West Lothian Council asked for a permanence order, with authority to adopt, for EV, who had been in care since birth. The Supreme Court held that such an order can be made only if the court itself finds, from facts proved on the balance of probabilities, that living with each parent is likely to be seriously detrimental to the child. Suspicions, and a reasonable response by the council, are not enough. The parents’ appeals were allowed and the petition was refused.
EV was in care from birth. The council sought a permanence order and authority to adopt under the Adoption and Children (Scotland) Act 2007. Both parents opposed it. The Inner House upheld the permanence order but set aside the authority to adopt and the prohibition on contact.
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Permission was prompted by whether the English guidance in In re J, on the threshold for compulsory intervention, applies under different Scottish legislation. By the hearing the parties agreed that the majority decision in that case, including Lord Hope’s rule that a prediction of future harm must rest on facts proved on the balance of probabilities, applies here. Lord Reed, with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed, explained the point because neither court below had followed that approach.
The test for a permanence order
A permanence order gives the local authority the right to decide where the child lives and the responsibility to guide her, and may transfer or extinguish other parental rights and responsibilities. If authority to adopt is also sought, the court must be satisfied that the child has been, or is likely to be, placed for adoption.
Section 84 lays down separate conditions. The threshold is section 84(5)(c). Both parents had the right to regulate EV’s residence, so the court had to be satisfied, for each of them, that her living with that parent was, or was likely to be, seriously detrimental to her welfare. Only if that factual test is met may the court ask whether an order would be better for the child than no order, and treat her welfare throughout childhood as the paramount consideration. Welfare cannot be used to bypass the threshold.
The judge decides the facts. The question is not whether the council acted reasonably on its concerns. Unproved allegations and a real possibility that something happened cannot found a prediction of likely harm. If a disputed allegation matters, it must be found proved or put out of account. The burden is on the party seeking the order. “Seriously” is important: it is not enough that the child might benefit from being brought up elsewhere, and very diverse standards of parenting must be tolerated.
The reasons must show that the statute has been applied. If the threshold is met, the court should identify the likely detriment, why it is likely, and why it is serious, and should compare the realistic options. It must have regard to the child’s racial origin and cultural and linguistic background. It must also ensure that every parental responsibility and right, including contact where the child is not living with a parent, vests in a person. That person cannot be the local authority.
The decision at first instance
The Lord Ordinary, who decided the case before the Inner House’s guidance in R v Stirling Council, did not set out these separate conditions or distinguish a permanence order from authority to adopt. He asked whether the council had responded reasonably to concerns for which some material existed, and he made no finding on the threshold.
Restrictions had prevented the father from having meaningful contact with EV. The judge did not explain why the restrictions had been maintained or why no assessment of his parenting had been undertaken.
The council relied on allegations about the father. The judge accepted that the council had reason for concern but made no finding that the allegations were true. If an allegation was material to the statutory threshold, he had to decide whether it had been proved.
The judge also misunderstood the evidence about a threat. It was for the court to assess the significance of the incident actually proved when considering the risk to the child.
On care, the Lord Ordinary accepted evidence that the mother had not engaged fully and had only basic parenting skills. Helen Stirling, an expert called for the mother, said that even with extensive support the mother might master only physical tasks and might not meet EV’s emotional and social needs. The mother had, with a previous partner, looked after two older children without significant local-authority support until 2012. It was not suggested that the father could demonstrate the necessary skills, but the onus was on the council, which had not assessed him. Difficulties with money and hygiene were proved, but treated as less significant.
The judge made no finding about how likely adoption was and did not address important features of EV’s own circumstances or the alternatives for her future care.
His conclusion was that, for the child’s safety and welfare throughout childhood, the orders sought were necessary. That did not identify the threshold, separate adoption from a permanence order, or compare the options, including a permanent home with her parents if adoption was unlikely.
The Inner House
It was conceded that authority to adopt could not be supported. The Lord Justice-Clerk treated the other defects as more apparent than real and read the conclusion as applying the threshold: “safety” was taken to mean serious detriment, and “necessity” to show proportionality. Lord Reed disagreed. Section 84(5)(c)(ii) does not refer to safety, or to welfare throughout childhood. A specialist judge cannot be assumed to have applied a test which the opinion never identifies.
The Second Division also treated parenting deficiencies and the three concerns as enough. Lord Reed held that the evidence did not support that reading. Ms Stirling had said the mother “might not” manage the more complex tasks, not that she would not. The father had not been assessed. The 2010 allegations had expressly not been found proved, so they could not found a prediction of harm. An implication that the father might sexually assault his own daughter could not be left as an inference from the opinion. A “risk” of serious detriment is not the statutory test. The court did not consider EV’s racial, cultural and linguistic background or analyse the realistic options. It did quash the authority to adopt and remove the contact prohibition made in anticipation of adoption.
Why the case was not sent back
The council asked for the reclaiming motions to be reconsidered by the Inner House on the transcript and any further evidence. The parents asked for the petition to be refused. Lord Reed regarded a decision on paper as unattractive. The proof was by then more than a year old; later events might matter; and the parents’ learning difficulties made seeing and hearing them important, especially in judging the alleged remark about the older child. The evidence also appeared not to have focused on EV and her needs. The council still considered adoption best and would need a further application in any event. The practical course was to refuse the petition and leave the council to start fresh proceedings if appropriate, with an opportunity to reconsider assessing the father as a parent.
Verdict: The Court unanimously allowed both parents’ appeals and refused the council’s petition. It did not remit the case. The council could bring fresh proceedings on appropriate evidence.
Source: In the matter of EV (A Child) (Scotland) [2017] UKSC 15
