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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> ANS & Anor v ML [2012] UKSC 30 (11 July 2012) URL: https://www.bailii.org/uk/cases/UKSC/2012/30.html Cite as: [2012] UKSC 30, [2012] HRLR 27, 2012 SLT 961, 2013 SC (UKSC) 20, 2012 GWD 24-488, 2012 Fam LR 108 |
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Trinity Term
[2012] UKSC 30
On appeal from: [2011] CSIH 38
JUDGMENT
ANS (Respondent) and another v ML (AP) (Appellant) (Scotland)
before
Lord Hope, Deputy President
Lady Hale
Lord Wilson
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
11 July 2012
Heard on 21 and 22 May 2012
Appellant Lord Davidson of Glen Clova QC Maria Clarke (Instructed by Drummond Millar LLP) |
Respondent Morag B Wise QC Catherine Dowdalls (Instructed by JK Cameron) |
|
Respondent Gerry J B Moynihan QC Alastair J Duncan (Instructed by The Scottish Government Legal Directorate ) |
LORD REED (WITH WHOM LADY HALE AND LORD WILSON AGREE)
The legislation
"(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied—
(a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or
(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3)."
Put shortly, the first condition will therefore be met where the court is satisfied that each parent or guardian of the child consents to the making of an adoption order, or that the parent's or guardian's consent should be dispensed with on one of the grounds mentioned in subsection (3).
"(3) Those grounds are—
(a) that the parent or guardian is dead,
(b) that the parent or guardian cannot be found or is incapable of giving consent,
(c) that subsection (4) or (5) applies,
(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with."
"(4) This subsection applies if the parent or guardian—
(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the [Children (Scotland) Act 1995],
(b) is, in the opinion of the court, unable satisfactorily to—
(i) discharge those responsibilities, or
(ii) exercise those rights, and
(c) is likely to continue to be unable to do so.
(5) This subsection applies if—
(a) the parent or guardian has, by virtue of the making of a relevant order, no parental responsibilities or parental rights in relation to the child, and
(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian."
A "relevant order", for the purposes of subsection (5), is a permanence order which does not include provision granting authority for the child to be adopted: section 31(6).
"(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The court or adoption agency must have regard to all the circumstances of the case.
(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.
(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—
(a) the value of a stable family unit in the child's development,
(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),
(c) the child's religious persuasion, racial origin and cultural and linguistic background, and
(d) the likely effect on the child, throughout the child's life, of the making of an adoption order."
"(1) An adoption order is an order made by the appropriate court on an application under section 29 or 30 vesting the parental responsibilities and parental rights in relation to a child in the adopters or adopter.
(2) The court must not make an adoption order unless it considers that it would be better for the child that the order be made than not.
(3) An adoption order may contain such terms and conditions as the court thinks fit."
"(1) … a parent has in relation to his child the responsibility—
(a) to safeguard and promote the child's health, development and welfare;
(b) to provide, in a manner appropriate to the stage of development of the child—
(i) direction;
(ii) guidance,
to the child;
(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative,
but only in so far as compliance with this Section is practicable and in the interests of the child."
Section 2(1) provides:
"(1) … a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—
(a) to have the child living with him or otherwise to regulate the child's residence;
(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;
(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The argument
The correct approach to interpretation
The background to the legislation
"The grounds being introduced in England and Wales under the 2002 Act have the attraction of simplicity. It is also desirable in an issue such as adoption that the approach taken on both sides of the border should be broadly similar. There is, however, an issue about whether the welfare test gives sufficient weight to birth parents' interests. The Group believed that the test must be more stringent than whether the prospective adopters would give the child a better life than the birth parents (sometimes known as 'a beauty parade'). The welfare of the child must require the birth parents' consent to be dispensed with. This test should be at least equivalent to that in article 8 of the European Convention on Human Rights (ECHR) which requires that any interference in private or family life must be in accordance with law and necessary to protect health or the rights and freedom of others. The Group considered that the test in the 2002 Act would be improved if it reflected article 8 more exactly."
"The Group recommends that the current grounds for dispensing with the agreement of birth parents should be changed and that those in the 2002 Act should be adopted, amended to reflect the 'necessity test' in article 8. These grounds are clear and straightforward and give due consideration and protection to the rights of birth parents."
"The Bill introduces new grounds for dispensing with parental agreement to the child being placed for adoption. The existing grounds, set out at section 16(2) of the Adoption (Scotland) Act 1978, are considered to be too complicated and difficult to apply. The Bill will introduce simpler grounds based on the parent or guardian not being found or being incapable of giving consent, or the welfare of the child requiring that parental consent is dispensed with. This will make it a more straightforward process and will reinforce the fact that the welfare of the child is the paramount consideration when considering whether to dispense with the need for parental consent."
The interpretation and application of the legislation
"(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed with."
Section 52(1)(b) of the 2002 Act applies in any situation where section 52(1)(a) does not: in other words, in any situation where the parent's whereabouts are known and she is of full capacity.
"In this country we take the removal of children from their families extremely seriously … it is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society."
"What is also important to appreciate is the statutory context in which the word 'requires' is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption … and what therefore has to be shown is that the child's welfare 'requires' adoption as opposed to something short of adoption. A child's circumstances may 'require' statutory intervention, perhaps may even 'require' the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily 'require' that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is 'required' is adoption."
"In assessing what is proportionate, the court has, of course, always to bear in mind that adoption without parental consent is an extreme - indeed the most extreme - interference with family life. Cogent justification must therefore exist if parental consent is to be dispensed with in accordance with section 52(1)(b). Hence the observations of the Strasbourg court in Johansen v Norway (1997) 23 EHRR 33 ... That was a case where the court had to consider a permanent placement with a view to adoption. It said, at para 78:
'These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests.'
This is the context in which the critical word 'requires' is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective 'requires' does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable."
"La Cour le répète avec force, dans les affaires de ce type, l'intérêt de l'enfant doit passer avant toute autre considération."
Compatibility with the Convention rights
"119 Plainly article 8 is engaged; and it is elementary that, if article 8 is not to be breached, any … adoption order made without parental consent in accordance with section 52(1)(b) of the 2002 Act, must be proportionate to the legitimate aim of protecting the welfare and interests of the child. As Hale LJ said in In re C and B (Care Order: Future Harm) [2001] 1 FLR 611, para 33:
'under article 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be "necessary in a democratic society".'
120 'Necessary' takes its colour from the context but in the Strasbourg jurisprudence has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a 'pressing social need.' Hale LJ continued, at para 34:
'There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'
121 She reiterated that in In re O (Supervision Order) [2001] 1 FLR 923 , adding, at para 28, that 'Proportionality, therefore, is the key'…
122 To the same effect is the judgment of Thorpe LJ in In re B (Care: Interference with Family Life) [2003] 2 FLR 813, para 34:
'where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 article 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.'
123 That last observation reflects the well established principle … that, particularly in the context of public law proceedings, the court should adopt the 'least interventionist' approach. As Hale J said in In re O (Care or Supervision Order) [1996] 2 FLR 755, 760:
'the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary.'"
"The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway (1997) 23 EHRR 33 para 78; Kearns v. France (2010) 50 EHRR 33, para 79; and R and H v United Kingdom (2012) 54 EHRR 2, paras 73 and 81). In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child's best interests to ensure his development in a safe and secure environment (see Neulinger v Switzerland(2012) 54 EHRR 31, para 136; and R and H, cited above, paras 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family (see Neulinger, cited above, para 136; and R and H, cited above, para 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T v Finland (2001) 36 EHRR 18, para 173; and TS and DS v United Kingdom (Application No 61540/09, BAILII: [2010] ECHR 2256 ) (unreported) given 19 January 2010). However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained (see Neulinger, cited above, para 136; and R and H, cited above, para 73)."
"The identification of the child's best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act … broadly reflect the various elements inherent in assessing the necessity under article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives."
"As regards the applicant's argument that the Arts 1:228 and 3.13 of the Civil Code and their application in practice fell short of the requirement of foreseeability, the Court considers that it is a logical consequence of the principle that laws must be of general application that the wording of statutory provisions is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. However clearly drafted a legal provision may be, its application in practice involves an inevitable element of judicial interpretation and assessment of facts, which do not by itself make a legal provision unforeseeable in its application. On many occasions and in very different spheres the Court has held that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, for example, Winterwerp v Netherlands (1979) 2 EHRR 387 at [46]; Iglesias Gil v Spain (2005) 40 EHRR 3 at [61]; and Slivenko v Latvia: (2004) 39 EHRR 24 at [105]).
Accordingly, an issue of foreseeability could only arise under the Convention if the national courts' assessment of the facts or domestic law was manifestly unreasonable or arbitrary."
The procedure in the present case
"Minimum of delay
3. It shall be the duty of the court to secure that all applications and other proceedings under the Act are dealt with as expeditiously as possible and with the minimum of delay. Such applications and proceedings require the co-operation of all concerned and active and firm case management by the sheriff throughout their course."
"20. … The parties should therefore apply their minds to the question whether any evidence might be appropriately presented in the form of an affidavit or other document and the sheriff should encourage them to decide that question at the pre-proof hearing. The sheriff should also encourage the use of affidavits to cover non-contentious (or indeed contentious) issues where that would save the time of witnesses and the court. …
21. Where the author of a report or the maker of a statement which has been or is to be lodged is to be called as a witness, the sheriff may order that the report or statement is to be held to be equivalent to the witness's examination-in-chief, unless for special reasons he or she otherwise directs.
22. The sheriff should discourage the unnecessary use of expert witnesses. If expert evidence is essential, the sheriff should encourage the joint instruction of a single expert by all parties. …
…
24. At a proof it should be borne in mind that 'there is a heavy responsibility on the parties' representatives to exercise all reasonable economy and restraint in the presentation of the evidence and in their submissions to the court' (Lothian Regional Council v A 1992 SLT 858 at 862B). The sheriff may therefore exercise his or her existing common law power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision."
"It shall not be competent for a party to any proceedings to raise a devolution issue after proof is commenced, unless the sheriff, on cause shown, otherwise determines."
"Legal issues
At a pre-proof hearing the sheriff should ask the parties if there are any questions of admissibility of evidence or any other legal issues, including any questions under the European Convention on Human Rights, that are likely to arise at the proof. If so, the sheriff should consider whether they could with advantage be determined at this hearing rather than at the proof. Alternatively, the sheriff may adjourn the pre-proof hearing to another date in order to enable any such issue to be argued and determined. If a legal issue is not raised at the pre-proof hearing, the sheriff may refuse to allow it to be raised at the proof except on cause shown."
LORD HOPE
LORD CARNWATH (WITH WHOM LORD WILSON AGREES)
"134. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child's best interests must be the primary consideration (see, to that effect, Gnahoré v. France, Application No. 40031/98, § 59, ECHR 2000 IX, BAILII: [2000] ECHR 420), as is indeed apparent from the Preamble to the Hague Convention, which provides that 'the interests of children are of paramount importance in matters relating to their custody'. The child's best interests may, depending on their nature and seriousness, override those of the parents (see Sahin v Germany [GC], Application No. 30943/96, § 66, ECHR 2003 VIII, BAILII: [2003] ECHR 340). The parents' interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (ibid, and see also Haase v. Germany, Application No. 11057/02, § 89, ECHR 2004 III (extracts), BAILII: [2004] ECHR 142, or Kutzner v. Germany, Application No. 46544/99, § 58, ECHR 2002, BAILII: [2002] ECHR 160, I, with the numerous authorities cited).
135. The court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49-56 above, and in particular Article 24 § (2) of the European Union's Charter of Fundamental Rights). As indicated, for example, in the Charter, "[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests".
136. The child's interest comprises two limbs. On the one hand, it dictates that the child's ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to 'rebuild' the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child's interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development (see, among many other authorities, Elsholz v Germany [GC], Application No. 25735/94, § 50, ECHR 2000 VIII, BAILII: [2000] ECHR 371, and Maršálek v the Czech Republic, Application No. 8153/04, § 71, 4 April 2006, BAILII: 2006] ECHR 321)." (emphasis added)
"(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with."
The proposed alternatives were:
"(d) that… neither of those subsections applies and..., notwithstanding the non application of (4) and (5), the parent is particularly unfit or harm will result to the child's health and development by the exercise of parental responsibilities or parental rights in relation to the child.
or
(d) that… neither (4) nor (5) applies but the parent is particularly unfit or would cause harm to the child in the event of residence or contact. "
The only significant difference appears to be in the relative of simplicity of the latter. As I understand it, both suggested drafts are designed to bring the "precision" said to be lacking in the statute (see Lord Reed para 45ff). The wording reflects the apparently mandatory and exclusive character implied by the word "dictates".
"The Court further recalls that a fair balance must be struck between the interests of the child and those of the parent and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular the parent cannot be entitled under article 8 of the Convention to have such measures taken as would harm the child's health and development."
The context was that the finding of a violation of the father's rights when he was refused contact, principally because of the profound dislike of him developed by the mother, and without anyone seeking the views of the child. In that context one can understand why the legal test was put as it was, but it may not fit readily into the analysis in Neulinger.
"l'intérêt supérieur de l'enfant devant toutefois constituer la consideration déterminante… Cela étant, l'intérêt des parents, notamment à bénéficier d'un contact régulier avec l'enfant, reste un facteur dans la balance des différents intérêts en jeu."