On 12 January 2017 the Supreme Court heard an appeal against a judgment of the Inner House to uphold, in part, the decision of the Lord Ordinary to grant a permanence order under the Adoption and Children Scotland Act 2007 (“the 2007 Act”).

The Background

lorraine-walkinshawThe appeal was brought by EV’s parents who both have learning disabilities. In 2010 EV’s father had been charged with offences of a violent and sexual nature, which were not progressed due to the vulnerability of the complainer. In December 2013 EV was born and was immediately taken into the care of the local authority. In March 2016 a permanence order was granted in respect of EV. The order contained mandatory provisions requiring parental responsibility of guidance to be vested in the local authority, together with the parental right to regulate the child’s residence. It also contained ancillary provisions which extinguished EV’s parents’ other parental rights and responsibilities and vested them in the local authority. In addition, the order specified that there should be no contact between EV and her parents and included an order granting authority to adopt. EV’s parents appealed the Lord Ordinary’s decision to the Inner House.

The Inner House

By the time of the Inner House hearing, the local authority had decided that the Lord Ordinary’s reasoning on the adoption aspect of the case could not be supported and that the appeal would not be contested in that respect. They continued to resist the appeal insofar as the other elements of the permanence order.

EV’s parents argued that the Lord Ordinary had failed to consider and apply the threshold test in the 2007 Act in respect of the permanence order and that the test was not satisfied. The Lord Ordinary had narrated evidence of allegations against EV’s father of criminal sexual conduct but had expressly declined to make a finding in relation to these allegations. It was argued, therefore, that the Lord Ordinary could not conclude that the allegations were relevant to his consideration of the threshold test, thus leading to an absence of findings supportive of the conclusion that the test had been satisfied.

It was further argued that the Lord Ordinary had fallen foul of the decision of the European Court of Human Rights in Sanchez Cardenas v Norway App. 12148/03, (2007) 49 EHRR 6 and violated the father’s rights under ECHR, art 8 by considering the allegations without disposing of them “in terms of evidentiary assessment and reasoning”. EV’s father argued that contact should be reinstated as the effect of the Lord Ordinary’s decision was to leave the child without any natural person to exercise contact.

In its judgement the Inner House accepted that, whilst the Lord Ordinary concluded that the concerns about the father’s sexual proclivities were justified, he simultaneously declined a finding as to the truthfulness of the sexual allegations. It was similarly, accepted that the Lord Ordinary did not attempt to set out expressly his conclusion of the various provisions of section 84 of the 2007 Act, nor did he support those by direct references to findings in fact. Nevertheless, the Inner House concluded that whilst the Lord Ordinary’s discussion primarily related to the allegation against EV’s father, this was against a background of accepted deficiencies in the parents’ ability to provide basic elements of care. The Lord Ordinary had focussed his judgement on the disputed issues. The Inner House also made a number of inferences about the Lord Ordinary’s conclusions on primary areas of concern from his discussion of supporting evidence. The Inner House concluded that, properly understood, the decision of the Lord Ordinary could be supported and that he had identified and applied the correct test.

When addressing the issue of contact, the Lord Ordinary had referred to the benefit ceasing contact would have on the child’s relationship with her adoptive parents. As the child’s anticipated adoption was a key consideration in the Lord Ordinary’s decision to stop contact, and the appeal regarding the adoption aspect of the order was no longer contested, the Inner House felt unable to adhere to the Lord Ordinary’s decision in that regard and no order was made. The Inner House quashed the grant of authority to adopt and removed the prohibition on contact but granted the rest of the permanence order, in the terms set by the Lord Ordinary.

EV’s parents appealed the decision of the Inner House to the Supreme Court.

Issues for the Supreme Court 

The main issues in contention before the Supreme Court were:

  • Whether the Inner House erred in inferring that the Lord Ordinary had, in the absence of express reasoning, addressed the threshold test for making a permanence order in the Adoption and Children (Scotland) Act 2007, s 84(5).
  • Whether: (i) allegations against a parent can be taken into account in assessing whether a permanence order should be granted where no finding was made as to the truth of those allegations; and (ii) taking such allegations into account would violate the parent’s rights under ECHR, art 8.
  • Whether a permanence order can be made without any effective provision for a natural parent to exercise responsibilities and rights of contact.