Scottish Sheriff Court Decisions

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 12^th 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 12^th and 13^th May 2010 required to be discharged due to conflicting criminal business. A hearing took place on 23^rd 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 23^rd 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.