The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Held: The mother’s appeal failed. Section 3 of the 1998 Act imposes a special interpretive duty only if legislation, construed normally, would lead to a breach of the Convention. Where the ordinary meaning of the provision is incompatible with the Convention, the court must ask whether the incompatibility can be cured by interpreting it as required by section 3. If that does not succeed then it will not either be within the competence of the Scottish Parliament.
The scheme of the 2007 Act begins with an assumption of the need for parental consent. The limitations on exceptions are in fact more tightly specified than under the English equivalent, and derive from respect of the obligation to treat as paramount the welfare of the child. Decisions made applying the Act interppreted normally would not be incompatible. They have a legitimate purpose in protecting children, and are necessary and proportionate.
Nor was the provision expressed so widely as to make any decision otherwise that ‘in accordance with law’. Much discretion had to be left to the sherriff to reflect the very wide range of circumstances he might face.
Lord Reid said: ‘legislation authorizing the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity. Section 31(3)(d), in stipulating that the welfare of the child must ‘require’ that parental consent be dispensed with, is consistent with such a test. There must, in other words, be an overriding requirement that the adoption proceed for the sake of the child’s welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice. If the child’s welfare can be equally well secured by a less drastic intervention, then it cannot be said that the child’s welfare ‘requires’ that consent to adoption should be dispensed with.’
Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 30, UKSC 2012/0105
Bailii, Bailii Summary, SC Summary, SC
Adoption and Children (Scotland) Act 2007 31(3)(d), Human Rights Act 1998 3, Scotland Act 1998 29(2)(d)
England and Wales
Citing:
Cited – Regina (Wardle) v Leeds Crown Court HL 24-May-2001
The defendant had been held in custody awaiting committal on a murder charge. An additional charge of manslaughter was added. The defendant argued that this did not constitute a new offence so as to allow an extension of custody time limits.
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – NJDB v JEG and Another SC 23-May-2012
Mother and father disputed whether the father should be allowed contact with their child S. Court orders had been made for residential and non-residential contact, but there were difficulties and the order for contact was reversed on the basis that . .
Cited – Pontes v Portugal ECHR 10-Apr-2012
‘The Court repeats forcefully, in such cases, the interests of the child must come before any other consideration.’ . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Appeal from – ANS and Another v ML SCS 21-Jun-2011
In adoption proceedings, ML refused her consent to the proposed adoption. She argued that the provision in the 1997 Act (allowing a court to dispense with her consent) was beynd the competence of the Scottish Parliament, and infringed her right to . .
Cited – R And H v The United Kingdom ECHR 31-May-2011
The court considered arrangements for an adoption in Northern Ireland where the parent’s consent was withheld.
Held: For parental consent to be overriden there had to be shown an overriding need for the decision. . .
Cited – Principal Reporter v K SC 15-Dec-2010
The court was asked as to the right of an unmarried father to take part in Children’s hearings under the 1995 Act, and depending on the answer whether the scheme was human rights compliant. K was father of the child, but the mother was unmarried. He . .
Cited – DS v Her Majesty’s Advocate PC 22-May-2007
An amendment to the 1995 Act placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences. The defendant appealed, saying that the restrictions were incompatible with the right to a fair trial under . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
Cited – YC v The United Kingdom ECHR 13-Mar-2012
The court collated a number of different ways in which, in its previous judgments, it had sought to explain the requirements of necessity and proportionality in relation to adoption orders made against the wishes of the parents: ‘The Court . .
Cited – Sahin v Germany ECHR 11-Oct-2001
When considering the issues of an adoption against the wishes of the parents, there is an apparent difference of emphasis between saying that the child’s interests are of ‘paramount importance’, and saying that they merely ‘may, depending on their . .
Cited – Kuijper v Netherlands ECHR 3-Mar-2005
The court considered provisions allowing the adoption of a child against the wishes of the parents. The parents complained that the procedure was not in accordance with law because it lacked legal certainty.
Held: The claim failed. A measure . .
Lists of cited by and citing cases may be incomplete.
Scotland, Human Rights, Constitutional, Adoption
Updated: 01 November 2021; Ref: scu.462501