JUDGMENT
ANS (Respondent) and another v ML (AP)
(Appellant) (Scotland)
before
Lord Hope, Deputy President
Lady Hale
Lord Wilson
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
11 July 2012
Heard on 21 and 22 May 2012
Appellant Respondent
Lord Davidson of Glen
Clova QC
Morag B Wise QC
Maria Clarke Catherine Dowdalls
(Instructed by Drummond
Millar LLP)
(Instructed by JK
Cameron)
Respondent
Gerry J B Moynihan QC
Alastair J Duncan
(Instructed by The Scottish
Government Legal
Directorate )
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LORD REED (WITH WHOM LADY HALE AND LORD WILSON AGREE)
1. The issue in this appeal is whether section 31(3)(d) of the Adoption and
Children (Scotland) Act 2007 is within the legislative competence of the Scottish
Parliament. It is contended on behalf of the appellant that the provision is
incompatible with the Convention rights set out in Schedule 1 to the Human Rights
Act 1998, that section 29(2)(d) of the Scotland Act 1998 therefore applies, and that
the provision is accordingly not law.
2. The issue has arisen in the course of adoption proceedings in the Sheriff
Court, in circumstances to which I shall return. The sheriff decided to refer the
issue to the Inner House of the Court of Session, in accordance with paragraph 7 of
Schedule 6 to the Scotland Act. The Inner House held that the provision was not
incompatible with the Convention rights and was within the legislative competence
of the Parliament: ANS and DCS v ML [2012] CSIH 38, 2012 SC 8. The present
appeal is brought against that decision, in accordance with paragraph 12 of
Schedule 6.
3. The appellant is the mother of the child who is the subject of the adoption
proceedings. She is opposed to the proposed adoption and has refused to give her
consent. The first respondents are the prospective adoptive parents. The second
respondent is the Lord Advocate, who has become a party to the proceedings in
order to defend the lawfulness of the provision in issue.
The legislation
4. Section 31 of the 2007 Act is concerned with parental consent to adoption.
Subsection (1) provides that an adoption order may not be made unless one of five
conditions is met. The first condition is set out in subsection (2):
“(2) The first condition is that, in the case of each parent or guardian
of the child, the appropriate court is satisfied—
(a) that the parent or guardian understands what the
effect of making an adoption order would be and
consents to the making of the order (whether or not the
parent or guardian knows the identity of the persons
applying for the order), or
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(b) that the parent’s or guardian’s consent to the making
of the adoption order should be dispensed with on one
of the grounds mentioned in subsection (3).”
Put shortly, the first condition will therefore be met where the court is satisfied that
each parent or guardian of the child consents to the making of an adoption order,
or that the parent’s or guardian’s consent should be dispensed with on one of the
grounds mentioned in subsection (3).
5. It is unnecessary for the purposes of the present appeal to consider the
remaining conditions in detail. It is sufficient to note that they concern situations
where the consent of parents or guardians, or dispensing with such consent, is no
longer a live issue.
6. Returning to the first condition, the grounds on which the parent’s or
guardian’s consent to the making of the adoption order may be dispensed with are
set out in subsection (3):
“(3) Those grounds are—
(a) that the parent or guardian is dead,
(b) that the parent or guardian cannot be found or is
incapable of giving consent,
(c) that subsection (4) or (5) applies,
(d) that, where neither of those subsections applies, the
welfare of the child otherwise requires the consent to
be dispensed with.”
7. Paragraphs (a) and (b) of subsection (3) are self-explanatory. Paragraph (c)
refers to subsections (4) and (5), which are in the following terms:
“(4) This subsection applies if the parent or guardian—
(a) has parental responsibilities or parental rights in
relation to the child other than those mentioned in
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sections 1(1)(c) and 2(1)(c) of the [Children (Scotland)
Act 1995],
(b) is, in the opinion of the court, unable satisfactorily
to—
(i) discharge those responsibilities, or
(ii) exercise those rights, and
(c) is likely to continue to be unable to do so.
(5) This subsection applies if—
(a) the parent or guardian has, by virtue of the making
of a relevant order, no parental responsibilities or
parental rights in relation to the child, and
(b) it is unlikely that such responsibilities will be
imposed on, or such rights given to, the parent or
guardian.”
A “relevant order”, for the purposes of subsection (5), is a permanence order
which does not include provision granting authority for the child to be adopted:
section 31(6).
8. Section 31 has to be read along with other provisions of the 2007 Act. In
particular, it is necessary to have regard to section 14, which is concerned with the
considerations relevant to the exercise of powers under the Act. So far as material,
it provides as follows:
“(1) Subsections (2) to (4) apply where a court or adoption agency is
coming to a decision relating to the adoption of a child.
(2) The court or adoption agency must have regard to all the
circumstances of the case.
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(3) The court or adoption agency is to regard the need to safeguard
and promote the welfare of the child throughout the child’s life as the
paramount consideration.
(4) The court or adoption agency must, so far as is reasonably
practicable, have regard in particular to—
(a) the value of a stable family unit in the child’s
development,
(b) the child’s ascertainable views regarding the
decision (taking account of the child’s age and
maturity),
(c) the child’s religious persuasion, racial origin and
cultural and linguistic background, and
(d) the likely effect on the child, throughout the child’s
life, of the making of an adoption order.”
9. It is also necessary to have regard to section 28, which so far as material
provides:
“(1) An adoption order is an order made by the appropriate court on
an application under section 29 or 30 vesting the parental
responsibilities and parental rights in relation to a child in the
adopters or adopter.
(2) The court must not make an adoption order unless it considers
that it would be better for the child that the order be made than not.
(3) An adoption order may contain such terms and conditions as the
court thinks fit.”
10. Section 31(4) and (5) also has to be read along with the definitions of
parental responsibilities and parental rights in sections 1(1) and 2(1) of the
Children (Scotland) Act 1995, as amended. Section 1(1) provides:
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“(1) … a parent has in relation to his child the responsibility—
(a) to safeguard and promote the child’s health,
development and welfare;
(b) to provide, in a manner appropriate to the stage of
development of the child—
(i) direction;
(ii) guidance,
to the child;
(c) if the child is not living with the parent, to maintain
personal relations and direct contact with the child on a
regular basis; and
(d) to act as the child’s legal representative,
but only in so far as compliance with this Section is practicable and
in the interests of the child.”
Section 2(1) provides:
“(1) … a parent, in order to enable him to fulfil his parental
responsibilities in relation to his child, has the right—
(a) to have the child living with him or otherwise to
regulate the child’s residence;
(b) to control, direct or guide, in a manner appropriate
to the stage of development of the child, the child’s
upbringing;
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(c) if the child is not living with him, to maintain
personal relations and direct contact with the child on a
regular basis; and
(d) to act as the child’s legal representative.”
11. Finally in this context, it is relevant to note the terms of article 8 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms:
“1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
The argument
12. In the printed case, it was argued on behalf of the appellant that section
31(3)(d) was incompatible with the right of a parent to respect for her family life,
as guaranteed by article 8. The provision applied only where neither section 31(4)
nor section 31(5) applied: that is to say, where the court did not consider that the
parent was unable satisfactorily to discharge her parental responsibilities or
exercise her parental rights and was likely to continue to be unable to do so, or
where the parent was not someone who was subject to an order removing parental
responsibilities and rights and was unlikely to have such responsibilities or rights
restored in the future. In other words, section 31(3)(d) was applicable only in
circumstances in which the parent was able to fulfil her parental responsibilities
satisfactorily or, if presently unable to do so, was not likely to continue to be
unable to do so. In that situation, a provision which allowed a court to sever
permanently the bond between parent and child, merely on the basis of an
assessment of the child’s welfare, failed to respect the rights of the parent under
article 8. The dangers of a broad test of welfare had been identified by this court in
In re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17,
[2010] 1 AC 678, para 7.
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13. Section 101(2) of the Scotland Act required a provision of an Act of the
Scottish Parliament to be read as narrowly as was required for it to be within
competence, if such a reading was possible. It was not however possible to read
section 31(3)(d) of the 2007 Act as narrowly as was required in order for it to be
compatible with the relevant case law of the European Court of Human Rights, as
exemplified by Neulinger v Switzerland (2012) 54 EHRR 1087.
14. In the course of the hearing, counsel for the appellant recognized that this
argument faced a number of difficulties, to which I shall return. Ultimately, the
submission was that an order based on section 31(3)(d) would not be made “in
accordance with the law”, within the meaning of article 8(2). That was because the
provision was lacking in precision and failed, in its terms, to reflect the
requirements of article 8 as laid down in the case law of the European court.
The correct approach to interpretation
15. It sometimes seems that, whenever lawyers hear the words “compatibility
with the Convention rights”, they reach for section 3 of the Human Rights Act.
That response is however a mistake: since the object of section 3 is to avoid, where
possible, action by a public authority which would be incompatible with the
Convention rights and therefore unlawful under section 6, it follows that the
special interpretative duty imposed by section 3 arises only where the legislation,
if read and given effect according to ordinary principles, would result in a breach
of the Convention rights (R (Hurst) v London Northern District Coroner [2007]
UKHL 13, [2007] 2 AC 189). That conclusion also follows on constitutional
grounds: the courts endeavour to ascertain and give effect to the intention of
Parliament (or, in this case, the Scottish Parliament) as expressed in legislation. It
is only if that intention cannot be given effect, compatibly with the Convention
rights, that the courts are authorized by Parliament, in terms of section 3, to read
and give effect to legislation in a manner other than the one which Parliament had
intended. Accordingly, as Lord Hope observed in R (Wardle) v Crown Court at
Leeds [2002] 1 AC 754, para 79, before having recourse to section 3 one must first
be satisfied that the ordinary construction of the provision gives rise to an
incompatibility.
16. When an issue arises as to the compatibility of legislation with the
Convention rights, it is therefore necessary to decide in the first place what the
legislation means, applying ordinary principles of statutory interpretation. Those
principles seek to give effect to the legislature’s purpose. If language is used
whose meaning is not immediately plain, the court does not throw up its hands in
bafflement, but looks to the context in order to ascertain the meaning which was
intended. The court will also apply the presumption, which long antedates the
Human Rights Act, that legislation is not intended to place the United Kingdom in
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breach of its international obligations. Those international obligations include
those arising under the Convention.
17. If however the ordinary meaning of the legislation is incompatible with the
Convention rights, it is then necessary to consider whether the incompatibility can
be cured by interpreting the legislation in the manner required by section 3. Even
if the legislation in question is an Act of the Scottish Parliament, it is section 3
which is relevant in the context of the Convention rights, rather than section 101 of
the Scotland Act, for the reasons explained by Lord Hope in DS v HM Advocate
[2007] UKPC 36, 2007 SC (PC) 1, paras 23-24. If the legislation can be construed
in accordance with section 3 in a manner which is compatible with the Convention
rights, then it will be within the competence of the Scottish Parliament so far as the
Convention rights are concerned. If it cannot be so construed, then it will not be
within competence.
The background to the legislation
18. In considering the interpretation of section 31(3)(d) of the 2007 Act, it may
be helpful to begin by setting the provision in the context in which it was enacted.
Under the previous law, set out in section 16 of the Adoption (Scotland) Act 1978
as amended, parental agreement to the making of an adoption order could be
dispensed with on any of four grounds. The first was that the parent could not be
found or was incapable of giving agreement: that ground corresponds to section
31(3)(b) of the 2007 Act. A second, put shortly, was that the parent had
persistently failed, without reasonable cause, to fulfil specified parental
responsibilities in relation to the child. A third ground, again put shortly, was that
the parent had seriously ill-treated the child. The residual ground for dispensing
with parental consent, under section 16(2)(b) of the 1978 Act, was that the parent
was withholding consent unreasonably: a ground whose interpretation and
application had given rise to a considerable amount of litigation.
19. The 2007 Act had its roots in the work of the Adoption Policy Review
Group, carried out between 2001 and 2005 under the chairmanship of Sheriff
Principal Graham Cox QC. In its Phase II Report (Adoption: Better Choices for
our Children), published in 2005, the Group noted that the current Scottish
grounds for dispensing with agreement had been criticized as complicated and
difficult to apply. It noted that, in England and Wales, the grounds for dispensing
with the parents’ agreement had been much the same as in Scotland, but had been
radically changed by the Adoption and Children Act 2002. Section 52(1) of that
Act provided only two grounds for dispensing with consent: that the parent or
guardian could not be found or was incapable of giving consent, or that the child’s
welfare required the consent to be dispensed with. The Group stated (para 3.23):
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“The grounds being introduced in England and Wales under the 2002
Act have the attraction of simplicity. It is also desirable in an issue
such as adoption that the approach taken on both sides of the border
should be broadly similar. There is, however, an issue about whether
the welfare test gives sufficient weight to birth parents’ interests. The
Group believed that the test must be more stringent than whether the
prospective adopters would give the child a better life than the birth
parents (sometimes known as ‘a beauty parade’). The welfare of the
child must require the birth parents’ consent to be dispensed with.
This test should be at least equivalent to that in article 8 of the
European Convention on Human Rights (ECHR) which requires that
any interference in private or family life must be in accordance with
law and necessary to protect health or the rights and freedom of
others. The Group considered that the test in the 2002 Act would be
improved if it reflected article 8 more exactly.”
20. That conclusion was reflected in the Group’s recommendation (para 3.24):
“The Group recommends that the current grounds for dispensing
with the agreement of birth parents should be changed and that those
in the 2002 Act should be adopted, amended to reflect the ‘necessity
test’ in article 8. These grounds are clear and straightforward and
give due consideration and protection to the rights of birth parents.”
21. It is apparent therefore that the Group had article 8 of the Convention firmly
in mind in making its recommendation. Its thinking was that the Scottish provision
enabling the court to dispense with parental consent to the making of an adoption
order should be based upon section 52(1) of the 2002 Act, subject to amendment
designed to reflect more explicitly the requirements of article 8.
22. In its response, also published in 2005, the Scottish Executive stated that it
supported the recommendation and proposed to implement it through legislation
(Secure and safe homes for our most vulnerable children: Scottish Executive
Proposals for Action, page 15). It did so in the Adoption and Children (Scotland)
Bill, subsequently enacted as the 2007 Act. In the Bill as introduced, the relevant
provision (section 33(2)(b)) replicated section 52(1) of the 2002 Act: consent
could be dispensed with only where the parent could not be found or was incapable
of giving consent, or where the welfare of the child required the consent to be
dispensed with. The Policy Memorandum which accompanied the Bill explained
(para 18):
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“The Bill introduces new grounds for dispensing with parental
agreement to the child being placed for adoption. The existing
grounds, set out at section 16(2) of the Adoption (Scotland) Act
1978, are considered to be too complicated and difficult to apply.
The Bill will introduce simpler grounds based on the parent or
guardian not being found or being incapable of giving consent, or the
welfare of the child requiring that parental consent is dispensed with.
This will make it a more straightforward process and will reinforce
the fact that the welfare of the child is the paramount consideration
when considering whether to dispense with the need for parental
consent.”
23. The relevant section was however amended during its passage through the
Scottish Parliament, to an extent which compromised the aim of simplicity. The
amendments made at Stage 2 permitted the court to dispense with parental consent
on the ground that the welfare of the child required it only if, in addition, one of
the conditions set out in what became section 31(4) or (5) was also satisfied. At
Stage 3 the section was further amended so as to take the form in which it was
enacted: that is to say, the power of the court to dispense with consent where the
welfare of the child required it was made applicable only where the power based
upon section 31(4) and (5) could not be exercised, rather than being an additional
condition for the exercise of the latter power. Introducing the Stage 3 amendment,
the Minister stated that it widened the grounds on which consent could be
dispensed with while still applying an appropriate test that respected the rights of
the parents. The amendment, he explained, was designed to reduce the risk that the
making of an adoption order would be delayed or would not take place at all
because neither of the grounds set out in what are now subsections (4) and (5)
quite fitted (Proceedings of the Scottish Parliament, 7 December 2006, col 30248).
The interpretation and application of the legislation
24. Returning to section 31 of the 2007 Act, the first point to note is that it is
premised on the general need for parents to consent to the making of an adoption
order. The default position is that, absent parental consent, an adoption order
cannot be made. Section 31(2)(b) however confers a power, exercisable only by a
court, to dispense with the consent of a parent on the grounds specified in section
31(3).
25. The next point to note is that those grounds are specified in greater detail
than in section 52(1) of the 2002 Act. As I have explained, that section provides
only two grounds on which consent may be dispensed with, and the second of
those grounds is expressed in general terms:
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“(a) the parent or guardian cannot be found or lacks capacity (within
the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed
with.”
Section 52(1)(b) of the 2002 Act applies in any situation where section 52(1)(a)
does not: in other words, in any situation where the parent’s whereabouts are
known and she is of full capacity.
26. Section 31(3)(b) of the 2007 Act replicates section 52(1)(a) of the 2002 Act.
Section 31(3)(c) then identifies two other specific circumstances, described in
detail in subsections (4) and (5), where consent may be dispensed with: namely,
where the parent is unable to discharge her parental responsibilities or to exercise
her parental rights, and is likely to continue to be unable to do so; and where the
parent has, by virtue of a permanence order, no parental rights and responsibilities,
and it is unlikely that such responsibilities or rights will be imposed upon, or given
to, her.
27. Section 31(3)(d) then repeats the language of section 52(1)(b) of the 2002
Act. In its context, however, section 31(3)(d) has a narrower scope than the
similarly worded English provision. It applies only where section 31(4) and (5) do
not. It is therefore not, as in England and Wales, the general ground which the
court has to consider when dealing with any parent whose whereabouts are known
and who is of full capacity. Instead, it is relevant only when the court is dealing
with a parent who, in addition to fulfilling those requirements, also falls within
neither of the categories defined in section 31(4) and (5).
28. In practice, adoption proceedings will usually be brought without the
agreement of a parent in situations where either a permanence order has been
made, in which event section 31(5) or section 31(7) will apply, or where parental
rights and responsibilities have been suspended by a supervision requirement, in
which event a question will arise under section 31(4) as to whether the suspension
is likely to be lifted following a review. This practical context reinforces the
relatively limited scope of section 31(3)(d), when compared with section 52(1)(b)
of the 2002 Act.
29. The provision is nevertheless of practical importance. In particular, it is
possible to conceive of cases where a parent may have limited parental
responsibilities and rights which he or she is capable of discharging and
exercising, and where section 31(4) and (5) will therefore not apply. In Principal
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Reporter v K [2010] UKSC 56, 2011 SC (UKSC) 91, for example, a parent was
granted parental rights and responsibilities only to the extent of becoming a
relevant person in the children’s referral relating to the child. In NJDB v JEG
[2012] UKSC 21 a parent continued to have parental rights and responsibilities,
notwithstanding the withdrawal of contact with the child. A parent in those
situations does not fall within the scope of section 31(4) or (5), but it is nonetheless
possible that his or her consent to the making of an adoption order should be
dispensed with, where the welfare of the child so requires. Equally, there may be
cases where it is difficult for a court to determine whether a parent who is
presently unable to discharge parental responsibilities or exercise parental rights
will continue to be unable to do so, at least within the maximum period of time
during which, in the child’s interests, his or her future can reasonably be left in
limbo: if, for example, the parent is a drug addict or alcoholic who is undergoing
rehabilitation. In such a case, the test imposed by section 31(4) might not be met,
but the welfare of the child could nevertheless require that an adoption order
should be made. In that situation, section 31(3)(d) provides a basis upon which the
court can properly dispense with parental consent.
30. Section 31(3)(d) is a more complex provision than it might appear. In the
first place, the word “welfare” has to be read in the context of section 14(3), which
applies where a court is coming to a decision relating to the adoption of a child:
section 14(1). The decision whether to dispense with parental consent is plainly a
decision relating to the adoption of a child. In reaching its decision under section
31(3)(d), therefore, the court must regard the need to safeguard and promote the
welfare of the child throughout the child’s life as the paramount consideration, as
required by section 14(3).
31. Secondly, since a decision whether to dispense with parental consent falls
within the scope of section 14(1), the court must have regard to the specific
matters listed in section 14(4), so far as is reasonably practicable. As I have
explained, those matters are (a) the value of a stable family unit in the child’s
development, (b) the child’s ascertainable views regarding the decision (taking
account of the child’s age and maturity), (c) the child’s religious persuasion, racial
origin and cultural and linguistic background, and (d) the likely effect on the child,
throughout the child’s life, of the making of an adoption order.
32. Thirdly, section 31(3)(d) empowers the court to dispense with the parent’s
consent only if it is satisfied that the welfare of the child “requires” it. The word
“requires” imposes a high test. That is so as a matter of ordinary English: to say
that something is required means that it is not merely desirable or reasonable, but
that it is necessary. That ordinary meaning is appropriate in the context of section
31(3)(d), for several reasons.
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33. First, the making of an adoption order against the wishes of a parent is a
very serious intervention by the state in family relationships. It follows that the
court will not lightly authorize such intervention. It did not require the Convention
to teach us that. The point was made in Axa General Insurance Ltd, Petitioners
[2011] UKSC 46, 2011 SLT 1061, para 153, that legislation has to be construed
bearing in mind the societal values which Parliament can be taken to have intended
it to embody. As Lord Hoffmann stated in R v Secretary of State for the Home
Department, Ex p Simms [2000] 2 AC 115, 131, the courts presume that even the
most general words were intended to be subject to the basic rights of the
individual. This point is also reflected in the observations made by this court in In
re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010]
1 AC 678, paras 6-7:
“In this country we take the removal of children from their families
extremely seriously … it is not enough that the social workers, the
experts or the court think that a child would be better off living with
another family. That would be social engineering of a kind which is
not permitted in a democratic society.”
34. It follows that legislation authorizing the severing of family ties between
parents and their children will not readily be construed as setting anything less
than a test of necessity. Section 31(3)(d), in stipulating that the welfare of the child
must “require” that parental consent be dispensed with, is consistent with such a
test. There must, in other words, be an overriding requirement that the adoption
proceed for the sake of the child’s welfare, which remains the paramount
consideration. The court must be satisfied that the interference with the rights of
the parents is proportionate: in other words, that nothing less than adoption will
suffice. If the child’s welfare can be equally well secured by a less drastic
intervention, then it cannot be said that the child’s welfare “requires” that consent
to adoption should be dispensed with. That requirement is consistent with section
28(2), which prohibits 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. As the Court
of Appeal observed in relation to section 52(1)(b) of the 2002 Act in In re P
(Children) (Adoption: Parental Consent) [2008] EWCA Civ 535, [2009] PTSR
150 (para 126):
“What is also important to appreciate is the statutory context in
which the word ‘requires’ is here being used, for, like all words, it
will take its colour from the particular context. Section 52(1) is
concerned with adoption … and what therefore has to be shown is
that the child’s welfare ‘requires’ adoption as opposed to something
short of adoption. A child’s circumstances may ‘require’ statutory
intervention, perhaps may even ‘require’ the indefinite or long-term
removal of the child from the family and his or her placement with
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strangers, but that is not to say that the same circumstances will
necessarily ‘require’ that the child be adopted. They may or they
may not. The question, at the end of the day, is whether what is
‘required’ is adoption.”
35. Secondly, the 2007 Act was intended to operate in the context of the
Convention rights established by the Human Rights Act, and the duty of courts and
other public authorities, under section 6 of that Act, not to act in a way which is
incompatible with those rights. It must therefore have been intended that section
31(3)(d) of the 2007 Act would be construed and given effect by the courts in a
manner which complied with the Convention right of parents to respect for their
family life. That intention entails that the word “requires” should be construed in
the manner which I have described, since that construction reflects the
requirements of the Convention as established in the jurisprudence of the European
court. Indeed, the use of the word “requires” in section 52(1)(b) of the 2002 Act,
from which it was borrowed for section 31(3)(d) of the 2007 Act, echoes the
language used by the European court, as the Court of Appeal explained in In re P
(Children) (Adoption: Parental Consent) (paras 124-125):
“In assessing what is proportionate, the court has, of course, always
to bear in mind that adoption without parental consent is an extreme
– indeed the most extreme – interference with family life. Cogent
justification must therefore exist if parental consent is to be
dispensed with in accordance with section 52(1)(b). Hence the
observations of the Strasbourg court in Johansen v Norway (1996)
23 EHRR 33 … That was a case where the court had to consider a
permanent placement with a view to adoption. It said, at para 78:
‘These measures were particularly far-reaching in that
they totally deprived the applicant of her family life
with the child and were inconsistent with the aim of
reuniting them. Such measures should only be applied
in exceptional circumstances and could only be
justified if they were motivated by an overriding
requirement pertaining to the child’s best interests.’
This is the context in which the critical word ‘requires’ is used in
section 52(1)(b). It is a word which was plainly chosen as best
conveying, as in our judgment it does, the essence of the Strasbourg
jurisprudence. And viewed from that perspective ‘requires’ does
indeed have the connotation of the imperative, what is demanded
rather than what is merely optional or reasonable or desirable.”
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36. The formulation used by the European court at para 78 of its Johansen v
Norway judgment (“an overriding requirement pertaining to the child’s best
interests”) is one which it has repeated in identical or similar language in
subsequent judgments. A recent example is R and H v United Kingdom (2011) 54
EHRR 28, concerned with the law of adoption in Northern Ireland.
37. Thirdly, the 2007 Act is also to be construed, as I have explained, in
accordance with the presumption that it is not intended to place the United
Kingdom in breach of its international obligations. The relevant international
obligations include those arising under the Convention. That is therefore a further
reason for interpreting the test imposed by section 31(3)(d) as one which calls for
an overriding requirement: a test, in other words, of necessity and proportionality.
It is also in accordance with international law that the welfare of the child should
be the paramount consideration. That appears, for example, from article 21 of the
United Nations Convention on the Rights of Child: “States Parties that recognize
and/or permit the system of adoption shall ensure that the best interests of the child
shall be the paramount consideration”. It is also reflected in the preamble to the
European Convention on the Adoption of Children (Revised, 2008) (“Recognising
that the best interests of the child shall be of paramount consideration”). The same
principle is also implicit in article 8 of the European Convention on Human Rights,
as the European court has made clear on many occasions. In the recent adoption
case of Pontes v Portugal (Application No 19554/09) (unreported) given 10 April
2012, for example, the court stated (para 94):
“La Cour le répète avec force, dans les affaires de ce type, l’intérêt
de l’enfant doit passer avant toute autre considération.”
Compatibility with the Convention rights
38. It is necessary next to consider whether, so construed on the basis of
ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is
incompatible with the Convention rights. That assessment calls for an examination
of the relevant case law both of domestic courts and of the European court.
39. The requirements of the Convention in relation to dispensing with parental
consent to the making of an adoption order were fully considered by the Court of
Appeal, in relation to section 52(1)(b) of the 2002 Act, in In re P (Children)
(Adoption: Parental Consent). The judgment of the court was extensively cited by
the Lord President when delivering the opinion of the Inner House in the present
case, and I shall follow his example: it is a judgment which merits such citation.
The court stated (paras 119-123):
Page 17
“119 Plainly article 8 is engaged; and it is elementary that, if article
8 is not to be breached, any … adoption order made without parental
consent in accordance with section 52(1)(b) of the 2002 Act, must be
proportionate to the legitimate aim of protecting the welfare and
interests of the child. As Hale LJ said in In re C and B (Care Order:
Future Harm) [2001] 1 FLR 611, para 33:
‘under article 8 of the Convention both the children
and the parents have the right to respect for their
family and private life. If the state is to interfere with
that there are three requirements: first, that it be in
accordance with the law; secondly, that it be for a
legitimate aim (in this case the protection of the
welfare and interests of the children); and thirdly, that
it be “necessary in a democratic society”.’
120 ‘Necessary’ takes its colour from the context but in the
Strasbourg jurisprudence has a meaning lying somewhere between
‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or
‘desirable’ on the other hand. It implies the existence of what the
Strasbourg jurisprudence calls a ‘pressing social need.’ Hale LJ
continued, at para 34:
‘There is a long line of European Court of Human
Rights jurisprudence on that third requirement, which
emphasises that the intervention has to be
proportionate to the legitimate aim. Intervention in the
family may be appropriate, but the aim should be to
reunite the family when the circumstances enable that,
and the effort should be devoted towards that end.
Cutting off all contact and the relationship between the
child or children and their family is only justified by
the overriding necessity of the interests of the child.’
121 She reiterated that in In re O (Supervision Order) [2001] 1
FLR 923 , adding, at para 28, that ‘Proportionality, therefore, is the
key’…
122 To the same effect is the judgment of Thorpe LJ in In re B
(Care: Interference with Family Life) [2003] 2 FLR 813, para 34:
Page 18
‘where the application is for a care order empowering
the local authority to remove a child or children from
the family, the judge in modern times may not make
such an order without considering the European
Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 article 8 rights of the
adult members of the family and of the children of the
family. Accordingly he must not sanction such an
interference with family life unless he is satisfied that
that is both necessary and proportionate and that no
other less radical form of order would achieve the
essential end of promoting the welfare of the children.’
123 That last observation reflects the well established principle …
that, particularly in the context of public law proceedings, the court
should adopt the ‘least interventionist’ approach. As Hale J said in In
re O (Care or Supervision Order) [1996] 2 FLR 755, 760:
‘the court should begin with a preference for the less
interventionist rather than the more interventionist
approach. This should be considered to be in the better
interests of the children … unless there are cogent
reasons to the contrary.’”
40. More recently, the European court has itself considered the compatibility
with article 8 of a decision to dispense with parental consent, taken under section
52(1)(b) of the 2002 Act. In YC v United Kingdom (Application No 4547/10)
(unreported) given 13 March 2012, the court collated at para 134 a number of
different ways in which, in its previous judgments, it had sought to explain the
requirements of necessity and proportionality in relation to adoption orders made
against the wishes of the parents:
“The Court reiterates that in cases concerning the placing of a child
for adoption, which entails the permanent severance of family ties,
the best interests of the child are paramount (see Johansen v. Norway
(1996) 23 EHRR 33, para 78; Kearns v. France (2008) 50 EHRR 33,
para 79; and R and H v United Kingdom (2011) 54 EHRR 28, paras
73 and 81). In identifying the child’s best interests in a particular
case, two considerations must be borne in mind: first, it is in the
child’s best interests that his ties with his family be maintained
except in cases where the family has proved particularly unfit; and
second, it is in the child’s best interests to ensure his development in
a safe and secure environment (see Neulinger v Switzerland (2010)
Page 19
54 EHRR 1087, para 136; and R and H, cited above, paras 73-74). It
is clear from the foregoing that family ties may only be severed in
very exceptional circumstances and that everything must be done to
preserve personal relations and, where appropriate, to ‘rebuild’ the
family (see Neulinger, cited above, para 136; and R and H, cited
above, para 73). It is not enough to show that a child could be placed
in a more beneficial environment for his upbringing (see K and T v
Finland (2001) 36 EHRR 18, para 173; and TS and DS v United
Kingdom (Application No 61540/09) (unreported) given 19 January
2010). However, where the maintenance of family ties would harm
the child’s health and development, a parent is not entitled under
article 8 to insist that such ties be maintained (see Neulinger, cited
above, para 136; and R and H, cited above, para 73).”
41. In its YC judgment, the European court attached particular significance to
the list of factors to which courts and adoption agencies must have regard when
exercising their powers under section 52(1)(b) of the 2002 Act, as set out in
section 1(4) of the Act. In that regard, the court stated (para 135):
“The identification of the child’s best interests and the assessment of
the overall proportionality of any given measure will require courts
to weigh a number of factors in the balance. The court has not
previously set out an exhaustive list of such factors, which may vary
depending on the circumstances of the case in question. However, it
observes that the considerations listed in section 1 of the 2002 Act …
broadly reflect the various elements inherent in assessing the
necessity under article 8 of a measure placing a child for adoption. In
particular, it considers that in seeking to identify the best interests of
a child and in assessing the necessity of any proposed measure in the
context of placement proceedings, the domestic court must
demonstrate that it has had regard to, inter alia, the age, maturity and
ascertained wishes of the child, the likely effect on the child of
ceasing to be a member of his original family and the relationship the
child has with relatives.”
42. The decision with which the case of YC was concerned, taken in accordance
with section 52(1)(b) of the 2002 Act, was held to be compatible with article 8.
43. Decisions taken in accordance with section 31(3)(d) of the 2007 Act,
construed and applied as I have explained, should be no less compatible. Such
decisions have a legitimate aim, namely to protect the welfare of children. If the
provision is interpreted in the manner I have explained, such decisions also meet
the requirements of necessity and proportionality. They will be made only where
Page 20
the court is satisfied that there is an overriding requirement that the adoption
should proceed, for the sake of the child’s welfare, and that nothing less than
adoption will suffice. In considering the child’s welfare, and in assessing the
overall proportionality of an order under section 31(3)(d), the court will apply
section 14(2) and (3), and will have regard in particular to the matters listed in
section 14(4). Two of those matters correspond to factors which are listed in
section 1(4) of the 2002 Act and were mentioned by the European court: the age,
maturity and ascertained wishes of the child are covered by section 14(4)(b), and
the likely effect on the child of ceasing to be a member of his original family is
covered by section 14(4)(d). One would equally expect a court exercising powers
under section 31(3)(d) of the 2007 Act to take into account the remaining matter
mentioned by the European court, namely the relationship the child has with
relatives, since that is one of the circumstances of the case, and it is plainly
relevant to the likely effect on the child of the making of an adoption order. It is
therefore a matter which falls within the ambit of section 14(2) and (4)(d).
44. Emphasis was placed by counsel for the appellant upon the European
court’s statement that family ties may only be severed in very exceptional
circumstances. That is not a legal test, but an observation about the rarity of the
circumstances in which the compulsory severing of family ties will be in
accordance with article 8. The Scottish population statistics for 2010 indicate that
there were then 911,794 children aged under 16 (General Register Office for
Scotland, Mid-2010 Population Estimates Scotland). Information provided to the
court by the Scottish Executive indicates that 406 adoption orders were made that
year. There are no statistics available for the number of cases where a court made
an order dispensing with parental consent. Such cases might include a number
where the parent in question had died or was incapable of giving consent. They
would also include an appreciable number where the parent could not be found:
where, for example, a child who had lost all contact with one biological parent was
adopted by a step-parent. Most of the cases where parental consent was dispensed
with under section 31(3)(c) or (d) are likely to have been amongst the cases where
children were adopted from care, which totalled 218 in 2009/10. Even if parental
consent had been dispensed with in all 218 cases, the number would amount to
0.02% of children: in other words, one child in 5000. In reality, the number can be
expected to have been lower than that. It appears therefore that orders dispensing
with consent to the making of an adoption order, against the wishes of a parent, are
indeed made only in exceptional circumstances.
45. It remains to consider the contention that an order made under section
31(3)(d) is not “in accordance with the law”, within the meaning of article 8(2),
because the provision is so imprecisely expressed that it lacks legal certainty.
46. This contention must be rejected. It is important to recognize at the outset
that the meaning of statutory language involves more than simply the bare words
Page 21
of the provision in question. In the first place, the language used in section
31(3)(d) has to be interpreted in the light of its statutory context. Section 14, in
particular, clarifies the meaning of the word “welfare” as used in section 31(3)(d).
It indicates the matters to which the court must in particular have regard when
applying section 31(3)(d), and the consideration which the court must treat as
paramount. Section 28(2) further clarifies the circumstances in which an adoption
order may be made. The wider context of the legislation, including the duty of
courts and other public authorities to act compatibly with Convention rights under
the Human Rights Act, is a further aid to its interpretation, as I have explained.
Furthermore, section 31(3)(d) must be construed, like all other legislation in this
country, in accordance with well-established principles of statutory interpretation.
I have discussed the relevant principles, including the presumption that legislation
is not intended to conflict with the values of our society, including respect for
basic individual rights, or with the United Kingdom’s international obligations.
The application of those principles makes it plain, if there were otherwise any
doubt about the matter, that the word “requires” in section 31(3)(d) is to be
understood as meaning that there must be an overriding requirement, for the sake
of the child’s welfare over his or her lifetime, that the consent of the parent be
dispensed with, and that the child’s welfare requires nothing less than the making
of an adoption order: a test, in other words, of necessity.
47. All that said, section 31(3)(d) leaves much to the judgment of the sheriff
hearing the individual case. He is not as tightly constrained, in his appreciation of
the circumstances of the case, as a court may be in some other contexts where
legislation has been drafted with greater specificity. That however reflects the
nature of the subject-matter of the provision. It is impossible to spell out
exhaustively the particular circumstances in which an order dispensing with
parental consent may be necessary. A number of specific circumstances are
described in section 31(3)(a) and (b), and in subsections (4) and (5). Section
31(3)(d) is intended to confer a residual power which can be used in such other
circumstances as may arise: it is, in effect, a safety net. It is unrealistic to expect
that a provision of that nature will spell out the precise circumstances in which it
may appropriately be employed.
48. The use of general language in such a context is not inconsistent with the
Convention rights. The approach adopted by the European court is illustrated by
the case of Kuijper v Netherlands (2005) 41 EHRR SE 266, which concerned the
adoption of a child against the wishes of one of her parents. One of the complaints
made was that the adoption was not in accordance with the law, as the relevant
legislation was lacking in legal certainty. In rejecting the complaint, the court
stated at page 277:
“As regards the applicant’s argument that the Arts 1:228 and 3.13 of
the Civil Code and their application in practice fell short of the
Page 22
requirement of foreseeability, the Court considers that it is a logical
consequence of the principle that laws must be of general application
that the wording of statutory provisions is not always precise. The
need to avoid excessive rigidity and to keep pace with changing
circumstances means that many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague. However clearly
drafted a legal provision may be, its application in practice involves
an inevitable element of judicial interpretation and assessment of
facts, which do not by itself make a legal provision unforeseeable in
its application. On many occasions and in very different spheres the
Court has held that it is in the first place for the national authorities,
and in particular the courts, to construe and apply the domestic law
(see, for example, Winterwerp v Netherlands (1979) 2 EHRR 387 at
[46]; Iglesias Gil v Spain (2003) 40 EHRR 3 at [61]; and Slivenko v
Latvia: (2003) 39 EHRR 24 at [105]).
Accordingly, an issue of foreseeability could only arise under the
Convention if the national courts’ assessment of the facts or domestic
law was manifestly unreasonable or arbitrary.”
49. Applying that approach in the context of section 31(3)(d) of the 2007 Act, I
have explained why that provision is inevitably couched in terms which are to
some extent imprecise. Interpreted and applied in the manner which I have
explained, however, it is not unforeseeable in its application. An issue of
foreseeability should not therefore arise, provided the court interprets the provision
correctly and bases its decision upon a reasonable assessment of the facts.
The procedure in the present case
50. I have not yet said anything about the circumstances of the present case, as
they have no bearing on the issue of law which the court has to decide. It would
not however be appropriate to part with this case without making some
observations about the procedure followed. I should emphasise at the outset that
my observations are not intended to be critical of the sheriff who heard the case. It
is clear that in making the reference he acted in the manner which he thought was
likely to minimize delay. It also appears from the reference that he received no
encouragement from the parties, other than the Lord Advocate, to adopt a different
course. With the benefit of hindsight, however, it is apparent that there are lessons
to be learned from this case about how devolution issues should be handled when
they arise in the course of proceedings of this kind. More generally, considering
this appeal soon after the case of NJDB v JEG [2012] UKSC 21, where this court
was critical of the procedure followed in a dispute over contact, it is difficult to
Page 23
avoid the impression that further efforts require to be made to encourage active
and firm judicial case management of family proceedings in the Sheriff Court.
51. These adoption proceedings began in November 2009, when the child was 2
years old. He is now 5 years old, and the proceedings have not yet reached their
conclusion. That is a very unfortunate state of affairs. He has been living with the
respondents throughout that period. His mother, the appellant, has had no contact
with him, and has been unable to fulfil the role of his mother. Equally, unless and
until the proceedings are concluded in their favour, the respondents have to hold
back from treating him fully as their son: he is not their child, and they do not
know whether he ever will be. He has only one childhood, and it is rapidly passing.
The appellant and the respondents have only one opportunity to fulfil the role of
parents towards this child during his childhood. The delay can only be causing
anguish to all the individuals involved.
52. The damaging consequences of delay in the determination of adoption
proceedings have long been well-known. The longer the proceedings unfold, the
stronger the attachments which the child is likely to form with the prospective
adopters, and they with the child. The child may identify wholly with the new
family. It may be profoundly damaging to the child if the court does not endorse
that new identity. The protracted uncertainty may itself be damaging and
distressing. In the interests of the welfare of the child, and out of common
humanity towards all the individuals involved, it is imperative that unnecessary
delay should be avoided. The duty to avoid undue delay in the determination of
disputes of this nature, in order to comply with the obligations imposed by article
8, has also been made clear many times by the European court. As is obvious,
undue delay in the determination of adoption proceedings may have irreversible
effects upon the child, and may in any event bring about the de facto determination
of the issue. Parliament recognized, in section 25A of the 1978 Act, the need to
avoid delay in particular when it is sought to dispense with parental consent to the
making of an adoption order: the court was required under that provision, “with a
view to determining the question without delay”, to draw up a timetable for the
proceedings and to give directions designed to ensure that the timetable was
adhered to. There is no equivalent provision in the 2007 Act, but the importance
of avoiding delay is instead reflected, as I shall explain, in Practice Notes and rules
of court.
53. The importance of avoiding delay was one of the points emphasised by the
Adoption Policy Review Group in their Phase II Report. They stated in particular
that it was essential that as little time as possible should elapse between a formal
decision by an adoption agency that a child should be adopted, and the decision of
the court to grant or refuse the application for an adoption order (para 7.4). One of
their consequent recommendations was that all sheriffdoms should have a Practice
Note with guidance for sheriffs and practitioners (para 7.2). That recommendation
Page 24
resulted in the promulgation of Practice Notes on the application of the 2007 Act,
designed to ensure that proceedings under the Act were conducted expeditiously.
In relation to proceedings in the Court of Session, the provisions of chapter 67 of
the Rules of Court have a similar objective.
54. Since the present case has been dealt with at Dumbarton Sheriff Court, the
applicable Practice Note is that issued by the Sheriff Principal of North Strathclyde
(Practice Note No 1, 2009: Adoption and Children (Scotland)Act 2007: Guidance
for Sheriffs and Practitioners). It states at para 3:
“Minimum of delay
3. It shall be the duty of the court to secure that all applications
and other proceedings under the Act are dealt with as expeditiously
as possible and with the minimum of delay. Such applications and
proceedings require the co-operation of all concerned and active and
firm case management by the sheriff throughout their course.”
55. In the present case, as I have said, the adoption petition was lodged in
November 2009. A proof was held during September and October 2010. Fourteen
days of evidence were led. I would observe in passing that it is difficult to
understand why fourteen days of evidence should have been necessary, if the
guidance given in the Practice Note was followed. That guidance includes, for
example, the following:
“20. … The parties should therefore apply their minds to the
question whether any evidence might be appropriately presented in
the form of an affidavit or other document and the sheriff should
encourage them to decide that question at the pre-proof hearing. The
sheriff should also encourage the use of affidavits to cover noncontentious (or indeed contentious) issues where that would save the
time of witnesses and the court. …
21. Where the author of a report or the maker of a statement
which has been or is to be lodged is to be called as a witness, the
sheriff may order that the report or statement is to be held to be
equivalent to the witness’s examination-in-chief, unless for special
reasons he or she otherwise directs.
Page 25
22. The sheriff should discourage the unnecessary use of expert
witnesses. If expert evidence is essential, the sheriff should
encourage the joint instruction of a single expert by all parties. …
…
24. At a proof it should be borne in mind that ‘there is a heavy
responsibility on the parties’ representatives to exercise all
reasonable economy and restraint in the presentation of the evidence
and in their submissions to the court’ (Lothian Regional Council v A
1992 SLT 858 at 862B). The sheriff may therefore exercise his or
her existing common law power to intervene to discourage prolixity,
repetition, the leading of evidence of unnecessary witnesses and the
leading of evidence on matters which are unlikely to assist the court
to reach a decision.”
56. That guidance is particularly important in cases where it is sought to
dispense with parental consent under section 31(3)(c) or (d). In such cases, courts
may be presented with voluminous social work notes, with allegations of alleged
failures by the birth parents going back over several years, and with competing
assessments of their future prospects. There may also be expert evidence. In the
absence of firm judicial control, following the guidance in the Practice Note, there
may be very extensive examination and cross-examination. The consequence is
likely to be protracted proceedings focused primarily upon the past history of the
parents rather than the future of the child.
57. Following the fourteen days of evidence, in November 2010 the sheriff
began to hear the submissions of the parties’ representatives. According to the
agreed chronology, counsel for the appellant intimated her intention to raise a
devolution issue on the third day of submissions (a period of time which again
seems surprisingly long, particularly bearing in mind the encouragement given in
the Practice Note, at para 25, to the advance submission of draft findings in fact
and skeleton arguments). A minute setting out the devolution issue was lodged
three days later. The sheriff allowed it to be received, and referred the issue to the
Inner House. We are informed that he did so without having completed the hearing
of parties’ submissions on the evidence led at the proof, and without making any
findings on the evidence or reaching any decision. It is common ground that, once
the reference has been determined, the case will have to return to the sheriff. He
will then have to receive further evidence – albeit perhaps very limited – on
developments since 2010, hear the parties’ submissions, and issue his judgment. It
is impossible to predict when the question of the child’s possible adoption will be
finally determined.
Page 26
58. If a devolution issue was to be raised as to the compatibility of section
31(3)(d) of the 2007 Act with the Convention rights, that should have been done
far earlier than it was. The relevant procedure is governed by the Act of Sederunt
(Proceedings for Determination of Devolution Issues Rules) 1999 (SI 1999/1347).
Article 4 provides:
“It shall not be competent for a party to any proceedings to raise a
devolution issue after proof is commenced, unless the sheriff, on
cause shown, otherwise determines.”
59. It is also relevant to note what is stated in the Practice Note at para 19:
“Legal issues
At a pre-proof hearing the sheriff should ask the parties if there are
any questions of admissibility of evidence or any other legal issues,
including any questions under the European Convention on Human
Rights, that are likely to arise at the proof. If so, the sheriff should
consider whether they could with advantage be determined at this
hearing rather than at the proof. Alternatively, the sheriff may
adjourn the pre-proof hearing to another date in order to enable any
such issue to be argued and determined. If a legal issue is not raised
at the pre-proof hearing, the sheriff may refuse to allow it to be
raised at the proof except on cause shown.”
60. The issue not having been raised at the proper time, the sheriff was under
no obligation to allow it to be raised on the seventeenth day of the proof. It is not
apparent from the terms of his reference whether he understood that cause had to
be shown for permitting the issue to be raised late, or gave any consideration to the
question whether such cause had in fact been shown. The reference appears to
proceed on the basis that the devolution issue having been raised, it had to be
determined, and that the only procedural question which the sheriff had to decide
was whether he should refer the issue to the Inner House or determine it himself.
61. Given the stage at which the issue was raised, and having regard to the Act
of Sederunt and to the guidance given in the Practice Note, notably in paragraphs 3
and 19, the sheriff could appropriately have refused to allow the issue to be raised:
indeed, it is difficult to see how he could appropriately have done otherwise, given
the nature of the proceedings and the stage which they had reached. He would then
have allowed parties to complete their submissions, and would have issued his
determination. He might then have refused the application, or granted it on the
Page 27
basis that parental consent could be dispensed with under section 31(3)(c) of the
2007 Act. In either event the issue sought to be raised would have become
academic. If alternatively he had granted the application on the basis that consent
could be dispensed with under section 31(3)(d), the appellant might then have
sought to raise the devolution issue on appeal. She might not have been permitted
to do so. If however she had been, and if (contrary to what in fact occurred) she
had succeeded in persuading the appellate court that section 31(3)(d) was not law,
then the sheriff’s decision would have been quashed. One way or another, the
application would in all likelihood have been determined by now.
62. Having however allowed the devolution issue to be raised, the sheriff could
then have determined it himself. If he was minded to refer it to the Inner House, he
could have asked to be addressed on it before deciding whether it raised a point of
real substance which merited a reference. If he had done so, I find it difficult to
imagine that a reference would have been made. The minute raising the devolution
issue was based on the proposition that welfare was not a Convention-compliant
ground for dispensing with parental consent to adoption, since it was vague and
did not call for exceptional circumstances. No significance was attached to the
word “requires”, in section 31(3)(d), or to the provisions of sections 14 and 28. No
mention was made in the minute of the duty of courts to act compatibly with
Convention rights under section 6 of the Human Rights Act, or of the interpretative
duty arising (if need be) under section 3 of that Act. The submissions lodged by
the Lord Advocate in response to the minute referred (among other authorities) to
the judgment of the Court of Appeal in In re P (Children) (Adoption: Parental
Consent) [2008] EWCA Civ 535, [2009] PTSR 150, in which the relevant issues
were fully addressed. It is difficult to believe that, if the contentions advanced in
the minute had been tested, they could have survived scrutiny.
LORD HOPE
63. I agree, for all the reasons that Lord Reed gives, that the appeal should be
dismissed. I am grateful too to Lord Carnwath for his helpful comments on the use
of judgments of the Strasbourg court.
64. It is disappointing to find, despite repeated directions in rules of court and
practice notes that adoption proceedings are to be conducted as expeditiously as
possible, there are still cases in which this fundamental principle is not being
applied in practice. It needs to be stressed that the responsibility for conducting the
proceedings as expeditiously as possible rests on the parties’ representatives as
well as on the sheriff or the presiding judge. Effective case management is not a
process that can be conducted in a vacuum. It is the duty of the court to manage
cases of this kind actively from the outset, by encouraging the taking of steps that
Page 28
will minimise delay and by giving directions as to how the proceedings are to be
conducted. But it is the duty of the parties too, and their legal advisers, to do
everything they can to help the court to secure its objective. Not sitting back and
waiting for the other party to act, co-operating with each other where possible,
giving positive assistance in the setting of timetables and limiting the opportunity
for delay both between each stage in the process and during the hearings
themselves are just some examples of steps that they may take to assist the court.
65. I would like therefore to add my own strong endorsement of the point that
Lord Reed makes in para 50 of his judgment that this case indicates that further
efforts require to be made to strengthen the practice of case management of family
proceedings in the Sheriff Court. While the primary responsibility rests, of course,
on the judiciary, practitioners too at all levels should be brought into this process.
Experience has shown that it is not enough to make rules and to give directions.
Advice and training as to how they should be implemented may be just as
important if they are to be applied effectively.
LORD CARNWATH (WITH WHOM LORD WILSON AGREES)
66. I agree that the appeal should be dismissed for the reasons given by Lord
Reed. I only wish to add a short comment on the use made in argument of
authorities from the European Court of Human Rights.
67. We were referred to numerous cases dating back over more than twenty
years, dealing with the rights of children and parents in similar contexts. They
offer slightly different formulations and different shades of emphasis. Many of the
cases contain summaries of the previous case-law, but again there are differences
in the way they are presented. In general little help is likely to be gained by
detailed comparative or historical analysis. In the present case, as Lord Reed has
shown, the relevant Strasbourg principles are readily apparent from the most recent
cases, and the leading UK authorities, as cited in his judgment.
68. The risks are well illustrated by reference to the judgment on which Lord
Davidson principally relied, Neulinger and Shuruk v Switzerland (2011) 54 EHRR
1087. The critical passage reads as follows:
“134. In this area the decisive issue is whether a fair balance between
the competing interests at stake – those of the child, of the two
parents, and of public order – has been struck, within the margin of
appreciation afforded to States in such matters (see Maumousseau
and Washington, cited above, § 62), bearing in mind, however, that
Page 29
the child’s best interests must be the primary consideration (see, to
that effect, Gnahoré v. France, Application No. 40031/98, § 59,
ECHR 2000 IX), as is indeed apparent from the Preamble to the
Hague Convention, which provides that ‘the interests of children are
of paramount importance in matters relating to their custody’. The
child’s best interests may, depending on their nature and seriousness,
override those of the parents (see Sahin v Germany [GC],
Application No. 30943/96, § 66, ECHR 2003 VIII). The parents’
interests, especially in having regular contact with their child,
nevertheless remain a factor when balancing the various interests at
stake (ibid, and see also Haase v. Germany, Application No.
11057/02, § 89, ECHR 2004 III (extracts), or Kutzner v. Germany,
Application No. 46544/99, § 58, ECHR 2002 I, with the numerous
authorities cited).
135. The court notes that there is currently a broad consensus –
including in international law – in support of the idea that in all
decisions concerning children, their best interests must be paramount
(see the numerous references in paragraphs 49-56 above, and in
particular Article 24 § (2) of the European Union’s Charter of
Fundamental Rights). As indicated, for example, in the Charter,
“[e]very child shall have the right to maintain on a regular basis a
personal relationship and direct contact with both his or her parents,
unless that is contrary to his or her interests”.
136. The child’s interest comprises two limbs. On the one hand, it
dictates that the child’s ties with its family must be maintained,
except in cases where the family has proved particularly unfit. It
follows that family ties may only be severed in very exceptional
circumstances and that everything must be done to preserve personal
relations and, if and when appropriate, to ‘rebuild’ the family (see
Gnahoré, cited above, § 59). On the other hand, it is clearly also in
the child’s interest to ensure its development in a sound
environment, and a parent cannot be entitled under Article 8 to have
such measures taken as would harm the child’s health and
development (see, among many other authorities, Elsholz v Germany
[GC], Application No. 25735/94, § 50, ECHR 2000 VIII, and
Maršálek v the Czech Republic, Application No. 8153/04, § 71, 4
April 2006).” (emphasis added)
69. The essence of Lord Davidson’s argument was that the Scottish statute did
not properly incorporate the tests laid down in that judgment, particularly the “two
limbs” described in the two italicised passages in paragraph 136. With the
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assistance of his Junior, Miss Maria Clarke, he proposed two alternative versions
of sub-section (3)(d) of section 31 designed to remedy that deficiency.
70. The statutory version (see Lord Reed para 6) reads:
“(d) that, where neither of those subsections applies, the welfare of
the child otherwise requires the consent to be dispensed with.”
The proposed alternatives were:
“(d) that… neither of those subsections applies and…,
notwithstanding the non application of (4) and (5), the parent is
particularly unfit or harm will result to the child’s health and
development by the exercise of parental responsibilities or parental
rights in relation to the child.
or
(d) that… neither (4) nor (5) applies but the parent is particularly
unfit or would cause harm to the child in the event of residence or
contact. ”
The only significant difference appears to be in the relative of simplicity of the
latter. As I understand it, both suggested drafts are designed to bring the
“precision” said to be lacking in the statute (see Lord Reed para 45ff). The
wording reflects the apparently mandatory and exclusive character implied by the
word “dictates”.
71. I cannot accept this approach. For the reasons given by Lord Reed the
search for undue precision in this area of the law is inappropriate, as indeed
recognised by the European court (Lord Reed para 48). In this case, it also gives
unjustified weight to the detailed drafting of the passage in question.
72. This can be illustrated by reference to the preceding paragraphs, dealing
with the primacy of the interests of the child. Thus, paragraph 134 begins by
asserting that “the child’s best interests must be the primary consideration”, which
proposition is equated with the words of the Hague Convention (“the interests of
the children are of paramount importance in matters relating to their custody”).
However, this is followed by a statement that “the child’s best interests may,
Page 31
depending on their nature and seriousness, override those of the parents…” There
is an apparent difference of emphasis between saying that the child’s interests are
of “paramount importance”, and saying that they merely “may, depending on their
nature and seriousness” override those of the parents.
73. The authority referred to for the latter proposition is Sahin v Germany
(2003) 36 EHRR 43, a case decided in October 2001. The particular paragraph
(42) is in the following terms:
“The Court further recalls that a fair balance must be struck between
the interests of the child and those of the parent and that in doing so
particular importance must be attached to the best interests of the
child which, depending on their nature and seriousness, may override
those of the parent. In particular the parent cannot be entitled under
article 8 of the Convention to have such measures taken as would
harm the child’s health and development.”
The context was that the finding of a violation of the father’s rights when he was
refused contact, principally because of the profound dislike of him developed by
the mother, and without anyone seeking the views of the child. In that context one
can understand why the legal test was put as it was, but it may not fit readily into
the analysis in Neulinger.
74. For the purposes of the present case it is unnecessary to go further into that
debate. As Lord Reed has shown (para 37), the most recent Strasbourg cases leave
no material room for ambiguity. Thus, R (H) v UK (2011) 54 EHRR 2 (a decision
given in May 2011) confirms that “in all decisions concerning children their best
interests must be paramount”; or in Pontes v Portugal (10th April 2012, cited by
Lord Reed) the interest of the child “doit passer avant tout autre consideration”.
75. Similarly, the apparently mandatory nature of the paragraph 136 tests is not
supported by comparison with more recent authority. In YC v UK, (13 March 2012,
cited by Lord Reed at para 40), the same two factors are referred to citing
Neulinger, but they are described no longer as “tests dictated” but as
“considerations to be borne in mind”. Yet again, in Uyanik v Turquie (Application
No. 60328/09, decision 3 May 2012 para 52) the various aspects (“les intérêts
concurrent en jeu”) are brought together, again citing Neulinger, but leaving no
doubt as to their relative weight:
“l’intérêt supérieur de l’enfant devant toutefois constituer la
consideration déterminante… Cela étant, l’intérêt des parents,
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notamment à bénéficier d’un contact régulier avec l’enfant, reste un
facteur dans la balance des différents intérêts en jeu.”
76. I cite these various examples not by way of criticism of the Strasbourg
Court. Such variations are unsurprising bearing in mind that the judgments may be
given by different chambers of the Strasbourg Court. Their primary task is to
outline the main principles and apply them to the facts of the case before them, not
to establish any new proposition of law, or even to offer authoritative restatement
of existing law. There are many decisions of the Court of Appeal in England or the
Court of Sessions in Scotland, of which the same could be said. Neulinger, unlike
the others, was a Grand Chamber decision and to that extent would normally be
treated as having greater authority. However, the passages relied on were largely
designed to summarise earlier authority, and on examination, and in the light of
their treatment in later cases, cannot bear the formulaic significance attributed to
them by the appellant’s submissions.
