Scottish adoption law compatible with human right to family life

This case concerned a mother who opposed an adoption order being made for her child. The mother challenged the legislation which allowed the court to make an adoption order without her consent, arguing that it was incompatible with her ECHR, art 8 rights to private and family life. However, the Supreme Court ruled that there was no breach of the Convention.

The appellant mother argued that the Adoption and Children (Scotland) Act 2007, s 31 was incompatible with the Convention. This would mean it was unlawful, as statutory provisions incompatible with the ECHR are not within the legislative competence of the Scottish Parliament under the Scotland Act 1998, s 29(2)(d) (this is different to the UK Parliament in Westminster, which is able to legislate contrary to the ECHR, and the most the courts can do under the Human Rights Act is make a declaration of incompatibility).

Specifically, the mother argued that s 31(3)(d) of the 2007 Act breached her art 8 rights. This subsection allows an adoption order to be made without the parent’s consent where one of several grounds are met. The grounds are that:

1. The parent is dead

2. The parent cannot be found or is incapable of giving consent

3. The parent is, in the opinion of the court, unable satisfactorily to discharge their parental responsibilities towards the child and likely to continue to be unable to do so; or an order has been made removing their parental responsibilities and rights.

4. Even if the conditions in ground 3 do not apply, “the welfare of the child otherwise requires the consent to be dispensed with“.

It was this last ground that was applied in this case, and which the mother argued was insufficiently precise and therefore meant that an order made on that ground was not ‘in accordance with the law’ as required by art 8(2) for any interference with her right to private and family life.

The main judgment was given by Lord Reed, one of the two Scottish Justices of the Supreme Court and one of the most recent appointees, who dispensed with the mother’s argument fairly swiftly. He held that the meaning of the subsection was clear and the word ‘requires’, particularly read in the context of the whole statute, meant it was a high threshold that must be crossed before an adoption order without consent would be made. The use of general language in a context where judges must make highly fact-specific decisions is not inconsistent with Convention rights, and indeed there is recent Strasbourg case-law which makes this point in the very context of adoption.

Broader issues

Although the decision in this case was relatively straightforward, there are three broader issues raised in the judgment that have broader impact.

The first is the helpful summary in Lord Reed’s judgment of the correct approach to interpretation under the HRA. He criticised lawyers who jump to use the HRA as soon as human rights are mentioned, and reminded them that the proper method is as follows:

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…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…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 breach of its international obligations. Those international obligations include those arising under the Convention. 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.

Anyone bringing or contemplating bringing a human rights claim would be wise to bear this careful, sensible explanation in mind.

That was not the only chiding of human rights lawyers in this judgment. The second was from Lord Carnwarth, who had a go at the habit some have of citing large amounts of Strasbourg case-law in court:

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.

Lord Carnwarth also commented on the tendency of the ECtHR to summarise previous decisions at length in its judgments, and he emphasised the need to be careful not to cite chunks of these summaries and present them as new statements of law:

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. …[T]he 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.

Thirdly and finally, the Justices all emphasised the importance of quick decisions in adoption cases and expressed concern about the fact that adoption proceedings had begun in this case in November 2009, that the decision whether to make an order would now have to be referred back to the original judge, and that all this delay had profoundly negative effects on the child in question. This is a good reminder that, in the end, any decision about adoption must put the interests of the child front and centre, and that this applies as much to the process as to the eventual result.

Alasdair Henderson is a barrister at One Crown Office Row. This post originally appeared on the UK Human Rights Blog and has been reproduced with kind permission and thanks