outwith the British Islands. Section 59 clearly has no application here because the pursuers have no such intention. Section 60 is headed "Restriction on removal of children for adoption outwith Great Britain". In my view, Miss Innes was correct when she submitted that the mischief of the section is to prevent children being taken from the United Kingdom without adequate safeguards to ensure that they are not enslaved or otherwise abused. It is not designed to deter adoption by legitimate means. Miss Innes submitted that the 2007 Act, particularly section 29, anticipates adoptions where the only connection to Scotland is the domicile of one of the parties. If the residence requirements in section 15 are to be satisfied then a child will have to be permitted to live with their prospective adopters even when that placement is abroad. If one of the purposes of the legislation is to encourage kinship care, it would make little sense to limit its potential effects by a restrictive reading of the section. Miss Innes referred me to the case of In re A (A Child) (Adoption:Assessment outside Jurisdiction) [2009] 3 WLR 1169, a decision of the Court of Appeal in England in which she said a similar conclusion was reached. Although Miss Innes accepted that the English legislation is somewhat different, similar provisions to those in section 60, contained in section 85 of the Adoption and Children Act 2002, were held to have a similar purpose to that she submitted applied to section 60. I have read carefully the judgements of Wall and Moore-Bick LJJ. Although I accept that the general thrust of these judgements is supportive of Miss Innes' proposition, I am hesitant to place too much weight upon this decision principally because (as it was very fairly accepted by Miss Innes) the English legislation does seem to me to be more elaborate than the Scottish equivalent, particularly when one considers the provisions of paragraph 19 of Schedule 2 to the Children Act 1989. Section 60 of the 2007 Act is a relatively new provision but it appears to me to have been modelled upon section 50 of the Adoption (Scotland) Act 1978. There appears to be no authority dealing with its interpretation. I agree that the principal purpose of section 60(1) is to guard against children being removed from this country for the purposes of adoption abroad. I find it difficult to envisage circumstances in which it would apply to children taken abroad where the purpose is to make an application for adoption in this country. I appreciate that the words "with a view to the adoption of the child" are general. However, in any event, there is no guarantee in the present case that an application for adoption would ever be made. With the best will in the world, the placement may yet fail and M be returned to Scotland. On the facts of this case I doubt it could be said that the taking is "with a view to adoption". If any adoption process does commence it will be in this country and not overseas. The words in the headnote "for adoption outwith Great Britain" seem to me to suggest the process of adoption overseas. I am therefore of the view that section 60(1) has no application to the facts of this case. Furthermore, the pursuers are taking M abroad pursuant to an order of this court entitling them to do so.

 

 

[12] The remaining matter concerns the supervision order. The supervision order contained a requirement that M reside with his foster carers. There was therefore a very substantial risk that any order I might make would be in conflict with that requirement (P v P 2000 SLT 781; T v A 2001 SCLR 647). However, any such difficulty was removed because I was told that, the day before the hearing before me, and having considered the pursuers' proposals, the children's hearing agreed to the removal of the requirement that M reside with his foster carers. I accordingly granted the order in the terms proposed by the parties and revised by me..