Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was a question for the judge as a fact for him to find. He was exercising more than a supervisory role over the local authority. A finding as to the future likelihood of harm could not be made solely on allegations or suspicions, but instead required facts established on a balance of probabilities.
Held: The appeal was allowed. ‘It is entirely understandable that the Second Division should have sought to avoid further delay in determining the future of this young child. Nevertheless, with the greatest respect, the Lord Ordinary’s opinion did not provide a satisfactory basis for the Inner House to grant the application itself. In relying on the Lord Ordinary’s opinion to justify the conclusion that the threshold test had been met and that a permanence order should be made, the Second Division rendered their conclusion vulnerable to some of the same criticisms as his opinion. It involved taking account of unproved allegations of criminal conduct, contrary to the guidance given in In re J, which it is now conceded should be followed when applying the Scottish legislation. It involved finding that the threshold test was satisfied without clearly explaining what exactly the apprehended detriment was, why it was considered serious, and why it was considered likely (a ‘risk’ of serious detriment not being enough). It involved no consideration of the child’s racial origin and cultural and linguistic background, to which the court is required by statute to have regard. It involved the same failure as the Lord Ordinary’s opinion to explain satisfactorily why a permanence order should be made, on the basis of a reasoned analysis of the available options and an assessment of their respective pros and cons.’
Judges:
Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hodge
Citations:
[2017] UKSC 15, 2017 Fam LR 34, 2017 GWD 8-114, 2017 SC (UKSC) 67, UKSC 2016/0220
Links:
Bailii, SC, SC Summary, SC Summary Video, SC 12/01/17 am Video, SC 12/01/17 pm Video
Statutes:
Adoption and Children (Scotland) Act 2007
Jurisdiction:
Scotland
Citing:
Cited – In re J (Children) SC 20-Feb-2013
The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child’s death. Now, . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
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 – TW and JW v Aberdeenshire Council SCS 5-Apr-2012
(Extra Division) The court rejected an argument that sections 84(3) and (4) had a particular core status. It said that subsections (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Appeal from – West Lothian Council v MB and KV SCS 20-Jul-2016
(Second Division, Inner House) The primary source of the local authority’s concerns in relation to the child arose from what the Lord Ordinary described as ‘perceived concerns about the behaviour of [the father]’. The first concern, of particular . .
Cited – KR v Stirling Council SCS 24-May-2016
The Court discussed the tests in section 83 for the granting of authority for adoption. They include a requirement that the court must be satisfied that the child has been, or is likely to be, placed for adoption.
Lord Drummond Young stated: . .
Cited – TW and JW v Aberdeenshire Council SCS 5-Apr-2012
(Extra Division) The court rejected an argument that sections 84(3) and (4) had a particular core status. It said that subsections (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 23 July 2022; Ref: scu.577935