SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE at DUNDEE

 

 

 

 

NOTE

 

by

 

SHERIFF D C W PYLE

 

in Application

 

by

 

DUNDEE CITY COUNCIL, a local authority constituted in terms of the Local Government etc (Scotland) Act 1994 and an adoption agency for the purposes of the Adoption (Scotland) Act 1978, having its principal offices at City Chambers, City Square, Dundee

 

 

Petitioners

 

 

for an order declaring a child, C, free for adoption, in terms of Section 18 of the Adoption (Scotland) Act 1978

 

 

 

 

This is an application in terms of Section 18 of the Adoption (Scotland) Act 1978 in which the petitioners as a local authority and as an adoption agency seek an order declaring a child, C, free for adoption and to dispense with the agreement of C's parents. The application is not opposed by C's mother, but is opposed by Y who claims to be C's father. He is not stated as such on C's birth certificate.

 

Y has raised an action for declarator that he is C's father and thereafter for an order for parental rights and responsibilities and residence. Initially the application was continued pending a decision in the action of declarator. The petitioners expressed concern that following the bringing into force of the Adoption and Children (Scotland) Act 2007 the application required to be granted by a certain date, failing which it would automatically fall. They understood that other local authorities and adoption agencies were also concerned about this possibility in other cases.

 

I heard submissions on this point at a hearing on 20 April 2010. In the event, it was agreed that the action be sisted pending a resolution of the application, in which a proof has been fixed for July. Nevertheless, I was addressed on the point of concern to the petitioners and having reached a view I agreed to write a note.

 

The Adoption and Children (Scotland) Act 2007 introduces sweeping changes to the manner in which adoptions are dealt with in Scotland. One of the major changes is that the procedure for freeing children for adoption is abolished. The Act also introduces a new order called a permanence order. The issue in the instant case was the effect of the new Act - and in particular its transitional provisions - on current applications for freeing for adoption.

 

Section 18(1)(b) of the 1978 Act provided that on application to it the court, if satisfied that each parent's agreement to the making of an adoption order should be dispensed with, should make an order freeing the child for adoption. That section is repealed by Section 120(2) and Schedule 3 of the 2007 Act. The relevant part of the 2007 Act came into force on 28 September 2009 - in terms of article 2 of The Adoption and Children (Scotland) Act 2007 (Commencement No.4, Transitional and Savings Provisions) Order 2009. Chapter 4 of the Order deals in detail with the transitional provisions for freeing orders.

 

Article 16 of the Order provides:

"16. - (1) This article applies where a child is subject to a freeing order -

... (b) by virtue of an order granted following an application referred to in article

18.

(2) Subject to section 35... of the Act the freeing order shall continue to have effect until 28 September 2010.

(3) despite their repeal the provisions of the 1978 Act continue to have effect as they did immediately before the appointed day [28 September 2009] to the extent required for the purposes of paragraph (2)."

 

Article 17(1) provides:

"Where, immediately before 28^th September 2010 a child is subject to a freeing order by virtue of article 16 that child shall be treated as if they were subject to a permanence order."

 

Article 18 provides:

"Where, before the appointed day an application for freeing order had been made under section 18... of the 1978 Act and not yet determined, the provisions of the 1978 Act have effect in respect of that application."

 

The petitioners' solicitor submitted that there was a lacuna in the Order in that it failed to legislate for the situation where there was merely an outstanding application for a freeing order as at 28 September 2010. It appeared that when the Act was passed it was not envisaged that there would still be outstanding applications in September of this year. Accordingly, it was vital that the instant application be dealt with before then. She said that many other local authorities were concerned about this and indeed the solicitor for one national adoption and fostering association agreed with this interpretation.

 

Counsel for Y submitted that there was no lacuna and that the effect of the Order was that a freeing order granted after 28 September 2010 will automatically be deemed to be a permanence order. That view, she submitted, was supported by the last paragraph of the explanatory note to the Order.

 

At the end of the hearing I indicated that I agreed with counsel's construction. Having considered the matter further, I have come to the conclusion that orders granted after 28 September will have effect in the same was as orders before that date, it is not because I agreed with counsel's submission.

 

One way to explain the position would be to start with article 18 which ensures that the 1978 Act continues in force in order that the court can deal with the application. On the order being granted, the provisions of article 16(1)(b) come into play and that, in turn, leads on to article 17(1) which is the provision which creates the deemed permanence order. The problem with that approach is that article 17(1) expressly applies only to a child subject to a freeing order "immediately before 28th September 2010".

 

Thus one is driven to the conclusion that while article 16(1)(b) is undoubtedly wide enough to consider outstanding applications on or after 28 September 2010, nowhere in the Order is there a provision explaining what happens to such applications.

Counsel referred to the explanatory note to the Order, which I agree can be used as an aid to construction (Craies on Legislation, 8^th edition, para 27.1.8) but I do not think that it helps to illuminate Parliament's intention.

 

It would of course be surprising if Parliament intended not to deal with applications for freeing orders which were still outstanding as at 28 September 2010. Apart from anything else, a freeing order is subject to appeal. It is plain that the purpose of the Act is to abolish freeing applications and replace them with permanence orders with a provision granting the authority for the child to be adopted. It cannot, in my view, have been the intention of Parliament not to pass saving provisions for applications such as the instant one. Indeed, Article 16(1) is broad enough in its terms clearly to cover such applications. It follows, therefore, that Parliament must have intended that there be savings provisions for them.

 

The right of the court to correct obvious drafting errors undoubtedly exists - see the discussion in Craies para 20.1.9ff. In my opinion, the legislative intention is achieved by adding in article 17(1) the words, "or on or after" after the word "before" in the first line thereof and by adding the words "or is made" after the word "is" in the same line. If that is done, the freeing order, if granted on or after 28 September will be deemed to be a permanence order with the detailed provisions set out in article 17(2).

 

Of course, this issue will be academic if the order is granted (or refused) prior to 28 September, which is the present hope of the parties.

 

For completeness, I should add that the parties decided jointly to move me to sist the action and order a proof on the application (with Y being allowed to be represented and, if he wishes, to cross-examine witnesses or indeed to lead evidence on his own behalf) in light of the approach taken by the First Division in AB v CD, Petitioners 1992 SLT 1064.

 

 

 

 

Dundee, 17 May 2010