Advocates Library Parliament House Edinburgh EH1 1RF
Sections 95-97 of the Adoption and Children (Scotland) Act 2007 introduce provisions regulating the interaction between the sheriff court and the children’s hearing where an application for a permanence order has been made and the children’s hearing proposes to make or vary a supervision requirement. The effect of the provisions is to prevent a supervision requirement being made or modified until the application for the permanence order has been determined, unless the court refers the case to the Principal Reporter. The court is also empowered to make “such interim order as it thinks fit” (section 97(2)). These provisions have been considered in a number of cases.
In the first reported case, City of Edinburgh Council Petitioner (No 1) 2010 FamLR 89 the local authority had lodged an application for a permanence order with authority to adopt. The children’s hearing proposed varying the supervision requirement to allow the child to live with the prospective adopters and to terminate contact. The local authority moved the court to refer the case to the Principal Reporter to implement the variation. The parents opposed the motion on the grounds that the modification was not in the child’s best interests, it would prejudice the parents’ position in the court action perhaps pre-empting the outcome, and the legislative provisions were unclear. Sheriff Mackie had concerns about the meaning of “the child’s case” in section 96(3) of the 2007 Act and whether the provision would permit the children’s hearing to make variations to the supervision requirement going beyond what had originally been proposed in the report to the court, and about whether further modifications could be made without reference to the court. She held that in terms of the legislation the court was the principal forum for decisions about the welfare of the child while an application for a permanence order was being considered, and that it was difficult to conceive of circumstances when the court might refer the child’s case to the Principal Reporter. She also held that it was open to the court to make interim orders and that if, while the application for a permanence order was being considered, changes were required to the arrangements for the child whether that be place of residence, contact or attendance at a particular school or otherwise, an appropriate motion might be made. Sheriff Mackie had regard to the facts of the case (which were not unusual) and refused the motion.
The provisions were considered in detail again in City of Edinburgh Council Petitioner 2011 FamLR 83. In this case the children’s hearing sought to reduce contact pending the determination of the application for a permanence order with authority to adopt. The local authority invited the sheriff to remit the matter to the Principal Reporter for implementation of the recommendation, but the father argued that the matter should not be remitted and that contact should not be reduced. Sheriff Holligan refused to remit the matter to the children’s hearing on account of practical considerations and also because of the importance of the question of contact in relation to the permanence order. He made an interim contact order that there be one period of contact prior to the pre-proof hearing and that all further questions of contact should be continued to the pre-proof hearing.
Sheriff Holligan agreed with sheriff Mackie that whilst a permanence order was being considered, it was the court which was the principal forum for making decisions in relation to a child. In his opinion the function of the court was to have regard to what the children’s hearing proposed to do and to consider what, if any, effects such a proposal would, or might have, on the permanence order proceedings - in effect, the court was given the function of policing any overlap there might be between the two statutory procedures. The court was not deciding whether the proposal should be approved or granting its imprimatur to the proposal, but instead was deciding whether the children’s hearing should proceed to consider the proposal. Whereas sheriff Mackie had had concerns about whether the children’s hearing could vary a supervision order beyond the variations proposed in the report to the court, sheriff Holligan was of the view that if the court did refer the matter to the Principal Reporter then the children’s hearing would be limited to considering the proposal which was the subject of the report to the court. He observed that the ordinary rights of appeal pursuant to section 51 of the Children (Scotland) Act 1995 would apply to any decision made by the children’s hearing.
In East Lothian Council Petitioner scotcourts website 20 January 2011, 2011 GWD 5-148 sheriff Gillam explained his reason for refusing to remit the children’s hearing proposal to vary the supervision requirement so that the child could move to live with prospective adopters. Sheriff Gillam took the view that as the proof was due to take place the following month it would not be in her interest to move her. He said that if the permanence order was not granted, the child would have been moved unnecessarily. He was aware of the difficulty being caused to the child by becoming attached to her present carers with whom she would not have a permanent home, but, in view of the short period of time until a decision would be made, he thought it better for her to remain in her present home until the matter was decided.
Both sheriff Mackie and sheriff Holligan referred to the possibility of the court making an interim order in terms of section 97(2) of the 2007 Act. In Dumfries and Galloway Council scotcourts website 17 July 2012, 2012 GWD 27-561 sheriff Ross granted the parents’ motion for interim contact with their children, the contact to be observed by a psychologist instructed by the parents for the purposes of the proof. This case is different from the other cases referred to since it involved a direct application by the parents to the court under section 97(2), rather than a proposal by the children’s hearing to vary a condition in the supervision requirement. Sheriff Ross analysed the terms of the 2007 Act and the decisions of sheriff Mackie and sheriff Holligan, both of whose conclusions he broadly accepted. He held that it was competent for the court to grant a motion for interim contact at the instance of parents who had not been deprived of the parental responsibility and right of contact. He considered that although section 97(2) did not specify the test to be applied, the interests of the children required to be considered. In the circumstances of the case he held that it was in the interests of the children that the motion be granted. He noted that expeditious determination of the permanence order application and providing the court with information which would be of assistance in determining the application may be in the best interests of the children. He held that the benefit of the opportunity for the psychologist to observe contact outweighed any temporary distress or confusion which contact might bring. He held that preparation of the children before contact was the key, and that he was entitled to assume that the children’s current carers and the council employees supervising the care would carry out the preparation reflecting the law set out in Blance – v – Blance 1987 SLT 74 and Brannigan – v – Brannigan 1979 SLT (Notes) 73, and that if that was done properly, conscientiously and responsibly it was difficult to see the interests of the children or their welfare would be adversely affected. Sheriff Ross also considered whether the application was in truth an application for contact or whether it was essentially a procedural application comparable to a motion for production of documents or the inspection of a locus. Since the motion was made at a pre-proof hearing, it was competent in terms of rules 36(3)(c) and (d) of the Sheriff Court Adoption Rules 2009 and had the motion been made in terms of that rule he would have granted it for the same reasons.
It is not yet clear what effect sections 95 to 97 of the 2007 Act will have on applications for permanence orders. It is perhaps to be expected that representatives for parents will oppose local authority motions which might have the effect of permitting a child to be moved to live with prospective adopters, or to reduce contact. The ultimate decision reached by the court in the permanence application may be affected: if ongoing direct contact is maintained until the date of the proof on the application for the permanence order, that is likely to form part of the parent’s argument that a condition of direct contact should be made and this may strengthen the parent’s chances for post-adoption contact. Similarly if the child has not been moved to live with prospective adopters, the argument that it would be seriously detrimental to the welfare of the child to reside with her parents because this would involve disruption of a stable home environment will not be able to be made. And if a parent does not object to the proposed variation of the supervision requirement, the local authority may seek to rely on this in submissions as they did in the appeal to the Court of Session in East Lothian Council, Petitioners, 2012 FamLR 7, para 43 (a case which is quite separate from the East Lothian Council case referred to above).
The possibility of obtaining interim orders under section 97(2) is a welcome development for parents in particular. It is perhaps to be expected that the use of section 97(2) may lead to more expeditious decisions, and this will benefit the child. As sheriff Holligan points out, an appeal to the sheriff may be made against a decision of a children’s hearing following a remit by the sheriff dealing with the permanence order. This raises the possibility that one sheriff might require to consider the section 51 appeal while another sheriff, possibly in a different sheriff court, would require to consider the permanence order. Both local authorities and parents may prefer to invite the sheriff dealing with the permanence order to make an interim order under section 97(2) and thus avoid the situation where two different courts might be dealing essentially with the same issue at or about the same time.
Finally, as sheriff Ross noted in the postscript to D Petitioner scotcourts website 15 September 2011, 2012 SLT (Sh Ct) 73, there is no mechanism for the court to consider applications pending an adoption. In those cases the children’s hearing retains the decision-making power which is subject to an appeal to the sheriff under section 51 of the Children (Scotland) Act 1995. Reduction of contact is perhaps the issue most likely to arise in such cases.