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Adoption case judge wrong to take supervisory approach, Supreme Court rules

1 March 2017

A judge considering an adoption application has a duty to make findings on matters on which the court requires to be satisfied, rather than consider, adopting a supervisory approach, whether concerns of the local authority regarding a parent were justified, the UK Supreme Court ruled today.

Five judges unanimously allowed an appeal from the Inner House of the Court of Session, which had upheld a Lord Ordinary's decision to grant a permanence order in relation to a child, EV.

Born in December 2013, EV had been in care since her birth. Her parents both had learning difficulties but opposed the application. The main issue concerned s 84(5) of the Adoption and Children (Scotland) Act 2007, para (b) of which requires the court to have regard to certain factors, and para (c)(ii), which requires the court to be satisfied, in relation to each of the parents, that the child’s residence with that person is likely to be seriously detrimental to her welfare.

The local authority’s concerns primarily related to EV's father, and arose out of allegations concerning his behaviour before she was born. The Lord Ordinary, after hearing nine days of evidence, granted the permanence order with authority to adopt. He made few findings of fact in relation to the issues in dispute, and none in relation to the s 84(5)(c)(ii) test: his approach was to consider whether the local authority’s actions had a proper basis. The Inner House reversed the grant of authority to adopt and a related prohibition on contact by the parents, but upheld the permanence order.

Lord Reed, with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed, described the test under s 84(5)(c)(ii) as a factual threshold test which "has to be addressed, and satisfied, before any issue requires to be considered under the other provisions of s 84". The judge was the primary decision maker in determining whether the test had been met, and had to base his or her determination of that issue on findings of fact. "The judge is not exercising a merely supervisory jurisdiction over the approach of the local authority", he ruled.

The legislation was similar to s 31(2) of the Children Act 1989, under which it was established that decisions as to a future likelihood of harm could not be based merely on allegations or suspicions, but on facts established on a balance of probabilities, and the same approach applied. The legislation had to be construed in a way which struck a proper balance between the need to safeguard children and the need to respect
family life. The word “satisfied” in the test indicated that suspicions could not form the basis of the order. The alleged behaviour about which the local authority was concerned could only be relied on if the allegations were relevant to that issue and if they were proved on the balance of probabilities.

The Lord Ordinary's approach was deficient: the correct approach would have been to consider whether the allegations were relevant to the issue arising under s 84(5)(c)(ii), and if so, to make a finding of fact on the balance of probabilities as to whether the allegations were true. If he was unable to make such a finding, he should not then take them into account in his consideration of the threshold test. It was also not clear whether he had in mind the requirement under s 84(4) that the child’s welfare was paramount, but in any event that did not arise until the threshold test was satisfied.

Although the local authority argued for a remit to the Inner House for a hearing on the evidence if the appeal was allowed, this was not appropriate given that the evidence would now be "somewhat stale" and the parents' learning difficulties meant that assessment by a court not of first instance would be difficult. It was open to the local authority to bring fresh proceedings if appropriate. 

Click here to access the judgment.


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