Scottish Sheriff Court Decisions

Note:-

1.     In this undefended application, the Petitioners seek a Permanence Order in terms of s.80 of the Adoption and Children (Scotland) 2007 in relation to A, a child aged 11. Since 2003, A has been subject to a Supervision Requirement in terms of s.70 of the Children (Scotland) Act 1995. His sister and younger sibling are subject to similar Requirements. Since July 2010, A has been accommodated by the Petitioners with X, a Foster Carer.

2.     The Permanence Order craved seeks vesting of the mandatory provision in the Petitioners, the joint vesting of ancillary provisions in the Petitioners and X and revocation of the Supervision Requirement.

3.     After the Petition and Social Work Reports were lodged, a Reporting Officer was appointed and a preliminary hearing date fixed. Following intimation, no notice of opposition was lodged. Although the Reporting Officer recommended I grant the Petition, as the Social Work Report obliquely referred to concerns about X's health, previous convictions and his former status as a member of a Children's Panel, I twice continued the preliminary hearing to enable further documents to be produced. After that occurred, I was addressed by the Petitioners' agent, who moved me to grant the Petition. However, as there was still insufficient evidence to grant the ancillary provisions, I issued a Note appointing an undefended proof.

4.     Just before the proof, the Petitioners lodged a number of Affidavits and a substantial Inventory of Productions. As these sufficiently addressed my concerns, I was able to grant decree without evidence being heard. However, as the case highlights procedural difficulties in Permanence Order cases, I have taken this opportunity to record my views.

5.     Permanence Orders were an innovation of the 2007 Act. They permit Local Authorities to seek parental rights and responsibilities over children in their care. The Act and the Sheriff Court Adoption Rules 2009 are both designed to be flexible. Present and future court orders, parental rights and responsibilities agreements and Supervision Requirements can simultaneously be created, revoked and/or amended as appropriate in the child's best interests. In this way, final orders are tailored to each child in their best interests .

6.     s.81 of the 2007 Act permits the mandatory provision, specific parental rights and responsibilities, only to vest in the Local Authority. However, s.82 also permits ancillary provisions, parental rights and responsibilities which may vest in either the Local Authority and/or another person. The court must take account of factors specified in s.84 and must only make an order if doing so would be better for the child. s86 allows any interested party an opportunity to make representations to the court before any order is made. ss.87 and 88 provide that Permanence Orders revoke any existing orders or agreements relating to the child and s.89 permits the revocation of existing Supervision Requirements. Authority to adopt is not craved in this case.

7.     The 2009 Rules adopt a similar approach. Rules 4 and 35(3)(b) confer a wide discretion on the Sheriff to regulate procedure and make orders, to enable applications to be determined expeditiously.

8.     Chapter 4 of the Rules regulates applications for Permanence Orders generally. Rule 31 firstly provides the Petition must be accompanied by inter alia a report by the Petitioners on specified issues, including "any other information which may be of assistance to the court" (Rule 31(2)(xvi)). The Petition being lodged then triggers initial procedure:-

• The Sheriff must appoint a Reporting Officer (Rule 32)

• The Sheriff Clerk must fix a preliminary hearing date to take place within 6 to 8 weeks (Rule 33(1)(a))

• The Petitioner's agent must intimate the Petition and preliminary hearing date to anyone who may wish to make representations (Rules 33(1)(b) and (c); Rule 33(2))

• The Petitioner's agent must lodge executions of intimation (Rule 33(5))
• The Reporting Officer must report within 4 weeks (Rule 44(4))

• Anyone wishing to oppose the order must advise the court within 21 days of intimation (Rule 34)

9.     These procedures allow the duties imposed on the Sheriff and Reporting Officer by Chapter 4 to be exercised. The short timescales underpin the Sheriff's duties to determine cases expeditiously. In this way, the Reporting Officer can commence work by consulting the Petition and supporting documents. In advance of the preliminary hearing, the Sheriff will be able to consider possible outcomes - he will know whether the application has been intimated to all interested parties and if it is opposed. He will be able to review the Petition, accompanying documents and the Reporting Officer's views. He will have an initial opportunity to consider whether further documents may be required under Rule 35(3).

10.  Rule 35 regulates preliminary hearing procedure. If the Petition is not opposed, the Sheriff must dispose of it or determine other appropriate procedure (Rule 35(1)) or order further documents to be produced (Rule 35(3)). If it is opposed, he must fix a proof and determine related procedure (Rule 35(1)(b) and Rules 36-38). Alternatively, whether or not opposed, he may continue the preliminary hearing once on cause shown, for not longer than 4 weeks (Rule 35(2)).

11.  Rule 31(2)(b) provides that any Report accompanying a Petition must address specific issues which mirror the principles of the Act. In opposed cases, Answers must be drafted by reference to the Report, not the Petition. It follows such Reports must be concise and accurate. Authors will need to assimilate case files before drafting them. I appreciate in almost all cases this will be onerous and time consuming. However, an application for a Permanence Order may be the first time a court has an interest in a child, making an accurate summary of relevant information essential. A Report will be one of the primary sources of information for a Sheriff preparing for a preliminary hearing and will be the primary source for a Reporting Officer during investigations.

12.  Rule 31(2)(b)(xvi) obliges the Report author to provide "any other information which may be of assistance to the court". That obligation is vital - it reflects the Petitioners' depth of knowledge of the child and highlights the need to communicate it appropriately to the court. Many Reports incorporate Permanence Panel Minutes recommending permanence. In my experience, there is limited benefit doing so. It is often impossible to interpret them in context - for example, A has been under the Petitioner's care for over nine years. It is not averred he is subject to any previous court orders. The Minutes, and to a lesser extent the Report, assume detailed knowledge of his life which the court does not have. I only managed to discern the concerns about X with difficulty. Neither the Minutes nor the Report expand on them. They do not record how any concerns were investigated and/or allayed, nor are detailed reasons given why the Permanence Panel came to its decision.

13.  The solicitor handling the case must be fully instructed before the Petition is drafted, possibly before the Rule 31(2)(b) report is prepared. Information a Social Worker may think is irrelevant may be important to the solicitor. Averments cannot be made unless the solicitor is made aware of evidence which can be led to prove them. In this case, insufficient information was given. Understandably, the solicitor was initially unable to answer my queries. She had to undertake detailed investigations and prepare Affidavits and Productions to address my concerns. Happily, these allayed my concerns.

14.  If these steps are taken, cases can be resolved more expeditiously. Others, not least the child, will be assisted. Reporting Officers will have up to date contact details to visit the child and relevant persons. They will have an accurate summary of the case to focus on during investigations. Sheriffs will have a more detailed understanding of complex cases. Court staff will be able to issue orders more quickly and cross-reference them to existing orders which may have been revoked or varied. Although there were delays in this case, thankfully they have not affected A's best interests in the interim.