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Timing the test for detriment

15 October 18

Our contributor considers a key point of law established in the recent decision on a permanence order, City of Edinburgh Council v GD [2018] CSIH 52

by Alan W Robertson

In summary, this case was an appeal against an interlocutor of the Sheriff Appeal Court which made a permanence order (“PO”) under s 80 of the Adoption and Children (Scotland) Act 2007 in relation to SD, a young child. The PO gave City of Edinburgh Council authority to adopt and the compulsory supervision order was revoked.

Amongst at least one other appeal point, the appeal itself raised an interesting point about the proper interpretation and application of s 84(5)(c)(ii) of the 2007 Act, which states that the court must be satisfied that, prior to making a PO, “the child’s residence [with a parent] is, or is likely to be, seriously detrimental to the welfare of the child”. It raised the question about the time at which that test is to be applied.

The petitioners submitted that the word “is” in terms of s 84(5)(c)(ii) could have referred to the time when “protective arrangements were initiated”, when permanence proceedings were commenced, the date of the court’s determination or none of these. In reality, it did not matter which time was adopted. The Sheriff Appeal Court had previously opined that the model favoured was that encountered in s 31(2)(a) of the Children Act 1989. In the English decision of Re M (A minor) (Care Orders: Threshold Conditions) [1994] 2 AC 424, it had been taken to mean the time when protective arrangements had been initiated.

Time of the decision

Lord Carloway (at para 30) acknowledged and stated that the phraseology “is, or is likely to be, seriously detrimental to” the child's welfare has created significant debate over the date and timing of the application of the test. His Lordship opined that although the test was said to be one “in limine”, it was perfectly possible to apply it at a different point to that of the general welfare tests in s 84(3) or 83(1)(d) of the Act. Crucially however, his Lordship stated: “The obvious time for doing so is at the point at which the sheriff makes a final decision on the permanence order and the authority to adopt.” He stated that Re M (A Minor) was not of material assistance, since it was dealing with a different type of order under different legislation. He further stated that the Sheriff Appeal Court erred in holding that the sheriff had applied the threshold test at the wrong time. The sheriff was correct to apply it at the time of his decision and not at any earlier point, notably either when the child was removed from his parents' care or the date of the application for a PO.

In broad terms, therefore, this decision brings much clarity for practitioners engaged in this often complex and demanding area of work. In hindsight, it is admittedly unfortunate that the 2007 Act did not provide any indication or guidance as to the point in time at which s 84(5)(c)(ii) was to apply. That undoubtedly has resulted in much litigation and, in fairness, much confusion about when the test is to apply exactly.

Common sense outcome

I do think that common sense has prevailed here. For example, if the social work recommendation was that it would indeed be seriously detrimental for the child or children to be rehabilitated to their natural parents, then clearly the passage of time may somewhat alter that recommendation. It is perhaps fair comment to say that often a significant period of time can elapse between such reports being made (including the advice one from the panel) and the point when the petition is even raised and served.

Consider this scenario: in October 2018 a local authority raises a petition for permanence with authority to adopt. The action is raised in the appropriate sheriff court. The petition is defended by both parents. It is perfectly credible in such circumstances that one may not expect a final decision from the sheriff for a considerable period of time. It would make no sense therefore to apply the criterion based on a set of circumstances that applied a long time ago. As always, clarity in the law is critical. The clarity here is welcome and should hopefully avoid any issues in this regard for future cases.

Alan W Robertson, senior associate, MBS Solicitors, Edinburgh

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