Adopting new solutions

Author welcomes the new Adoption and Children (Scotland) Act but doubts whether, as intended, it has made the law any clearer in two key respects

The Journal, January 2007, page 16

The Adoption and Children (Scotland) Bill successfully completed its parliamentary progress on 7 December 2006. Press coverage was, disappointingly, limited to the single issue of “gay adoption” but, pleasingly, was on the whole supportive of the parliament’s overwhelming endorsement of couple-adoption beyond marriage partners. Joint adoption will now be open to civil partners, as well as cohabiting couples (whatever the gender mix) in enduring family relationships. The Act, of course, does much more. I want to draw readers’ attention to only two different issues, both of which underwent substantial amendment as the Act worked its way through the Scottish Parliament.

Grounds for dispensing with parental consent

The rule is not changed that an adoption order needs either the consent of the parents and guardians or, if that consent is not forthcoming, the dispensing by the court of consent. The grounds for dispensation under the existing law are set out in s 16 of the 1978 Act, and the process by which the court decides whether to dispense has been laid down in a series of Court of Session cases. The original intention of the Executive, expressed in para 18 of the policy memorandum which accompanied the bill as introduced, was to simplify the complexities of the existing grounds. I am not sure that any simplification has been achieved.

Section 31 of the Act sets out five grounds, the existence of one of which will allow the court to consider whether to dispense with parental consent to adoption. The grounds are (a) that the parent or guardian is dead (s 31(3)(a)); (b) that the parent or guardian cannot be found or is incapable of giving consent (s 31(3)(b)); (c) that the parent or guardian has parental responsibilities or parental rights but is unable to discharge them and is likely to continue to be unable to do so (s 31(3)(c) and (4)); (d) that the parent or guardian does not have parental responsibilities or parental rights and is unlikely to obtain them (s 31(3)(c) and (5)); (e) that where neither (c) nor (d) applies the welfare of the child otherwise requires the consent to be dispensed with (s 31(3)(d)).

Grounds (a) and (b) do not really change the law and are uncontentious. Grounds (c) and (d) are the successors to the old grounds of “persistent failure” and “serious ill-treatment”, but they are deliberately non-judgmental in the way the old grounds were not and are to be welcomed for that reason. (Though since “parent” is defined in s 31(15) as a parent with parental responsibilities and rights, it is difficult to see when ground (d) can ever apply.)

Two questions in one

Ground (e) is even more problematical, because if an applicant can establish this ground he will always also have satisfied s 14(3), whereby welfare is the court’s paramount consideration in determining whether to dispense with parental consent. There were two flaws with this. First, the Court of Session has insisted that the decision of whether to dispense with consent is different from and subsequent to the decision of whether a ground for dispensation exists – and, crucially, that the questions must be tackled in the correct order. The new formulation conflates these two logically separate questions into one. Secondly, the European Court of Human Rights has told us time and again that child protection mechanisms cannot be activated just because a child would be better off with one set of carers than another. Otherwise a child could be removed from satisfactory parents and given to highly satisfactory parents.

An adoption system must be able to accommodate a proposed adoption being frustrated by a parental refusal of consent, even when it is in the welfare of the child to be adopted. Welfare is the paramount consideration but it cannot on its own be the justification for state interference in family life. Courts are going to have to be imaginative in giving “welfare” in s 31(3)(d) more limited scope than it has in s 14(3).

Permanence orders and supervision requirements

Though the new Act is in large part a re-enactment of the 1978 Act, there is one part that is totally new: a new order, the permanence order (PO), is created. This will replace both freeing orders and parental responsibilities orders and is designed to be more flexible than either, giving the court the power to make an order that is tailored to the particular circumstances and the needs of each individual child who requires to be removed from their birth family on a permanent basis. Adoption might or might not be appropriate for such a child and “the permanency planning” for different children can take that fact and all other relevant matters into account.

The single most important issue, discussed at all three stages of the parliamentary process, was the inter-relationship between the new permanence order and other lawful orders, in particular supervision requirements. This is a matter of great practical importance because children who will be made subject to permanence orders will nearly always be in the children’s hearing system already. There were two major fears: (i) that a child might be subject to two separate legal processes at much the same time and in relation to identical problems; and (ii) that it was unclear which order took precedence if the two processes resulted in two, inconsistent, orders.

Suspending the supervision process

The first fear is addressed in s 96. This provides that when an application for a PO is made, a supervision requirement may not be made or varied until the PO application has been dealt with. It is important to note that this does not remove the jurisdiction of the children’s hearing either during the process for obtaining a PO or during the subsistence of the order once made. A children’s hearing may still be arranged even when a PO application has been made and, in the absence of any rule to the contrary, the hearing may issue warrants to detain the child until a decision can be made by them. The hearing may also continue an existing supervision requirement without variation, perhaps requiring a review under s 70(7) of the 1995 Act once the PO is made (if the supervision requirement survives). And the hearing may make a new supervision requirement after a PO has come into force.

Permanence orders and other orders

The second fear, relating to precedence of orders, is dealt with by a number of provisions, not all of which are contained in the new Act. There can be no clash with s 11 orders made under the 1995 Act because s 88 of the new Act provides that the making of a PO has the effect of revoking any existing s 11 order; and s 103 provides that the court cannot make a new s 11 order (except for an interdict or the appointment of a judicial factor) while a PO is in force. The aim is to ensure that any matter that would otherwise be dealt with by the court in private law proceedings will be dealt with by the permanence court (which has much the same powers and to which there is much the same access).

Similarly, s 89 of the new Act provides that on the making of a PO any existing supervision requirement will be brought to an end, though only if the court is satisfied that making the PO renders compulsory measures of supervision no longer necessary. But there is nothing to prevent a supervision requirement being made subsequently. In that case, s 90 of the new Act provides that a local authority may not do anything in the exercise of the parental responsibilities and parental rights it has in terms of the PO which is incompatible with any supervision requirement. The latter has, in other words, precedence.

Now, this rule in its terms applies only to local authorities and the PO may confer most of the parental responsibilities and parental rights on other persons, such as, typically, long-term foster carers. But these other persons may not act incompatibly with a supervision requirement either, because s 3(4) of the 1995 Act (which only applies to natural persons, according to s 15(4) of that Act, thus the necessity for s 90) gives precedence to supervision requirements. The only exception is when an interim PO is made under  s 97. If an interim PO is made over a child currently subject to a supervision requirement, the making of an interim order does not terminate the supervision requirement but the terms of the interim order will prevail over any inconsistent terms of that requirement (s 97(5)).

Still to be tested

Much still needs to be fleshed out in regulations and rules of court. Even after this Act comes into force, we are likely to have a lengthy period of uncertainty before the Court of Session gives us guidance on many other matters. The Act has certainly modernised our adoption system and is better for both children and prospective adopters. It cannot, however, be said to have simplified the law in any way at all.

Kenneth McK Norrie is a Professor of Law in the University of Strathclyde

WELFARE RESTATED: THE 2007 ACT

Under s 14 of the new Act 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. Certain specified factors are listed to be taken into account; the agency must also consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.