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Inner House case on the transitional arrangements for freeing for adoption

Making provision where no provision has been made

A fraught situation arose where a child had been freed for adoption after repeal of the Adoption (Scotland) Act 1978.  The statutory instrument containing the transitional arrangements made no provision for the case where a freeing order was granted after 28th September 2010, as had occurred here.  The Sheriff had read words into the Order and had granted the application, ordering that the child be treated as subject to a permanence order:  Aberdeen City Council v O 2011 SLT (Sh Ct) 43. Another Sheriff had held to the contrary that such proceedings became incompetent: Aberdeenshire Council, Petitioners 2011 Fam LR 16. The matter came before the Inner House in IO and LO v Aberdeen City Council [2011] CSIH 43 in which Daniel Kelly QC acted for Aberdeen City Council. The Second Division held that redress could be granted for the draftsman’s failure and that the child should be treated as if he were subject to a permanence order. Lord Hardie added certain trenchant remarks as to the inappropriateness of combining commencement orders with transitional and savings provisions, which seemed the likely explanation for the inadequate draftsmanship.