Hilary
Term
[2017] UKSC 15
On appeal from: [2016] CSIH 60
JUDGMENT
In the matter of EV (A Child) (Scotland)
In the matter of EV (A Child) (No 2) (Scotland)
before
Lady Hale, Deputy
President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hodge
JUDGMENT GIVEN ON
1 March 2017
Heard on 12 January 2017
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Appellant (KV
(Father))
Janys M Scott QC
Julian Aitken
(Instructed by KW
Law)
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Respondent
Catherine Dowdalls
QC
Mary V Loudon
(Instructed by West
Lothian Council Legal Services)
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Appellant (MB
(Mother))
Kenneth Campbell QC
Julianna Cartwright
(Instructed by
Aitkens, The Family Law Solicitors)
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LORD REED: (with whom Lady
Hale, Lord Kerr, Lord Wilson and Lord Hodge agree)
1.
These appeals arise out of an application for a permanence order under
section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”),
with authority to adopt, brought by West Lothian Council (“the local authority”)
in December 2014. The application relates to a child, “EV”, who was born on 30
December 2013, and has been in care since her birth. It is opposed by the
child’s parents, to whom I shall refer as the mother and father. The
application was granted by the Lord Ordinary on 31 March 2016, following a
preliminary proof of one day and a further proof of eight days. His decision
was upheld by the Second Division, other than in relation to the grant of
authority to adopt and a related prohibition on contact by the parents, on 20
July 2016. Permission to appeal to this court was granted to each of the
parents by an Extra Division on 14 October 2016.
The issues in the appeals
2.
The Extra Division identified a single issue which satisfied the
criterion in section 40A of the Court of Session Act 1988 for the grant of
permission to appeal, namely an arguable point of law of general public
importance which ought to be considered by the Supreme Court at this time. That
issue was whether the guidance given in the case of In re J (Children) (Care
Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 1 AC 680 is
applicable in Scotland, where different legislation applies. The grant of
permission was not, however, restricted to that issue, since it was closely
interconnected with the other grounds of appeal.
3.
In the event, at the hearing of the appeals, there was no issue between
the parties in relation to In re J. They agree that the decision of the
majority in that case, encapsulated in Lord Hope’s “golden rule” (to which I
shall return), applies equally to the legislation with which these appeals are
concerned. The point which prompted the grant of permission to appeal does not,
therefore, require to be decided. It is nevertheless appropriate, given the
uncertainty implicit in the grant of permission, to make some observations
about the issue. I shall do so at a later point.
4.
Neither the Lord Ordinary nor the Second Division followed the approach
laid down in In re J. The first question which arises is whether their
decisions can nevertheless be supported. If not, the second question is whether
the case should be remitted to the Inner House for it to determine the
application on the basis of the evidence led before the Lord Ordinary and such
further evidence as may be appropriate, or whether the application should
simply be refused.
The statutory framework
5.
The legislation governing the making of a permanence order is contained
in sections 80 to 84 of the 2007 Act. Section 80 permits the granting of a
permanence order, defined as an order consisting of the mandatory provision
specified in section 81, such of the ancillary provisions specified in section
82 as the court thinks fit, and, if the conditions in section 83 are met,
provision granting authority for the child to be adopted. The mandatory
provision is a provision vesting in the local authority the parental right to
have the child living with them or otherwise to regulate the child’s residence,
and the parental responsibility to provide guidance to the child. The ancillary
provisions are provisions vesting other parental rights and responsibilities in
the local authority or in another person, and extinguishing parental rights and
responsibilities previously vested in a parent or guardian of the child. The
parental right in respect of the child’s residence which was previously vested
in a parent or guardian is automatically extinguished: section 87.
6.
In relation to section 80, it is important to note section 80(3):
“In making a permanence order in
respect of a child, the appropriate court must secure that each parental
responsibility and parental right in respect of the child vests in a person.”
Parental responsibilities and parental rights include the
responsibility and the right, respectively, “if the child is not living with
the parent, to maintain personal relations and direct contact with the child on
a regular basis”: Children (Scotland) Act 1995, sections 1(1)(c) and 2(1)(c).
If, therefore, the court makes a permanence order, it must ensure that there is
someone who has the responsibility and right to maintain personal relations and
direct contact with the child. That person must be someone other than the local
authority: section 82(1)(a) and (b).
7.
The conditions laid down in section 83 for the granting of authority for
adoption lay down crucial tests, which were discussed in the case of R v
Stirling Council [2016] CSIH 36; 2016 SLT 689, paras 16-18. They include a
requirement that the court must be satisfied that the child has been, or is
likely to be, placed for adoption.
8.
Section 84 sets out the conditions and considerations applicable to the
making of a permanence order. In relation to these, section 84(1), read with
section 84(2), enables the court to make a permanence order without the consent
of the child where the child is aged under 12, as was the position in this
case.
9.
Section 84(3) to (5) is in the following terms:
“(3) The court may not make a
permanence order in respect of a child unless it considers that it would be
better for the child that the order be made than that it should not be made.
(4) 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.
(5) Before making a permanence
order, the court must -
(a) after taking account of
the child’s age and maturity, so far as is reasonably practicable -
(i) give the child the
opportunity to indicate whether the child wishes to express any views, and
(ii) if the child does so
wish, give the child the opportunity to express them,
(b) have regard to -
(i) any such views the
child may express,
(ii) the child’s religious
persuasion, racial origin and cultural and linguistic background, and
(iii) the likely effect on
the child of the making of the order, and
(c) be satisfied that -
(i) there is no person who
has the right mentioned in subsection (1)(a) of section 2 of the [Children
(Scotland) Act 1995] 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.”
10.
These three subsections are of a different character from one another,
and are to be applied in different ways. Section 84(5) is particularly complex.
Subsections (a) and (b)(i) impose duties in respect of ascertaining and
considering the views of the child, so far as is reasonably practicable. In the
present case, given the very young age of the child, those duties did not
arise. Subsection (b)(ii) and (iii) impose duties to have regard to specified
factors. In the present case, two of the factors mentioned in subsection
(b)(ii) are relevant, namely the child’s racial origin and cultural and
linguistic background.
11.
Section 84(5)(c) is of a different nature. It lays down a factual test
in each of subsections (c)(i) and (ii). One or other of those tests must be
satisfied before a permanence order can be made. Section 84(5)(c) therefore
imposes a threshold test. It has to be addressed, and satisfied, before any
issue requires to be considered under the other provisions of section 84. In
the present case, it was paragraph (c)(ii) which was relevant, since both
parents had the right mentioned in paragraph (c)(i). It was therefore
necessary, before a permanence order could be made, for the court to be
satisfied, in relation to each of the parents, that the child’s residence with
that person was likely to be seriously detrimental to her welfare.
12.
Section 84(3) arises only if the test in section 84(5)(c) is met. It
imposes a prohibition on the making of a permanence order unless a specified
requirement is met, namely that it would be better for the child that the order
be made than that it should not be made.
13.
Section 84(4) applies when the court is “considering whether to make a
permanence order and, if so, what provision the order should make”. It has no
bearing on the test imposed by section 84(5)(c), since (1) that is a factual
test which cannot be affected by treating the child’s welfare as the paramount
consideration, and (2) the test must be satisfied before the court reaches the
stage of considering whether to make a permanence order. Once that stage is
reached, however, section 84(4) is plainly important.
The relevant Scottish case law
14.
In TW v Aberdeenshire Council [2012] CSIH 37; 2013 SC 108, the
Extra Division correctly rejected an argument that sections 84(3) and (4) had a
particular core status. It said that subsections (3), (4) and (5) impose
separate requirements, all of which have a bearing on whether a permanence
order should be made. Lord Bonomy, giving the opinion of the court, stated at
para 13:
“It is ... difficult to envisage
circumstances in which a court, faced with an application for a permanence order,
would not first of all address the factors that arise under subsection (5)(c),
in this case paragraph (c)(ii), and any other matters arising under subsection
(5), always bearing in mind the requirement of subsection (4) to regard the
need to safeguard and promote the welfare of the child throughout childhood as
the paramount consideration, and only then consider the application of the ‘no
order principle’ in subsection (3), again keeping subsection (4) in mind.”
15.
The statement that section 84(5)(c) raises factors which have to be
addressed does not make clear its true significance: it lays down factual tests
which must be satisfied before a permanence order can be made. The passage is
also mistaken in stating that subsection (4) has to be borne in mind when
addressing subsection (5): I have explained why subsection (4) does not affect
the test imposed by subsection (5)(c), and it is equally incapable of affecting
the duty to have regard to the matters mentioned in subsection (5)(a) and (b). Nevertheless,
the passage provides clear guidance as to the need to address the issue arising
under subsection (5)(c) before considering subsections (3) and (4).
16.
Clearer guidance was provided by Lord Drummond Young, giving the opinion
of the Extra Division in R v Stirling Council. At para 13, Lord Drummond
Young stated:
“Thus section 84 imposes two
critical conditions if a permanence order is to be made in a case where the
natural parent does not consent. First, in terms of subsection (3), the court
must consider that it would be better for the child that the order should be
made than that it should not be made; that decision must be made in the light
of the requirement of subsection (4) that the welfare of the child throughout
childhood is to be the paramount consideration. Secondly, in terms of
subsection (5)(c)(ii), the court must be satisfied that the child’s residence
with the parent is, or is likely to be, seriously detrimental to his or her
welfare. Of the two conditions, that in subsection (5)(c)(ii) is the more
fundamental: it imposes a threshold test, in the sense that, if it is not
satisfied, the court is not permitted to dispense with the parent’s consent. It
is only if the test is satisfied that the court requires to go on to consider
the welfare of the child ... The critical point is that the requirements of
subsection (5) set a threshold test, and unless that test is satisfied no
permanence order can be made and any further consideration of the other
provisions of section 84 is irrelevant.”
Subject to the observation, in relation to the first
sentence, that section 84 applies to all applications for a permanence order,
and that no question of parental consent arises unless authority for adoption
is sought, I respectfully agree.
17.
Lord Drummond Young added at para 15:
“The threshold test is in our
opinion a matter of fundamental importance, and we must express regret at the
manner in which section 84 of the Adoption and Children (Scotland) Act 2007 is
structured. In that section the fundamental threshold provision comes at the
end, after the subsections dealing with the welfare of the child. It would
clearly be more sensible to state the threshold test at an earlier point,
before the welfare provisions, because the threshold test must be satisfied before
any of the other provisions becomes relevant. As matters stand there is an
obvious risk that the sheriff will fail to appreciate the fundamental
importance of the criterion in subsection (5). That is what appears to have
happened in the present case.”
And also, as will appear, in the present case.
The judge’s function
18.
In determining the issue arising under section 84(5)(c)(ii), and indeed
the other issues arising under that section, the judge is the primary decision-maker.
He is wholly responsible for deciding the issues arising under the legislation
on the basis of his own findings on the evidence. His role is not that of a
judge exercising a supervisory jurisdiction (as, for example, in an application
for judicial review), assessing whether the local authority had a reasonable
basis for its concerns and its consequent actions.
19.
In this regard, guidance can be taken from decisions concerned with the
similar judicial function in relation to the corresponding threshold test in
England and Wales. Section 31(2) of the Children Act 1989 requires the court to
be satisfied that the child concerned “is suffering, or is likely to suffer,
significant harm”, before it can make a care order or supervision order. Such
orders place a child in the care or under the supervision of a local authority,
and for those purposes the local authority is given parental responsibility for
the child. Section 31(2) shares with section 84(5)(c)(ii) of the 2007 Act the
fact that it imposes a threshold test for the making of orders concerned with
the care of children, the requirement that the court must be satisfied, and the
provision that the matter of which the court must be satisfied is a likelihood:
in the English provision, a likelihood of significant harm to the child, and in
the Scottish provision, a likelihood of serious detriment to the child’s
welfare.
20.
The case of In re B (Children) (Care Proceedings: Standard of Proof)
(CAFCASS intervening) [2008] UKHL 35; [2009] AC 11 concerned the question
whether the threshold condition in section 31(2) of the 1989 Act was satisfied.
Lady Hale emphasised at para 57 the importance of keeping separate the roles of
the courts and the local authorities. Having explained the functions of local
authorities in the protection of children from harm, her Ladyship continued:
“The task of the court is to hear
the evidence put forward on behalf of all the parties to the case and to
decide, first, whether the threshold criteria are met and, second, what order
if any will be best for the child. While the local authority may well take
preliminary or preventive action based upon reasonable suspicions or beliefs,
it is the court’s task when authorising permanent intervention in the legal
relationship between parent and child to decide whether those suspicions are well
founded ...
To allow the courts to make
decisions about the allocation of parental responsibility for children on the
basis of unproven allegations and unsubstantiated suspicions would be to deny
them their essential role in protecting both children and their families from
the intervention of the state, however well intentioned that intervention may
be. It is to confuse the role of the local authority, in assessing and managing
risk, in planning for the child, and deciding what action to initiate, with the
role of the court in deciding where the truth lies and what the legal
consequences should be. I do not underestimate the difficulty of deciding where
the truth lies but that is what the courts are for.” (paras 58-59)
21.
In the later case of In re S-B (Children) (Care Proceedings: Standard
of Proof) [2009] UKSC 17; [2010] 1 AC 678, again concerned with section
31(2) of the 1989 Act, Lady Hale emphasised that the decision whether to make
an order interfering with individual rights must be taken by an independent and
impartial court. In order to bring home to judges that their role is not merely
supervisory, she drew an analogy with criminal proceedings:
“Social workers are the
detectives. They amass a great deal of information about a child and his
family. They assess risk factors. They devise plans. They put the evidence
which they have assembled before a court and ask for an order.
... The court subjects the
evidence of the local authority to critical scrutiny, finds what the facts are,
makes predictions based upon the facts, and balances a range of considerations
in deciding what will be best for the child. We should no more expect every
case which a local authority brings to court to result in an order than we
should expect every prosecution brought by the CPS to result in a conviction.
The standard of proof may be different, but the roles of the social workers and
the prosecutors are similar. They bring to court those cases where there is a
good case to answer. It is for the court to decide whether the case is made
out.” (paras 18-19)
The application of the threshold test
22.
It follows that decisions under section 31(2) of the 1989 Act as to a
future likelihood of harm cannot be based merely on allegations or suspicions:
a conclusion that harm is likely must be based on findings of fact. Lady Hale put
the matter in this way in In re J, para 49:
“Care courts are often told that
the best predictor of the future is the past. But prediction is only possible
where the past facts are proved. A real possibility that something has happened
in the past is not enough to predict that it will happen in the future. It may
be the fact that a judge has found that there is a real possibility that
something has happened. But that is not sufficient for this purpose. A finding of
a real possibility that a child has suffered harm does not establish that he
has. A finding of a real possibility that the harm which a child has suffered
is ‘non-accidental’ does not establish that it was. A finding of a real
possibility that this parent harmed a child does not establish that she did.
Only a finding that he has, it was, or she did, as the case may be, can be
sufficient to found a prediction that because it has happened in the past the
same is likely to happen in the future. Care courts need to hear this message
loud and clear.”
23.
Facts have to be established on a balance of probabilities. Lord
Hoffmann explained this in In re B, para 2:
“If a legal rule requires a fact
to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it
happened. There is no room for a finding that it might have happened. The law
operates a binary system in which the only values are zero and one. The fact
either happened or it did not. If the tribunal is left in doubt, the doubt is
resolved by a rule that one party or the other carries the burden of proof. If
the party who bears the burden of proof fails to discharge it, a value of zero
is returned and the fact is treated as not having happened. If he does
discharge it, a value of one is returned and the fact is treated as having
happened.”
More recently, in In re J, Lord Hope said that
“the golden rule must surely be that a prediction of future harm has to be
based on facts that have been proved on a balance of probabilities” (para 84).
24.
This does not require the courts to do anything unusual. As Lord
Nicholls of Birkenhead remarked in In re H (Minors) (Sexual Abuse: Standard
of Proof) [1996] AC 563, 589, to resolve disputed issues of relevant fact
in order to reach a conclusion on the issue it has to decide is a commonplace
exercise carried out daily by courts. Lady Hale put the point more pithily in
the passage cited from In re B: deciding where the truth lies is what
the courts are for.
25.
The considerations which led to these conclusions in the English cases
are equally applicable to the Scottish legislation. Foremost among them is the
need to construe the legislation in a way which strikes a proper balance
between the need to safeguard children and the need to respect family life: a
consideration which applies equally to the making of permanence orders under
the Scottish legislation. As Lady Hale said in In re B, para 54:
“The threshold is there to protect
both the children and their parents from unjustified intervention in their lives.
It would provide no protection at all if it could be established on the basis
of unsubstantiated suspicions: that is, where a judge cannot say that there is
no real possibility that abuse took place, so concludes that there is a real
possibility that it did. In other words, the alleged perpetrator would have to
prove that it did not.”
26.
A second consideration is the wording of the test itself, and comparison
with the wording of other provisions, such as those concerned with orders of an
emergency character. In that regard, the most significant terms - “satisfied”
and “likely” - are common to both the Scottish and the English provisions. In
particular, as Lord Nicholls observed in In re H at pp 585-586, the need
for the court to be judicially “satisfied” is an indication that unresolved
doubts and suspicions cannot form the basis of the order, and can be contrasted
with the statutory language used where suspicion may be enough (as, for
example, in relation to orders under sections 35 and 37 of the Children’s
Hearings (Scotland) Act 2011). It also indicates that the burden of proof rests
on the party seeking the order.
27.
The requirement in the threshold test that residence with the parent
should be not merely detrimental to the welfare of the child, but “seriously”
detrimental, is also of crucial importance. In R v Stirling Council, Lord
Drummond Young referred at para 14 to several decisions of the House of Lords
and of this court concerned with the corresponding issue arising under the
English threshold test, namely whether there is a likelihood of “significant”
harm. They included the case of In re B (A Child) (Care Proceedings:
Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, where the English
authorities are reviewed. As Lord Drummond Young noted, the fundamental point is
that depriving the parents of a child of their parental authority at common law
is a most serious matter, and it should only be done if strict criteria are
satisfied. It is, emphatically, not enough to show that a child would benefit
from being brought up elsewhere. This is made clear in the speech of Lord
Templeman in In re KD (A Minor) (Ward: Termination of Access)
[1988] AC 806, 812:
“The best person to bring up a
child is the natural parent. It matters not whether the parent is wise or foolish,
rich or poor, educated or illiterate, provided the child's moral and physical
health are not endangered.”
28.
The implications of that statement were considered in In re L (Care: Threshold Criteria [2007] 1 FLR 2050, a case which, like the present
case, concerned parents with learning difficulties. Hedley J, having quoted
Lord Templeman, continued:
“It follows inexorably from that,
that society must be willing to tolerate very diverse standards of parenting,
including the eccentric, the barely adequate and the inconsistent. It follows
too that children will inevitably have both very different experiences of
parenting and very unequal consequences flowing from it. It means that some
children will experience disadvantage and harm, while others flourish in
atmospheres of loving security and emotional stability. These are the
consequences of our fallible humanity and it is not the provenance [semble:
province] of the state to spare children all the consequences of defective
parenting.” (para 50)
He concluded that the children were suffering, and likely
to suffer, some harm to their intellectual development as a result of their
parents’ inadequacies, but that it was not of a character or significance to
justify compulsory intervention.
29.
Finally, in relation to the application of the legislation, it is
important that the court’s reasoning should demonstrate that it has applied the
legislation correctly. This requires more than the formulaic repetition of the
statutory language. It should be apparent that the court has analysed the
arguments for and against making a permanence order (including the various
provisions which might realistically be under consideration) and, where
appropriate, an order granting authority for adoption. Its reasons for
preferring one option to the potential alternatives should be explained. In
order to carry out this task, the court requires evidence which addresses all
the options which are realistically available and analyses the arguments for
and against each option. If the court finds that the threshold test is
satisfied, it should be clear (1) what is the nature of the detriment which the
court is satisfied is likely if the child resides with the parent, (2) why the
court is satisfied that it is likely, and (3) why the court is satisfied that
it is serious.
The Lord Ordinary’s opinion
30.
Considered in the light of the foregoing, the Lord Ordinary’s opinion
is, unfortunately, deficient in a number of respects. In fairness, it should be
stressed that, since he gave judgment before the decision of the Inner House in
R v Stirling Council, he did not have the benefit of the guidance
provided in that case.
31.
The Lord Ordinary did not set out in his opinion the material provisions
of sections 80 to 84 of the 2007 Act, or identify the separate conditions, each
of which has to be satisfied before a permanence order, or an order granting
authority for adoption, can be made. He did not distinguish in his opinion
between the making of a permanence order and the granting of authority for
adoption. He did not refer to the case of In re J, although this court
was informed that it had been relied on by counsel for the parents. His general
approach was to consider whether the local authority’s actions had been
justified, in the sense that they had responded in a reasonable manner to
concerns for which an evidential basis existed. As a consequence, he made few
findings of fact in relation to the issues in dispute, and none in relation to
the threshold issue arising under section 84(5)(c)(ii).
32.
It was a matter of agreement before the Lord Ordinary that the child’s
parents lived together. Both parents had experienced learning difficulties
throughout their lives. It was also agreed that on the date of the child’s
birth, a child protection order was granted by the Sheriff on the ex parte
application of the local authority, with a condition that there should be no
contact between the father and the child. That condition has remained in place
ever since. The Lord Ordinary was provided with reasoned decisions maintaining
that condition. The first was taken by a children’s hearing on 10 January 2014,
when an interim compulsory supervision order was made. Later decisions were
taken during February, March, April and May 2014 when the interim compulsory supervision
order was continued, and on 12 June 2014, when a compulsory supervision order
was made. None of that reasoning is referred to in the Lord Ordinary’s opinion,
with the consequence that the decision to deny the father all contact with his
child over the entirety of her life to date (with the exception of one hour,
for the purposes of these proceedings), is unexplained.
33.
It was also agreed that on 10 January 2014 the children’s hearing
decided to refer the grounds of referral to the Sheriff for proof, and that on
23 May 2014 amended grounds of referral were held to be established. The Lord
Ordinary was provided with the amended grounds of referral, but his opinion does
not explain what they were.
34.
It was also agreed that a parenting capacity assessment was carried out
in relation to the mother. The Lord Ordinary was provided with a copy of the
assessment report. No such assessment was carried out in relation to the
father. The Lord Ordinary’s opinion does not explain why that was. The Lord
Ordinary also narrates that he was provided with a copy of a report prepared by
a Dr Coupar, but the opinion contains no indication of the subject-matter of
the report.
35.
The Lord Ordinary explains that the primary source of the local
authority’s concerns in relation to the child arose as a result of the
relationship between her parents. There were three main causes for these
concerns, all of them arising out of what the Lord Ordinary described as
“perceived concerns about the behaviour of [the father]”. The first concern,
which appears to have been of particular importance to the local authority,
related to “criminal charges of alleged sexual conduct ... brought in England
in 2010”. The Lord Ordinary does not explain what those charges were. Whatever
they may have been, they were dropped within a short period of being made,
because the complainant had given inconsistent and contradictory accounts. The
police did not pass the case to the Crown Prosecution Service. It appears that
the complainant was a vulnerable female person who suffered from learning
difficulties. According to the father’s affidavit, she was a friend of his who
had wanted to have a sexual relationship with him. He had not been interested.
She then made allegations to the police that he had raped her. This court has
been informed that they were both aged about 19 at the time. The Lord Ordinary
narrates that he heard evidence from a police officer that the father had given
a statement in which he accepted that he had had consensual sex with the
complainant. The father also gave evidence before the Lord Ordinary. He
accepted that he had said what was recorded in the statement, but denied that
it was true.
36.
Having narrated this evidence, and expressed reservations about the
evidence given by the father in relation to this matter, the Lord Ordinary
stated:
“In these circumstances it appears to me to be established
on the balance of probabilities that the concerns harboured by the petitioners
in relation to the [father’s]’s sexual proclivities were justified. In arriving
at that conclusion I should make it clear that I am making no finding in
relation to whether or not the sexual allegations made in 2010 were true or
not. The relevancy or otherwise of these allegations is not a matter for me,
nor have I heard any evidence in relation to the relevancy of these matters. My
finding is confined to concluding that, notwithstanding the lack of any
criminal conviction, there was material available to the petitioners at the
time of the child EV’s birth relative to the [father]’s behaviour towards
vulnerable females which they could not ignore and were required to have
consideration of when formulating a policy or plan towards the ongoing care of
the child EV.” (para 20)
37.
This passage epitomises the Lord Ordinary’s misunderstanding of his
function. As previously explained, it was not his function to determine whether
the (unexplained) concerns harboured by the local authority about the father’s
“sexual proclivities” (whatever may have been meant by that phrase) were
justified. The conclusion stated in the last sentence is irrelevant to the task
which he had to perform. The entire discussion of this topic is beside the
point unless the allegations are relevant to the issues which the Lord Ordinary
had to determine. The allegations concern the father’s sexual behaviour with
another adult with learning difficulties, three years before the child was born.
The Lord Ordinary does not address the question whether, or how, they might be
relevant to the question whether the child’s residing with her parents would be
seriously detrimental to her welfare. If the allegations are relevant, however,
then the Lord Ordinary has to make a finding of fact, on the balance of
probabilities, as to whether the allegations are true. If he is unable to make
such a finding, then he has to find that the allegations are unproved, and dismiss
them from his mind.
38.
The Lord Ordinary noted that a subsidiary matter arising out of these
allegations concerned the period before the allegations were dropped, when the
father was briefly on police bail. The father accepted in his evidence that he had
entered the college where the complainant was studying. This was reported to
the police, as there was a bail condition not to approach the college. There
was also evidence that the father had admitted the complainant to his home.
This was regarded by the police as a breach of a bail condition not to approach
the complainant. The father accepted in his evidence that these events had
occurred. No criminal charges were brought. The Lord Ordinary appears to have
accepted that the father had contravened his bail conditions, although the way
in which he expressed his conclusion again shied away from making a finding of
fact: he said that it appeared to him that there was “evidence before the court
to support the proposition”. He did not address the question whether the
breaches were relevant to the issue arising under section 84(5)(c)(ii). It is
difficult to see what significance they could have had.
39.
The second matter of concern to the local authority was an allegation concerning
the mother’s daughter from a previous relationship, whom I shall refer to as
MP. MP did not live with her mother, but was in care. Evidence was given by the
social worker responsible for EV that she (the social worker) had been told
that other workers in a homeless unit where the mother had once stayed had been
told by the mother that the father had said to her that he would like to have
sex with MP, who was aged about eight at the time. The social worker also said
that, at a meeting she attended, the father had adopted the position that he
should not have said this out loud. The mother, in her evidence, said that she
accepted the father’s assurance that the statement was either not said or, if
it was, was uttered as a joke. The Lord Ordinary says nothing about whether
this matter was addressed in the father’s evidence, or, if it was, what he said
about it. Nor does the Lord Ordinary make any finding about this matter, beyond
saying that “regard required to be had to that remark by the [local
authority]”. Whether that statement was intended to bear the implication that
the remark was actually made is not clear. The Lord Ordinary does not address
the significance of this matter in relation to the threshold test. That would
depend on what inferences should be drawn from the remark, if it was made:
inferences which might not be as straightforward as in the case of a man with
normal social skills. Was it meant to be a joke? Or was it a serious expression
of sexual desire?
40.
The third matter of concern to the local authority was described by the
Lord Ordinary as follows:
“The third concern in relation to
the [father] were threats made by him to social workers in August 2013 that he
would kill a support worker and social worker in the event that they refused to
allow him and the [mother] to have the baby after its birth. In the same vein
threats, or a message of a threatening nature, made by the [father] to the
[mother] also in August 2013. These threats were reported to the police, were
the subject of a criminal prosecution and resulted in [a] conviction.” (para
13)
In relation to the first of these matters, the Lord
Ordinary states that the threats against social workers were spoken to by the
two persons against whom the threats were uttered. The father accepted that he
made the utterances, but said that they were merely hot air or said in the heat
of the moment.
41.
Before this court, it was common ground that the Lord Ordinary had
misunderstood the evidence in relation to this matter. According to counsel,
there was only one incident involving a threat, not two. There was no evidence
from social workers who had been threatened. The matter arose out of a
telephone call which the father had made to the mother when she was in a car with
a social worker in August 2013, four months before the child was born. There
were already plans for the child to be removed from the parents as soon as she
was born. The father said to the mother over the telephone something to the
effect that he would kill social work staff if he and she did not get custody. Evidence
that this had occurred was given by a social worker who had not been present. It
was agreed that the father pled guilty to a charge under section 127(1) of the
Communications Act 2003 in relation to this matter and was fined £135. It is
agreed that this is his only criminal conviction.
42.
The Lord Ordinary considered the relevance of this matter, as he
understood it, only in relation to the actions taken by the local authority.
His conclusion was that “there being evidence of the threats being uttered ...
they were factors which the [local authority] required to have regard to”. The
real question, if it was found that a threatening statement had been made, was
how much significance, if any, should be attached to it by the court when
considering whether the child’s residence with her father was likely to be
seriously detrimental to her welfare. Both the court and the local authority
should maintain a sense of perspective: if this was merely a momentary
expression of anger by a father who had much to be angry about, it should not
be given exaggerated importance in determining the child’s future.
43.
In the light of all this evidence, the Lord Ordinary stated that “there
was plainly established before the court evidence of the concerns which caused
the [local authority] to proceed down the route of permanence which ultimately
led to the presentation of this petition to the court”. Once again, the Lord
Ordinary’s focus appears to have been on assessing whether the local authority’s
actions had a proper basis.
44.
So far as the care of the child was concerned, the Lord Ordinary
explained that the local authority’s views were critically dependent on the
fact that her parents were a couple. It had been made clear to the mother that,
if she left EV’s father, the local authority would reassess the case. Although
the mother would have difficulties caring for a young child, efforts could be
made to assist her and thereafter assess her suitability as a custodian for her
child. Her unwillingness to leave the father rendered that course of action
impossible, in the view of the local authority.
45.
In relation to the parenting skills of the mother, the Lord Ordinary
said that there was evidence, which he accepted, of a lack of engagement with social
workers, and of an inability to grasp more than basic parenting skills. An
expert in social work practice named Helen Stirling, giving evidence on behalf
of the mother, said that, even with extensive support from social workers, the
mother “might only even master physical care tasks, and not manage the more
complex tasks of meeting EV’s emotional and social needs”.
46.
In relation to these matters, it is relevant to note that the mother had
two children by a previous partner, one of them being the child MP referred to
earlier. She and her partner looked after those children (born in 2004 and
2007), without significant support from the local authority, until October
2012, when the couple separated and the children went to live with their
father. In 2013 their father died, and the children were accommodated by the local
authority, but continued to have regular contact with their mother. The
mother’s relationship with EV’s father was a factor in the local authority’s
decision that the children should not be in her care. This court was informed
that the mother has now been prevented even from having contact with the
children.
47.
So far as EV’s father is concerned, the Lord Ordinary stated that the
social workers were concerned about his ability to acquire parenting skills and
to cooperate with them. As mentioned earlier, however, the local authority had
carried out no parenting assessment. The father had been permitted to see the
child for one hour, for the purpose of allowing observation of his interaction
with the child by an expert witness instructed on his behalf. The Lord Ordinary
found the witness’s evidence of limited utility, since it was based on a single
contact session. The Lord Ordinary noted that it was not suggested on the
father’s behalf that he was able to demonstrate the parenting skills required
for the care of the child.
48.
The Lord Ordinary said very little in his opinion about the child
herself, and her particular needs. This court was told that the child may have
global developmental delay. It is unclear whether that matter was raised before
the Lord Ordinary. If it was, he made no finding about it. If that is correct,
however, then it is something which may be relevant to the ability of the
parents to care for her, and also to the prospects of her being adopted. It may
also bear on the question, which can arise in cases involving parents with
learning difficulties, whether the child’s residing with them might harm her
own intellectual development.
49.
Nor did the Lord Ordinary explain whether the alternative to her
residing with her parents was, or was not, a permanent placement, with carers
who were committed to her safety, welfare and wellbeing, where she would
receive a high standard of care until adulthood. In fact, as this court was
informed, it is not envisaged that she will continue to reside with the foster
carer with whom she has lived since she was three days old, since her foster
carer does not intend to adopt her; and the local authority has not found any
adoptive placement for her. The Lord Ordinary did not make any finding as to
whether she was likely to be placed for adoption. Nor did he say anything said
about her racial, cultural and linguistic background. She is of mixed race, her
mother being white and her father being a Sri Lankan whose first language is
Tamil. As explained earlier, the court is under a statutory duty, under section
84(5)(b)(ii) of the 2007 Act, to have regard to the child’s racial origin and
cultural and linguistic background.
50.
The Lord Ordinary then turned to the issue of contact, noting that there
was evidence that the child derived no significant benefit from contact with
her mother, and that the father had had contact with the child on only one
occasion. Unsurprisingly in the circumstances, it was conceded that there was
no existing bond between the child and her father (nor, of course, is she
likely to have an existing bond with any potential adoptive parents). The Lord
Ordinary made an order prohibiting contact between the child and her parents.
The result was that there was no person in whom the parental responsibility and
parental right in respect of contact was vested, contrary to the statutory duty
of the court, under section 80(3) of the 2007 Act, to “secure that each
parental responsibility and parental right in respect of the child vests in a
person”.
51.
Finally, the Lord Ordinary said that he should mention that there was
some evidence in relation to the parents’ difficulties in coping with financial
matters and in relation to consistent maintenance of appropriate standards of
cleanliness and hygiene in their accommodation. He found these matters proved,
but said that they were of less significance than the concern with which he had
dealt at greater length (ie the concerns about the father’s behaviour).
52.
The Lord Ordinary completed his opinion by expressing his conclusion as follows:
“I am satisfied that both for the
safety and welfare of the child throughout her childhood it is necessary that
the orders sought should be granted.” (para 28)
That conclusion dealt with the basic permanence order and
the grant of authority for adoption without differentiation. In expressing his
conclusion in that way, the Lord Ordinary may have had in mind the paramount
consideration mentioned in section 84(4), namely the need to safeguard and
promote the welfare of the child throughout childhood. As Lord Drummond Young
explained, that issue did not arise unless and until the test in section
84(5)(c)(ii) was satisfied. Or he may have had in mind the test under section
83(2)(d) for dispensing with parental consent to adoption, namely that the
welfare of the child requires it. It is impossible to say.
53.
What can be said, however, is that the Lord Ordinary did not address the
threshold issue arising under section 84(5)(c)(ii). Nor was any reference made
to the matters to which section 84(5)(b)(ii) and (iii) required regard to be
had. Equally importantly, the Lord Ordinary did not support his conclusion by
an analysis of the benefits and detriments of the available options. Although
much was said about the local authority’s concerns about the father’s behaviour
years earlier, nothing was said, for example, about how the child’s current
foster care arrangements were working, or about the prospects of a suitable
adoptive placement being found. There was no analysis of the merits of her
living with a foster carer who has no intention of adopting her, as compared
with her living with her parents. At the most basic level, the possibility of
her parents’ being able to offer her a permanent home might have been a
relevant factor, particularly if the prospects of her being adopted were poor,
to set against the negative factors.
The proceedings in the Inner House
54.
Before the Extra Division, it was conceded that the Lord Ordinary’s
decision to grant authority for adoption could not be supported. So far as the
permanence order was concerned, the Lord Justice-Clerk, giving the opinion of
the court, treated the deficiencies of the Lord Ordinary’s opinion as more
apparent than real. She said that the Lord Ordinary, as the family judge, could
safely be taken to have a sound understanding of the relevant law. This was
supported by his having recorded counsel’s agreement that the correct
interpretation of “the legal test for the making of a permanence order”, as he
put it, was that set out in TW v Aberdeenshire Council. The Lord
Ordinary’s conclusion, set out at para 52 above, was glossed as addressing the
issue raised by section 84(5)(c)(ii):
“His reference not only to welfare
but to the child’s safety indicates that he had the issue of serious detriment
at the forefront of his mind. He specifically said that he had concern as to
the welfare of the child throughout her childhood. His reference to necessity
indicates that he had proper regard to the proportionality of his decision. We
are satisfied that the Lord Ordinary both identified and applied the correct
test” (para 30)
55.
With great respect, I am unable to agree. Section 84(5)(c)(ii) does not
refer to safety. Nor does it refer to the welfare of the child throughout
childhood: that is a phrase which appears in section 84(4). The use of that
phrase suggests that the Lord Ordinary’s conclusion may have been expressed
with section 84(4) in mind, but, notwithstanding his reference to TW v
Aberdeenshire Council, there is nothing to indicate that he was addressing
the threshold test in section 84(5)(c)(ii). In the absence of any indication in
his opinion that he identified and addressed the correct test, he cannot be
assumed to have done so merely because he is a specialist judge.
56.
The Second Division treated the Lord Ordinary’s focus on the local
authority’s concerns about the father as being of less importance than it
appeared, since “this was against a background of accepted deficiencies in the
parents’ ability to provide basic elements of care”. In that regard, the Lord
Justice-Clerk said that it was not disputed that both parents had serious
learning difficulties and would require considerable support from the local
authority. She said that the Lord Ordinary had accepted the evidence of Helen
Stirling to the effect that, even with support, it was likely that the mother
“would not” manage the tasks of meeting the child’s emotional and social needs.
The Lord Ordinary had noted that it was not suggested that the father was able
to show the necessary parenting skills required for the care of the child. Of
less significance, but proven nonetheless, was that the parents had
difficulties with financial matters, and in consistent maintenance of
appropriate standards of cleanliness and hygiene in their accommodation.
57.
In relation to these matters, the Lord Ordinary did not find that the
threshold test in section 84(5)(c)(ii) was met on the basis of deficiencies in
the care which the child might receive if residing with her parents. Ms
Stirling’s evidence in relation to the mother was that she “might not” manage
the more complex tasks. It also has to be borne in mind that the mother had
brought up her two older children with her previous partner. So far as the
father is concerned, it was not for him to show that he possessed the necessary
parenting skills. The onus lay on the local authority to demonstrate that he
did not, and that any resulting risk to the welfare of the child could not be
addressed by the provision of support. The local authority was not in a
position to adduce evidence on the point, having failed to carry out a
parenting assessment. There was no finding as to the level of assistance which
the parents might require. The issues relating to financial management and
cleanliness were treated by the Lord Ordinary as being of relatively minor
significance.
58.
Turning to the local authority’s concerns about the father’s behaviour,
the Lord Justice-Clerk described these as “serious concerns, established in
evidence”. It is true that the Lord Ordinary accepted that the concern relating
to a threatening statement had been established in evidence, although he
misunderstood the evidence about this, as explained earlier, and did not
address the question of its significance in relation to the threshold test. It
also appears to be correct to say that the breaches of bail were established.
Unlike the Lord Ordinary, the Lord Justice-Clerk considered their relevance,
and concluded that they suggested “a lack of thought as to the consequences of
his actions, and an inability to learn from his mistakes”. That is a reasonable
conclusion, but it is of little apparent significance in relation to the
threshold test.
59.
In relation to the charges made against the father following a complaint
by a woman with learning difficulties, the Lord Justice-Clerk stated that “the
Lord Ordinary was careful to recognise that he was not in a position to
determine whether there had been any truth in the criminal charges ... and that
he should not attempt to do so”. As previously explained, however, the Lord
Ordinary could only take the father’s alleged behaviour into account if he was
satisfied, on a balance of probabilities, that the father had actually behaved
as alleged, and that his proved behaviour was relevant to the question in
issue. In that regard, the Lord Justice-Clerk concluded that the Lord Ordinary
“considered that the [father] had a relationship with the complainer, contrary
to denials made at various stages, including denials made on oath”. That way of
putting the matter, however, leads to the question: what does it have to do
with the making of a permanence order, if a young man with learning
difficulties had a relationship with a young woman with similar difficulties
several years before his child was born, and lied when asked about it
afterwards? The whole point of the concern was the allegation that the father’s
behaviour was of a criminal character: indeed, although the nature of the
charges is unexplained, it is known that the complaint was of rape. As earlier
explained, that could only be relied on as the basis of a finding that the
threshold test was satisfied, if, in the first place, the allegation was proved
to be true. The Lord Ordinary expressly stated that he was “making no finding
in relation to whether the sexual allegations made in 2010 were true or not”.
60.
In relation to the remaining concern, arising from the father’s alleged
statement relating to MP, the Lord Justice-Clerk inferred from the Lord
Ordinary’s opinion that he had accepted that the statement had been made. She
related this acceptance to the Lord Ordinary’s reference, in his conclusion, to
EV’s “safety”. It appears, from the Lord Justice-Clerk’s linking the allegation
concerning MP to EV’s safety, that she understood the Lord Ordinary to be
implying that the father might sexually assault his own child. If the Lord
Ordinary intended to imply that there was a real possibility that the father
would sexually assault his daughter, then it is far from clear from what he
wrote in his opinion. Such an important finding should not be left as a matter
of inference.
61.
The Lord Justice-Clerk continued:
“Even if we had not been satisfied
as to the adequacy of the Lord Ordinary’s expressed opinion, had the matter
been at large for this court, we would have made a permanence order. Set
against the background of the [parents’] continuing lack of parental skills,
the findings in relation to the three areas of concern are sufficient to meet
the threshold test. The comments made in respect of the [mother’s] eight year
old daughter raise grave concerns. It is plain from the Lord Ordinary’s account
of the way in which the [father] gave evidence and the nature of the evidence
given, that the [father] is unreliable and lacks understanding of the significance
of his sexual conduct. The parents reside together, and the [mother] has made
it clear that there is no prospect of that situation changing. Were the child
to reside with her, the child would also be residing with the [father]. Such a
situation would run the risk of serious detriment to her welfare. Taking
account of all the matters upon which the Lord Ordinary made findings, we are
satisfied that not only has the threshold test been met, but also that it would
be better for the child that the order be made than that no order be made.”
(para 41)
The only alteration which the court therefore made to the
Lord Ordinary’s order, other than quashing the grant of authority for adoption,
was to remove a prohibition on contact by the parents, which the Lord Ordinary
had imposed in anticipation of adoption.
62.
It is entirely understandable that the Second Division should have
sought to avoid further delay in determining the future of this young child.
Nevertheless, with the greatest respect, the Lord Ordinary’s opinion did not
provide a satisfactory basis for the Inner House to grant the application
itself. In relying on the Lord Ordinary’s opinion to justify the conclusion
that the threshold test had been met and that a permanence order should be
made, the Second Division rendered their conclusion vulnerable to some of the
same criticisms as his opinion. It involved taking account of unproved
allegations of criminal conduct, contrary to the guidance given in In re J, which
it is now conceded should be followed when applying the Scottish legislation.
It involved finding that the threshold test was satisfied without clearly
explaining what exactly the apprehended detriment was, why it was considered
serious, and why it was considered likely (a “risk” of serious detriment not
being enough). It involved no consideration of the child’s racial origin and
cultural and linguistic background, to which the court is required by statute
to have regard. It involved the same failure as the Lord Ordinary’s opinion to
explain satisfactorily why a permanence order should be made, on the basis of a
reasoned analysis of the available options and an assessment of their
respective pros and cons.
What next?
63.
It is clear that the appeals must be allowed. Parties were divided as to
what should happen next. The local authority wishes the case to be remitted to
the Inner House, so that it can re-consider the reclaiming motions on the basis
of the transcript of the evidence led before the Lord Ordinary, the documentary
evidence before him, and such additional evidence as may be necessary and appropriate.
The mother and father, on the other hand, would prefer the application for the
permanence order to be refused.
64.
The prospect of the Inner House having to go through nine days’ worth of
evidence and determine the application on that basis is unattractive, for
several reasons. The evidence is now somewhat stale, the proof having been
heard over a year ago. Events during the intervening period may be relevant,
particularly given that the case concerns a young child. More importantly, as
the Lord Ordinary made clear, the case is also one where an assessment of the
evidence of the parents is particularly difficult, because of their learning
difficulties. In particular, an assessment of the significance of the statement
concerning MP, if proved to have been made, may well be influenced by the
impression which the court forms of the father. Much may turn on whether, if
proved to have been made, it is regarded as signifying a real possibility that
KV would sexually abuse his daughter.
65.
This is therefore a case where there may be a significant benefit in
seeing and hearing the evidence, rather than reading a transcription of it. So
far as can be judged from the opinions below, the evidence led may in any event
have failed to focus adequately on the child herself and her needs, as distinct
from the concerns held by the local authority about what the father may have
said or done several years ago (for the most part, in unrelated contexts). It
is also apparent that the local authority still considers that adoption is the
best option for the child, and will therefore need to make a further
application to the court in any event.
66.
In these circumstances, the most sensible way forward is for this court
to allow the appeals and refuse the petition, leaving it to the local authority
to commence fresh proceedings as and when that may be appropriate. That will
also allow parties - in particular, the local authority - an opportunity to
ensure that the evidence provided to the court focuses on matters which are
truly relevant to the issues which the court has to determine. The local
authority will also have an opportunity to reconsider whether to carry out a
parenting assessment in respect of the father.
