Mother wins appeal challenging adoption order

The Inner House of the Court of Session ruled that the decision of the sheriff to make the adoption order and dispense with the consent of the mother on the ground that she was “unable to discharge her parental responsibilities or exercise her parental rights”, which was upheld by the sheriff principal, was “plainly wrong”.

Lord Menzies, Lady Clark of Calton and Lord Glennie heard that the appellant LO had parental rights and responsibilities in respect of her child E, now aged 5.

But as a result of behavioural problems, offences, and episodes of alcohol abuse by LO, the child E was placed with N and C, the respondents, who had looked after her for most of her life and were approved as kinship carers of E in August 2013.

In 2015 N and C raised a petition in the Sheriff Court at Tain seeking adoption of E and the petition inter alia set out averments relating to section 14 of the Adoption and Children (Scotland) Act 2007, terms and conditions under section 28(3) of the 2007 Act and the dispensation of consent by LO under section 31 of the legislation.

The petition was opposed by LO on the basis that: “The child is financially and emotionally safe and secure in the current arrangement. It is not better for the child that the order be made. The child’s welfare is safeguarded in terms of the compulsory supervision order. The respondent is able to satisfactorily discharge her parental responsibilities and exercise her parental rights.”

However, after hearing evidence the sheriff issued a judgment on 10 November 2015 in which he made an adoption order under section 29 of the 2007 Act vesting parental rights and responsibilities in respect of E in N and C.

He included in the adoption order conditions of contact in terms of section 28(3) in respect of both LO and E’s natural father DM; dispensed with the consent of LO to making an adoption order on the ground that she was unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and was likely to continue to be unable to do so; and terminated the compulsory supervision order.

LO appealed to the sheriff principal both in relation to the making of the adoption order and contact and the sheriff principal allowed the appeal in part in relation to contact but quoad ultra refused the appeal.

The appeal before the Court of Session related only to whether there was error in law in the making of the adoption order as contact is no longer in dispute.

It was argued that the sheriff and sheriff principal erred in law in the decision to dispense with the consent of LO to adoption under s.31(3)(c) read with s.31(4) of the 2007 Act, in that they erred in the interpretation and application of the relevant test.

The test, it was said, did not involve an assessment of the welfare of the child or what orders should be made in the interests of the child, and the factors relied upon by the sheriff and, in turn, by the sheriff principal in determining that the test was met were not properly concerned with an assessment of parental capacity to satisfactorily discharge parental responsibilities and exercise rights now and in the future.

It was also submitted that the sheriff erred in law in his approach to the structure of the 2007 Act, which resulted in him determining that the order should be granted before he had considered whether the facts of the case, as considered in light of the statutory tests, allowed him to make the order. The sheriff principal erred in finding that this error by the sheriff did not vitiate the sheriff’s decision.

Further, Lo claimed that the sheriff failed to apply the high test required when considering whether adoption, and nothing less, was proportionate and necessary.

The appeal judges ruled that the appeal should be granted.

Delivering the opinion of the court, Lady Clark of Calton said: “We are of the opinion that the decision in relation to adoption by the sheriff principal cannot be allowed to stand as both the decision of the sheriff and sheriff principal were plainly wrong.

“The sheriff principal recognised that the sheriff failed in his role as fact finder, was confused about the application of the law, omitted any reference to section 14 of the 1970 Act and gave inadequate reasons.

“We accept that the sheriff principal was entitled to reach these conclusions. But we consider that the sheriff principal fell into error in concluding that it is ‘tolerably clear’ that the sheriff reached the conclusion that ‘the test had been met’.

“The test referred to by the sheriff principal is a reference back to the test which he considered in paragraph 9, namely section 31(4) of the 2007 Act. In our opinion the sheriff principal has confused the findings in fact which might bear upon section 31(4) of the 2007 Act with findings in fact about general welfare considerations.”

The court observed that it was important to understand and give effect to the structure of the legislation relating to adoption in the 2007 Act, as had been analysed in a number of cases including the 2013 Supreme Court case of S v L, in which Lord Reed set out the relevant legislation, its history, and the interpretation and application of section 31 in the context of other relevant provisions in the 2007 Act.

Lady Clark of Calton added: “Section 31(4) is concerned with an assessment of whether a parent is unable to discharge parental responsibilities or exercise parental rights including whether they will continue to be unable to do so and does not include general welfare considerations. Such welfare considerations will require to be considered if the court concludes that section 31(4) does not apply and, as an alternative, considers whether section 31(3)(d) is established as a ground to dispense with consent of the parent.

“That was not the approach taken by the sheriff in the present case. In the present case where the sheriff concluded that the grounds set out in section 31(4) were made out, he was required to consider section 14(1) and the specific matters listed in section 14(4) so far as reasonably practicable. Further section 28(2) of the 2007 Act restricts the court from making an adoption order unless it considers that it would be better for the child that the order be made than not.

“We are unpersuaded that the sheriff made any reasoned assessment of whether there were any alternatives, short of adoption, which would secure the welfare of E in all the circumstances of this case which include a stable kinship placement which we understand LO does not seek to disturb.”