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Adopting Scottish Children in England

Lorraine Cavanagh, barrister of St Johns Buildings, explains the implications of a recent important judgment of the President concerning the English courts’ recognition of permanence orders of Scottish children.

Lorraine Cavanagh, barrister, St Johns Buildings













Lorraine Cavanagh, barrister, St Johns Buildings

The President of the Family Division, The Right Honourable Sir James Munby, handed down a judgment on the 17 January 2017, Re A and Others (Children: Scottish Adoptions) [2017] EWHC 35 (Fam) concerning six Scottish children placed by Scottish adoption agencies with prospective adopters in England. Each child was subject to a permanence order with authority to adopt, made by a Sheriff Court in Scotland. These prospective adopters had applied for an adoption order in their local Family Court. From the permanence order it appeared as though the children's natural parents had been stripped of their parental rights and responsibilities.  Perhaps unsurprisingly the court administration was unclear whether they should give notice to the parents, make them parties or whether the permanence order was recognised in England and Wales.  This conundrum was taken to the President.

Where the child is the subject of a permanence order with authority to adopt pursuant to the Adoption and Children (Scotland) Act 2007, then the third condition for the making of an adoption order, as required by section 47(6) Adoption and Children Act 2002, is met. The President held that there is no need for the court to obtain, or dispense with, the consent of the parent(s) to the adoption order. That has already been done by the Scottish court. 

The President concluded that the permanence order with authority to adopt completely strips the parent of their parental responsibility. The President found that the applicable definition of parental responsibility is that set out in section 3 of the Children Act 1989, not the definition utilised in Scotland set out in the Children (Scotland) Act 1995, sections 1 and 2. 

The natural parents are no longer parents within the meaning of the Family Procedure Rules 2010, or the Adoption and Children Act 2002. The parent(s) are not automatic respondents to the application pursuant to FPR rule 14.3(1). These parents will not be given notice that the application has been made.

The parent(s) should be joined as respondents pursuant to FPR rule 14.3(3) and 14.8 only if they retain exercisable rights of contact. The English court retains a discretion to make any person a party to an application. If that is done that is for the purpose of allowing them the opportunity of being heard in relation to future contact; the purpose is not to allow them to defend the proceedings or to oppose the making of an adoption order.


Recognition of Scottish permanence order

If it were necessary to address this question using common law principles then the dicta of Lord Justice Salmon, in Re Valentine's Settlement [1965] 1 Ch 831, would be the starting point.

However, the President found that it was unnecessary to turn to the common law as the Adoption and Children Act 2002 expressly includes a permanence order with authority to adopt as the third condition for the making of the adoption order under section 47 of the Act. Pursuant to section 47(1) the adoption may not be made unless one of the three conditions is met. The first is that the court must satisfy itself that each parent consents, or their consent should be dispensed with1. The second condition relates to unopposed adoptions2. Only the first and second condition are subject to the parent applying for leave to defend the making of the adoption order3.

Section 47(6)4 relates to the third condition:

"(6) The third condition is that the child –

(a) is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or

(b) is free for adoption by virtue of an order made under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S. I. 1987/2203 (N.I. 22))."

Consequently there is no need for action to be taken to recognise the Scottish order. The President stated at paragraph 41:

"In my judgment, the Scottish orders would be recognised at common law, under the principles in In re Goodman's Trusts (1881) 17 ChD 266 and In re Valentine's Settlement, Valentine and others v Valentine and others [1965] Ch 831 which I had to consider very recently in Re N (A Child) [2016] EWHC 3085 (Fam). But there is no need to consider that question any further, for section 47(6)(a) of the 2002 Act by necessary implication permits, and section 105(2) of the 2002 Act explicitly requires, the English court to recognise and give effect to a Scottish permanence order granting authority for the child to be adopted."


Parental consent to adoption

The permanence order with authority to adopt removes the need to obtain the consent of the parents to the adoption order both in England and Wales, and in Scotland.  Consent to the making of an adoption order was resolved when the Scottish court granted authority to adopt. The President explained this at paragraph 27:

"One of those conditions, and the one immediately relevant here, is that the parent's consent is dispensed with in accordance with sections 83(1) (c)(ii), 83(2)(c) and 83(3). It will be noticed that there is no provision for such a parent to apply for leave to oppose the making of an adoption order. So, where a permanence order granting authority for the child to be adopted is in force, the effect of sections 31(1) and 31(7) of the 2007 Act is that the court making an adoption order is no longer concerned with parental consent, for that has been dealt with at an earlier stage of the proceedings."5

The court noted that once a permanence order with authority to adopt has been made the parents cannot apply for leave to defend the adoption order application in England and Wales. The President considered that the dicta of Lord Justice Wall in Re F (Adoption: Natural Parent) [2006] EWCA Civ 1345 at paragraph 23, where he considered the previous version of this subsection, confirmed this interpretation of section 47. At paragraph 45 the President determined that the English court should not revisit the question of parental consent:

"Given the clear legislative intent to 'marry up' the Scottish process with the English process, I would be very reluctant to conclude that the English court should nonetheless revisit the question of parental consent. Of course, if that is in truth the effect of the 2002 Act then so be it. But in my judgment it is not. The effect of section 47(6)(a) read in conjunction with section 105(2) is, in substance, to put the English court hearing an application for an adoption order under the 2002 Act in the same position as the Scottish court would be if it was hearing an application for an adoption order for the same child under the 2007 Act. There is nothing in the 2002 Act requiring the English court to consider again the question of parental consent which has already been dealt with by the Scottish court." 


Defining a parent for the purposes of making an adoption order

This is succinctly characterised by the President at paragraph 48:

"Section 52(6) of the 2002 Act makes plain that "parent" for the purpose of section 52 means 'a parent having parental responsibility.' So the question becomes, do these parents have parental responsibility. In my judgment they do not."

'These parents' for this purpose are the Scottish parents who have had a child placed under the permanence order with authority to adopt. As set out below the Scottish law defines parental responsibilities and rights differently from the English law. The question as to which is applicable here turned on the interpretation to be given to section 105(2):

"A Scottish permanence order which includes provision granting authority for the child to be adopted has the same effect in England and Wales as it has in Scotland, but as if references to the parental responsibilities and the parental rights in relation to a child were to parental responsibility for the child (emphasis added)."

Applying a "…sensible, purposeful, construction, the meaning of section 105(2) is, in my judgment, apparent. One has to ask: Given the language and effect of the relevant Scottish order, does it leave the natural parents clothed with, to use the English term, parental responsibility?" (paragraph 60).


'Parental rights and responsibilities' versus 'parental responsibility'


In Scotland parents' responsibilities and rights are particularised in lists in, respectively, sections 1(1) and 2(1) of the Children (Scotland) Act 1995.

There are essentially four responsibilities6 (with broadly equivalent rights):

Responsibilities:

(a) The right to safeguard and promote the child's health, development and welfare;
(b) To provide (i) direction and (ii) guidance to the child;
(c) To maintain personal relations/direct contact where the child is not living with the parent;
(d) To act as the child's legal representative.

Rights:

(a) To have the child living with/regulate the child's residence;
(b) To control direct or guide the child's upbringing;
(c) To maintain personal relations/direct contact where the child is not living with the parent;
(d) To act as the child's legal representative.

The permanence orders made in respect of each of the six children by four different Sheriffs were essentially the same: insofar as they extinguished (a) (b) and (d) in both sections 1(1) [responsibilities] and 2(1) [rights] for each parent separately. The Sheriff vested each of those rights and responsibilities in the Scottish local authority. The determination of the child's residence and providing guidance to the child must be vested in a local authority before a permanence order can be made7.

Each of the parents retained the right, under section 2(1)(c) of the Children (Scotland) Act 1995 (as amended), "if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis" and the responsibility, under section 1(1)(c) of the Scottish Children Act, "if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis". Self-evidently a right to contact with the child cannot be vested in a corporate parent only an individual.8

Section 3 of the Children Act 1989 prescribes the ""Meaning of "parental responsibility" in England and Wales:

"(1) In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property…"

The President analysed the differences thus:

"[16] (ii)   Whilst in Scotland "parental responsibilities" and "parental rights" are each defined by reference to a free-standing statutory list of specific "responsibilities" or "rights", and the legislation expressly supersedes the common law (see sections 1(4) and 2(5)), in England "parental responsibility" is defined by reference to "all the rights [etc] which by law a parent of a child has in relation to the child (emphasis added)." So, in contrast to the Scottish scheme, where the statutory criteria are self-contained, the English scheme directs attention to the content of what it refers to as "law" – which in context can surely only mean the common law. So, one is inevitably drawn back to the learning in Hewer v Bryant [1970] 1 QB 357, with its references, 363, 373, 376, to "custody" as a "bundle of rights and duties", "bundle of rights" or "bundle of powers.""


Whether retention of the right/responsibility to maintain contact was enough to amount to PR?

All of the permanence orders with authority to adopt made an order restricting the parents' contact with the child, albeit that all were left with the right /responsibility to maintain contact with their child.  The President concluded that by retaining only the right to contact the parent does not retain parental responsibility. The President considered it self-evident that contact is one facet of parental responsibility, this proposition underlies a "vast mass of case-law under section 8 of the 1989 Act". By way of illustration he referred to the schedule to Wall J's judgment in A v A (Shared Residence) [2004] EWHC 142 (Fam). The residual parental responsibilities and rights left after a permanence order with authority to adopt does not resemble the bundle of rights which make up parental responsibility, as defined under section 3 of the Children Act 1989. At paragraph 56 he stated:

"[56] But the important point, and here the differences between the Scottish and English concepts may be significant, is that, as a matter of English law, contact is at most a facet of – it does not cover the whole territory occupied by – parental responsibility. For there is much embraced within the concept of parental responsibility as defined in section 3 of the 1989 Act which extends far beyond matters of contact. The key point is that section 3 defines parental responsibility as meaning "all the rights [etc]." It follows that a parent whose only surviving right, all other rights having been extinguished by order of a foreign court, is a right to contact, is not a parent who has parental responsibility within the meaning of section 3. In any event, the residual parental responsibilities and rights left to the parents in the cases before me cover such a comparatively modest part of the territory embraced by parental responsibility in the English sense that it cannot sensibly be said that they continue to have parental responsibility."


Procedural consequences

As none of the natural parents has parental responsibility, none is entitled to be joined as a party to the adoption application under Family Procedure Rules, rule 14.3. Where the Scottish orders give the parent a right to contact the President held that "that right is not, within the meaning of FPR 14.1(2) and FPR 13.1(2), a "provision for contact" for the purpose of FPR 14.3." (Paragraph 63)

"[65] Accordingly, those of the parents who retain exercisable rights of contact should, as a matter of discretion, be joined under FPR 14.3(3) and 14.8. But this must be accompanied by a clear explanation of the legal position; in particular, a clear statement that the purpose of the joinder is not to enable them to defend the proceedings or to oppose the making of an adoption order but simply to be heard on the issue of future contact."

This mirrors the approach taken in Scotland to natural parents, per the dicta of Lady Smith in East Lothian Council, Petitioners [2012] CSIH 3, 2012 Fam LR 7, para 28:

"Whilst the sheriff thus has a discretion when it comes to intimation of the adoption application, it will be incumbent on the court to consider whether or not, having regard to the whole circumstances including the parents' Convention rights there requires to be such intimation … Since the procedure involves the court being notified of any permanence order, if that order includes provision for contact between the child and a member of his natural family, we would expect the court to intimate the adoption application to any such family member, bearing in mind the article 8 rights involved."

In the East Lothian case the order was for two-way indirect contact. Those parents were granted party status.

Importantly, the President found that the court has the power to make the Scottish local authority holding PR for the child a party to the adoption application9.


Analysis

The following effects of a permanence order with authority to adopt may appear, at first blush, to be equivalent to those of a freeing order, a feature of English family law until 30 December 2005 –  a parent is not entitled:

(i) to be made aware of an adoption application in relation to their child;
(ii) to have an opportunity to apply for permission to defend the adoption of their child (should they have a significant change in circumstances); or
(iii) to be made a party to the adoption application.

However, under the permanence order the following procedural rights remain vested in the parent for the entirety of the period for which the child is under the permanence order and are not extinguished upon the child being placed for adoption:

(a) to apply for leave to vary any ancillary provision of the permanence order which is unlimited unless the court extinguishes this right upon an application to vary having been made10;
(b) upon any other party applying to vary an ancillary provision of the permanence order the right to be heard by the court11;
(c) to apply for leave to revoke the permanence order12;
(d) to receive notice that the child is placed for adoption13;
(e) to receive notice that the child has been made the subject of an adoption order14;
(f) to receive notice if the child ceases to be placed for adoption15.

Incidentally the applicable test in respect of the parents' right to apply for leave to revoke the permanence order appears to be wider than section 24(3) Adoption and Children Act 2002 where the court will not give leave "unless satisfied that there has been a change in circumstances since the order was made"; to revoke the permanence order the Scottish parent has only to satisfy the court that "…it is appropriate to do so in all of the circumstances in particular:

(a) A material change in the circumstances directly relating to any of the order's provisions,
(b) Any wish by the parent or guardian of the child in respect of whom the order was made to have reinstated any parental responsibilities or parental rights vested in another person by virtue of the order." (section 98 of the 2007 Act))

These are inherent procedural protections to ensure that parents "…retain access to routes which may enable them in certain circumstances to retrieve their parental responsibilities and rights and/or to vary or remove restrictions on contact." (paragraph 63). The permanence order is of a different character from a freeing order, whereupon, the child being placed for adoption, and the local authority giving notice to the 'former parents', the guillotine came down and immediately extinguished their right to make an application to revoke the order16. This permanently severed the remaining thread of parental rights17.

The effect of the judgment in Re A is not to treat parents in Scotland differently from parents in England and Wales, quite the reverse, it serves to ensure that the two processes are married up, to borrow the President's phrase, and the exercise of examining their consent to adoption is not duplicated in the Family Court in England. 

NOTE: As to the issue of recognition the courts, advocates and the President were not assisted by the Red Book18 which omitted the crucial subsection of section 47 and erroneously labelled it as referring to Scottish and Northern Irish law.  During their preparation for the case the advocates noted that the versions of subsection 6 of section 47 of the Adoption and Children Act19 on the Government website www.legislation.gov.uk and in Hershman and McFarlane were not up-to-date.
_______________________

Footnotes:

[1]    Section 47(2) Adoption and Children Act 2002.
[2]    Section 47(4) Adoption and Children Act 2002.
[3]    Section 47(3)(5)(7) Adoption and Children Act 2002.
[4]    The inclusion of subsection (6) into section 47 of the ACA 2002 was by SI Adoption and Children Act (Scotland) Act 2007 (consequential Modifications) Order 2011/1740.
[5]    References here are to the Adoption and Children (Scotland) Act 2007.
[6]    This is not the exact statutory wording. Rather a summary.
[7]    Section 81(1) and (2) of the Adoption and Children Act 2007- Scotland.
[8]    Section 82(1)(a) of the Adoption and Children Act 2007- Scotland.
[9]    This power is to be found in section 43(8) Adoption and Children Act 2002.
[10]  Section 92(1) and (2) Adoption Children Act 2007- Scotland.
[11]  Section 94 (1)-(3) Adoption Children Act 2007- Scotland.
[12]  Section 98(2)(b) Adoption Children Act 2007- Scotland.
[13]  Section 101(2) Adoption Children Act 2007- Scotland.
[14]  Section 101(2) Adoption Children Act 2007- Scotland.
[15]  Section 101(2) Adoption Children Act 2007- Scotland.
[16]  Section 20(1)(b) Adoption Act 1976.
[17]  Provided that there was no ongoing contact between former parent and child PCS v UK [2002] 35 EHRR 1075.
[18]  The Family Court Practice 2016, Family Law (Lexis Nexis).
[19]  The previous versions appear. On the government website the correct version can be found by examining the consequential modifications and orders which are flagged up as changes to that legislation.