Scottish Sheriff Court Decisions

(PO1/10)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

EAST LOTHIAN COUNCIL

Application of a Permanence Order

Under Section 80 of the Adoption and

Children (Scotland) Act 2007

in respect of the child

LSK

Act: Ms M Loudon, Advocate, instructed by East Lothian Council

Alt: (First Respondent) Bell, Advocate, instructed by Garden Stirling Burnet

Alt: (Second Respondent) MsStirling, Advocate, instructed by R A Low & Co

EDINBURGH, 8 March 2011

The Sheriff Principal having heard counsel for the parties and of consent recalls the sheriff's interlocutor of 30 July 2010; remits the case to the sheriff for re-consideration with particular regard to the terms of section 84(5)(c) of the Adoption and Children (Scotland) Act 2007 and to the submissions of parties relative thereto; appoints Mr Alan F Finlayson curator ad litem and reporting officer to prepare a supplementary report to be lodged with the sheriff clerk at Haddington quam primum.

(signed) E Bowen

Note

1. This is the first appeal to come before me in proceedings for a permanence order, with an order granting authority to adopt, under the provisions of the Adoption and Children (Scotland) 2007. In terms of section 80(2) of the Act a permanence order is 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, a provision granting authority for the child to be adopted.

2. Section 81 of the Act defines the "mandatory provision" of a permanence order. It is a provision vesting in the local authority the responsibility for provision of guidance appropriate to the child's stage of development and the right of regulation of the child's residence (being that mentioned in section 21(A) of the Children (Scotland) Act 1995.

3. Section 82 sets out the scope of the ancillary provisions. One then moves in section 83 to the conditions referred to in section 80(2). The first of these is that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted. It will be seen from this that an order for authority to adopt can only exist in the context of a permanence order. In the course of the proceedings before me I was referred to the judgment of Sheriff Philip Mann in the application by Aberdeenshire Council for a permanence order relating to CW, (unreported), Banff Sheriff Court 6 December 2010. In his analysis of the statutory provisions, Sheriff Mann observed that: "The provision granting authority for adoption is competent only if the condition exists for the granting of a permanence order and such an order is actually granted. Whilst a permanence order can subsist without the provision the converse is not true". That view is clearly correct.

4. In determining whether the conditions set out in section 83 apply the court is required to have regard to the terms of section 14 of the Act which sets out certain "considerations applying to the exercise of powers". These apply when a court or adoption agency is coming to a decision relating to the adoption of a child. One of the considerations (section 14(3)) is that the court is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

5. Section 84 of the Act covers the "conditions and considerations applicable of making an order", that is to say a permanence order. Sub-section 4 provides that 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. Sub-section 5 then goes on to set out a number of factors which the court must take into account or have regard to. In terms of sub-section 5(c) the court is required to be satisfied "(i) there is no person who has the right mentioned in sub-section 1(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence or (ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child".

6. On 30 July 2010 following a proof which occupied eight days the sheriff granted the prayer of the petition in the present case thereby (a) making a permanence order in respect of the child LSK in terms of sections 80 and 81 of the 2007 Act; (b) extinguishing the parental rights and responsibilities of the natural parents subject to a restricted right to obtain information about the child in terms of section 82; (c) granting authority for the child to be adopted in terms of section 83 and (d) revoking an existing supervision requirement in terms of section 89(1)(b).

7. That decision is the subject of an appeal by S and D the natural parents of LSK. Their first ground of appeal is to effect that the sheriff erred in granting the permanence order without making any finding that he was satisfied that the child's residence with them is or is likely to be seriously detrimental to the child's welfare, as required by section 84(5)(c) of the 2007 Act. It was a matter of concession by counsel on behalf of the petitioners that this ground of appeal was well-founded.

8. In his Note the sheriff reviewed the statutory provisions set out in sections 14, 80, 83, 84 and 89 of the 2007 Act. He then said the following: "It will be seen... that essentially the court has three main decisions to make. The first is whether a permanence order with mandatory provisions should be made. In so doing the court must have regard to the need to promote and safeguard the welfare of L throughout his childhood (section 84(4)). The same test applies in deciding any other ancillary provision apart from authority to adopt. The second decision is whether there are grounds to dispense with the agreement of D and S (section 83(2)). This is a question of fact as to whether these grounds exist. The third decision only arises if the court has decided that grounds to dispense do exist. In that event section 14 comes into play. In that case the court must have regard to all the circumstances, in particular the circumstances mentioned in section 14, and must have regard to the need to safeguard and promote the welfare of L throughout his life before making the decision to grant the ancillary provision relating to adoption. Although the paramount considerations in decisions one and three are different, it follows that if a court makes a decision in number three (throughout life) it will necessarily include a decision in number one (throughout childhood) as childhood is part of life and cannot be separated from it".

9. Counsel for the natural parents and appellants maintained that this betrayed an error of approach. The correct approach was to consider first whether a permanence order should be made, in respect of which the court was directed to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. It was only if a decision to make a permanence order was taken that the court then moved on to consider whether an order granting authority for adoption should also be made. As Sheriff Mann pointed out in the case referred to "throughout life" and "throughout childhood" were different periods to which different considerations apply. Counsel did not found in particular on that error of approach, but pointed out that in the passage above quoted the sheriff had not taken the provisions of section 84(5)(c) into consideration. That may have been partly because of the manner of his approach. The result was that there was no finding that the child's residence with the natural parents or either of them was, or was likely to be seriously detrimental to the welfare of the child. Without that finding a permanence order simply could not be made.

10. As I have indicated counsel for the petitioners conceded that the test set out in section 84(5)(c) had been overlooked. She pointed out that in the joint minute of admissions entered into by the parties (No 21 of process) it had been agreed in terms of paragraph 15 that there was no person having the right to have the child with him or otherwise to regulate the child's residence under section 2(1)(a) of the 1995 Act, and in paragraph 49 it was set out that no person had such a right "as the child is subject to a supervision order with conditions of residence". It was now acknowledged that this concession was wrong in law as such a supervision requirement only suspended parental rights and did not withdraw them. That explained why the sheriff was not addressed on the question arising in section 84(5)(c).

11. Parties having adopted this common ground, the debate which took place before me centred on the question of further procedure. Mr Bell, Advocate for the first respondent, whose submissions were adopted by counsel for the second respondent, moved that the appeal be allowed and the case directed to a fresh hearing before a different sheriff. He noted that this was the course taken in Dundee City Council v M 2004 SLT 640.

12. Mr Bell submitted that a remit to a different sheriff was necessary for three reasons. First, the sheriff had already decided the case against the respondents, that is to say, to the effect that the child should be adopted. It was accordingly unrealistic to expect him to apply his mind to the terms of section 84(5)(c)(ii) in a manner which was untrammelled by that previous conclusion. Secondly, the issue raised by section 84(5)(c) had not been canvassed before the sheriff. Parties did not join issue on the test raised in that section and the issues arising directly from it had not been put to the respondents. There was now a change of circumstances in respect that the first respondent was six months pregnant. The section 84(5)(c)(ii) test looked to the future as well as the past and the situation ought to be looked at in the light of what was likely to happen to the respondents and the new child as a family unit. Finally, Mr Bell submitted that were the test of section 84(5)(c)(ii) not to be met the result would be negative, that is to say the sheriff's earlier decision would require to be reversed. That meant that in effect he was being asked to review his own earlier decision, a course which was plainly inappropriate.

13. Mr Bell submitted that the alternative was to remit to the sheriff to hear additional evidence as to the respondents' current circumstances and submissions on the section 84(5)(c) test. For the reasons advanced that course was not satisfactory. Anticipating that counsel for the petitioners would suggest that a fresh report be obtained from the curator ad litem Mr Bell submitted that there was more involved than simply updating the court on the current state of affairs since the issue which had been overlooked had not been addressed at proof.

14. The other possibility was for the omission to be dealt with by me and for the findings in fact and law to be amended to cover section 84(5)(c). Mr Bell submitted that this would be inappropriate for a number of reasons. The decision was essentially one of fact for the sheriff at first instance; the existing findings were not so clear as to permit the making of the appropriate finding; and it would be inappropriate for an appellate court to take this course on the basis of the printed evidence.

15. In response counsel for the petitioner submitted that there were several passages in the sheriff's judgment from which it could be implied that he had considered the effect of moving the child so that he resided with the respondents, and that had also been considered by the curator ad litem. Counsel founded on a number of findings in fact made by the sheriff notably Nos 27 and 29. No 27 sets out that: "S and D are feckless and immature. They would not deliberately harm L. They have never cared for L. They have no bond with him and he has no bond with them. Their wish to care for L at the present time is unrealistic, albeit understandable. They would not be able to care for him properly on their own". Finding 29 states "The difficult behaviour of D is an impediment to L being cared for by D and S and by the grandparents. D's control of his behaviour has not improved to such an extent that it would be possible for L to be accommodated either with D and S or with the grandparents. D continues to have difficulty exercising self-control which results in confrontation with people when he does not agree with them. This will be likely to happen in the event of L being placed with his grandparents. This would cause harm to L and would have an adverse effect upon the mental health of the grandmother. This in turn would affect her ability to care for L". Counsel submitted that these and other issues dealt with in the findings in fact were all matters on which evidence had been led. The sheriff thus had "at the back of his mind" considerations similar to the test and there was thus evidence entitling him to consider the applicability of section 84(5)(c)(ii).

16. In that situation counsel's motion was that I direct the curator ad litem to prepare an up to date report and remit to the sheriff who heard the case to consider the position and make findings which address section 84(5)(c) directly. Counsel opposed any motion to remit to a fresh sheriff on the grounds that this was unnecessary and would lead to further delay. She submitted that asking the sheriff to direct his attention to a particular point on the basis of fresh information was not tantamount to inviting him to review his own interlocutor.

DECISION

17. I am highly conscious of the lapse of time in this case. The child has reached the age of 27 months. He is likely to be at least three years of age before this matter concludes. He has never been in the care of the respondents. An early and conclusive decision on his future is essential in fairness to him and all those involved in the potential arrangements for his care.

18. I see considerable force in the submissions of counsel for the petitioners that the findings in this case point to the view that many of the considerations relative to the test contained in section 84(5)(c)(ii) fell within the scope of the enquiry. That might lead to the conclusion that the sheriff's final decision has already been reached and to the need to adopt the course taken in Dundee City Council v M of remitting the case to a fresh sheriff. I am satisfied however that the circumstances here are far removed from the circumstances of that case. In Dundee City Council v M the sheriff had, by introducing questions of infringement of the rights of the natural parents under Articles 6 and 8 of the European Convention at an earlier stage of the proceedings, gone off on something of a frolic of his own. It is unsurprising that the Inner House came to the decision that the case should be considered afresh. In the present case the sheriff was to a significant extent induced to overlook an issue of law. Returning the case to him to consider the section 84(5)(c) test does not have the effect of requiring him to review his earlier decision. What it involves is consideration of a distinct legal test which he has not considered previously, and which may be affected by a change of circumstances.

19. The sheriff in this case is highly experienced in this area of the law. I have confidence in his ability, in accordance with his duty under the judicial oath, to approach the question which was overlooked previously as a discrete one. Accordingly, it is my view that the most expeditious form of disposal, which is as fair as it can be in the circumstances, is to remit to the sheriff to consider the issues raised by section 84(5)(c). He should do so, however, in the light of additional submissions by parties, and to assist the process I assent to counsel for the petitioners' suggestion that an up to date report should be obtained from the curator ad litem and reporting officer. I acknowledge that this places the reporter in a slightly delicate situation, but again he is well experienced in dealing with matters of this nature. I shall simply instruct his report to lodged with the sheriff clerk quam primum.