On appeal from: [2016] CSIH 60


The appeal considered whether the Inner House erred in inferring that the Lord Ordinary had addressed the threshold test for making an Adoption and Children (Scotland) Act 2007 (the Act), s 84(5) permanence order in the absence of express reasoning. It also considered whether allegations against a parent can be taken into account in making such an order where there has been no finding of fact about the allegations, whether taking them into account violates ECHR, art 8, and whether making an order can be made without any effective provision for contact. The Supreme Court unanimously allowed the appeal, and refused the petition for a permanence order. Applying the threshold test of the Act, s 84 (5)(c)(ii), for which the judge is the primary decision maker, the Court held that the test of whether residence with a parent would be “seriously detrimental” to the child is a strict one. Because the Court must be “satisfied” that the criteria of the test is met, mere suspicions are inadequate to form the basis of a permanence order. Thus, the Supreme Court held that the Lord Ordinary’s approach had been deficient in that acting in a supervisory role to determine whether the local authority’s concerns about EV’s father were justified failed to apply the threshold test of s 84 (5)(c)(ii). The correct approach would have been to determine the truth of the allegations and then determine whether the threshold test was met in light of that finding. The Lord Ordinary should also have considered the matters under s 84 (5)(b). As such, the Supreme Court refused the application, though stating that it is open to the local authority to commence fresh proceedings as and when that may be appropriate as the evidence seen the previous hearings would now be stale.

For judgment, please download: [2017] UKSC 15
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (12 Jan 2017 Morning Session) (12 Jan 2017 Afternoon Session)