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Re A and O (Children - Scotland) [2017] EWHC1293 (Fam)

The President of the Family Division provides further guidance on applications for adoption orders brought by English applicants in respect of Scottish children

This is the second recent judgment providing guidance on procedure in cases where orders are sought for adoption of Scottish children by proposed adopters resident in England. In Re A and others [2017] EWHC 35 (Fam) Munby P had considered children who were the subjects of permanence orders of the (Scottish) Sheriff Court, granting authority to adopt under sections 80 and 83 of the Adoption and Children (Scotland) Act 2007. In this case, to two Scottish children, A and O, had been placed with carers in England by Dundee City Council following a (Scottish) Children's Hearing of a compulsory supervision order under section 83 of the Children's Hearings (Scotland) Act 2011. Complexities arise in such cases about the application and interactions of the provisions in FPR rule 14, the Adoption and Children Act 2002, and two pieces of Scottish legislation: the Adoption and Children (Scotland) Act 2007 and the Children's Hearings (Scotland) Act 2011.
Each such case will turn on its specific facts, but this decision provides some guidance of general applicability.

First, Munby P held that the (English) Family Court had jurisdiction to hear this application for an adoption order pursuant to the 2002 Act irrespective of whether A and O were, or were not, habitually resident in England. Per In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, paras 76-77, that jurisdiction hangs on the domicile or habitual residence of the proposed adopters. Likewise, the Family Court had jurisdiction to dispense with the parents' consent in accordance with section 52(1)(b) of the 2002 Act, notwithstanding that they were not habitually resident in England. 

Second, Dundee City Council, acting as the implementation authority specified by the Children's Hearing and pursuant to its duty under section 144(1) of the 2011 Act, had made the arrangements for the move of A and O from Scotland to the "specified place" in England. In doing this, Dundee City Council was acting as an adoption agency and was placing A and O with the applicants as their prospective adopters. Accordingly, the three requirements of section 42(2)(a) – "placed", "for adoption", "by an adoption agency" – were satisfied. The case therefore fell within section 42(2)(a) of the 2002 Act and had been properly made.

Third, A and O's parents were each a "parent who has parental responsibility" within the meaning of the rules at FPR 14.3 and Dundee City Council constituted an "adoption agency which has taken part … in the arrangements for adoption of the child[ren]" within the meaning of the rule.

The role for the (English) Family Court was therefore (a) to decide whether adoption is in the best interests of A and O, judged by the test in section 1(2) of the 2002 Act of "the child's welfare, throughout his life", having regard to the various provisions in the 'welfare checklist' in section 1(4) of the 2002 Act, and applying the relevant casement (e.g. In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33) to decide whether the welfare of A and O "requires" their parents' consent to be dispensed with in accordance with section 52(1)(b). That in turn would require the court to consider the claims that "[a]ll aspects of [the mother's] life appear to be improving dramatically" and that the father "seems to be turning his life around."

Fourth, the court heard argument as to whether there should be a stay pending a fresh application being issued in Scotland, on the basis of forum non conveniens (as it often will where the majority of the relevant professionals and lay clients live and work in Scotland and a case is proceeding in England). It was argued that it should do so because the (English) Family Court is obliged to consider all alternatives to adoption, which it would not be able to do if the children were not habitually resident in England. Munby P rejected this, noting that it is only obliged to consider alternatives available for these children, and that jurisdiction could be founded on presence under 2(3)(b)(ii) Family Law act 1986. Next, it was argued that a Children's Hearing in Scotland continued to have jurisdiction over A and O; but the reality of what such a hearing would entail, it was discovered, meant that there was no advantage to be had in reinstating those proceedings. Third, the parents' counsel relied on the principles of forum non conveniens as set out in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. Focussing on each of the elements of connecting facts, of convenience for the parties and in respect of delay, Munby P expressed the view that the most real issue was inconvenience to the parents of attending a hearing far away from their homes. Munby P gave a very strong indication that Dundee City Council should pay for the parents' travel and accommodation for attendance at any final hearing in England, which it agreed to do.

Munby P therefore refused a stay. The matter was remitted to the Family Court with a direction to hear and determine the adoption application forthwith, and Munby P made directions, to be agreed, to get the matter trial-ready.

Fifth, and finally, Munby P recommended that where an adoption application is made to an English court relying upon a Scottish order, whether, as here, a compulsory supervision order or, as in Re A, a permanence order with authority to adopt, the papers should be referred to the Designated Family Judge at the outset with a view to making an order joining the Scottish local authority before the first directions hearing.

Summary by Marlene Cayoun,  barrister, 1 Garden Court Family Law Chambers
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Neutral Citation Number: [2017] EWHC 1293 (Fam)
Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26 May 2017

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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In the matter of A and O (Children)

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Mr Jonathan Buchan (instructed by Marsden Rawsthorn) for the applicants (prospective adopters of A and O)
Ms Lorraine Cavanagh (instructed by Farleys) for A and O's parents
Mr Alan Inglis of the English Bar and Scottish Bar (instructed by local authority solicitors) for Dundee City Council
Mr Christopher Blackburn (of John Whittle Robinson) for A and O's guardian

Hearing date: 3 May 2017
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Judgment Approved

This judgment was handed down in open court

Sir James Munby, President of the Family Division :
1. In Re A and others [2017] EWHC 35 (Fam) I was concerned with a number of cases in which applicants living in England were seeking from the (English) Family Court an adoption order pursuant to the Adoption and Children Act 2002 in relation to a Scottish child who had been placed with them by a Scottish local authority following the making by a (Scottish) Sheriff Court of a permanence order with authority to adopt under sections 80 and 83 of the Adoption and Children (Scotland) Act 2007. In each case, the application was being made in accordance with section 47(6)(a) of the 2002 Act: see Re A, para 4.

2. In the present case I am concerned with a case in which the applicants, as I shall refer to them, live in England and are seeking from the (English) Family Court an adoption order pursuant to the Adoption and Children Act 2002 in relation to two Scottish children, A and O, placed with them by a Scottish local authority, Dundee City Council, following the making by a (Scottish) Children's Hearing of a compulsory supervision order under section 83 of the Children's Hearings (Scotland) Act 2011. It is, correctly, common ground that the application is being made in accordance with section 47(2) of the 2002 Act: section 47(4) cannot apply because there is neither parental consent nor (English) placement order; section 47(6) cannot apply because there is no (Scottish) permanence order.

3. There is a most useful description of the two different types of Scottish order in Mostyn J's judgment in Re Z (Adoption: Scottish Child Placed in England: Convention Compliance) [2012] EWHC 2404 (Fam), [2013] 1 FLR 618. It should be noted that, although the 2011 Act had been enacted by the time Mostyn J gave judgment, it was not yet in force: see Re Z, para 10. The equivalent legislation was then to be found in the relevant parts of the Children (Scotland) Act 1995.

4. Information provided by local authorities in Scotland in response to requests for information under the Freedom of Information (Scotland) Act 2002 indicates that these are not isolated cases. Many local authorities in Scotland, and as far north as Aberdeen, have placed children in England in recent years, in all some 52, some 33 with plans for adoption. Some 24 of these children were subject to permanence orders; some 10 to compulsory supervision orders. 

The Scottish legislation
5. Before proceeding any further, it is necessary to recall that, in contrast with the English concept of "parental responsibility", as defined in section 3 of the Children Act 1989, the Scottish concepts are of "parental responsibilities" and "parental rights", as defined in sections 1 and 2 of the 1995 Act: see Re A, paras 11-16. I have previously explained how, for the purposes of the 2002 Act, one reads across from the Scottish to the English legislation: see Re A, paras 55-61.

6. A child may be brought before a Children's Hearing if any one of the grounds set out in section 67 of the 2011 Act (see previously section 52 of the 1995 Act) is established. Section 83 of the 2011 Act (see previously section 70 of the 1995 Act) provides as follows:

"(1) In this Act, "compulsory supervision order", in relation to a child, means an order –

(a) including any of the measures mentioned in subsection (2),

(b) specifying a local authority which is to be responsible for giving effect to the measures included in the order (the "implementation authority"), and

(c) having effect for the relevant period.

(2) The measures are –

(a) a requirement that the child reside at a specified place,
…"

I need not set out the other "measures" specified in section 83(2). The "specified place" need not be in Scotland; it can be in England. And, as Mr Inglis points out, there is nothing in English law prohibiting the placement of Scottish children with carers in England. It follows, he says, and I agree, that the legality of such a placement is therefore governed by Scots law. 

7. Section 144, so far as material for present purposes, provides that:

"(1) The implementation authority must give effect to a compulsory supervision order.

(2) The implementation authority must in particular comply with any requirements imposed on it in relation to the child by the compulsory supervision order."

I need not go into the details, but sections 146-147 provide mechanisms for enforcement if the implementation authority fails to comply with its duties under section 144, including application to the relevant sheriff principal for an order to enforce the implementation authority's duty. 

8. It is important to appreciate, as Mr Inglis on behalf of Dundee City Council pointed out, that the local authority is not a party to the proceedings at a Children's Hearing.

9. It is also important to appreciate that none of the "measures" specified in section 83, affects the existence of either "parental responsibilities" or "parental rights", whether by restricting the responsibilities or rights of the parent (other than to the extent of any measure under section 83(2)) or by conferring them on the "implementation authority" or, indeed, on anyone else. In this connection, Mr Inglis helpfully referred me to the judgment of the Lord President (Emslie) in Aitken v Aitken 1978 SC 297, 302:

"The making of a supervision requirement does not deprive parents, or a person to whom custody of a child has been awarded, of their rights in relation to the child. It is properly to be regarded as just another of those lawful orders which may temporarily prevent the exercise of those rights."

10. Thus, no "parental responsibilities" or "parental rights" in relation to A and O are vested in Dundee City Council; conversely, their parents retain their "parental responsibilities" and "parental rights". Accordingly, for the purposes of the 2002 Act and FPR 14.3, Dundee City Council does not have "parental responsibility" for A and O; conversely, their parents do. They are, therefore, "parents" within the meaning of section 52(6) of the 2002 Act for the purposes of section 52(1), just as they are, for the purposes of FPR 14.3, parents who have parental responsibility. This position in relation to a case where a Children's Hearing has made a compulsory supervision order under section 83 of the 2011 Act thus stands in stark contrast to the position in relation to a case where the Sheriff Court has made a permanence order under section 80 of the 2007 Act: compare the analysis in Re A, paras 48, 55-60, 70. 

11. Finally, it is important to note that a measure under section 83(2)(a) requires only that the child "reside at [the] specified place." It contains no limitations on the exercise by a (Scottish) local authority of any powers it may have in relation to the child, or in relation to the circumstances in which, or the legal arrangements subject to which, the child is to "reside" at the specified place. In particular, and this was not challenged by Ms Cavanagh on behalf of the parents, a compulsory supervision order requiring a child to reside at a specified place, does not prevent a (Scottish) local authority which is an adoption agency from exercising its powers under the 2007 Act and the Adoption Agencies (Scotland) Regulations 2009, 2009/154, by, for example, placing the child at that place with prospective adopters (as to which see regulations 13-20).

12. Linkage between the two agencies, the Children's Hearing and the adoption agency, is provided for by sections 131(1) and 132(2)(d) of the 2011 Act which, as supplemented by the provisions of regulation 22, require that the implementation authority:

"must, by notice to the Principal Reporter, require a review of a compulsory supervision order in relation to a child where the authority is satisfied that … the best interests of the child would be served by the authority placing the child for adoption and the authority intends to place the child for adoption."

13. So far as material, regulation 23, on which Ms Cavanagh places especial reliance, provides as follows:

"(1)  This regulation applies where an adoption agency which is a local authority, following a decision under regulation 13(1), is considering making arrangements for adoption in respect of a child who is subject to a supervision requirement.

(2)  Where the adoption agency has made a determination to proceed as though parental consent is not forthcoming in accordance with regulation 20 the adoption agency must notify the Principal Reporter of its determination within 7 days from the date it made that determination.

(3)  Where – 

(a) paragraph (2) applies; and

(b) the adoption agency receives a report from a children's hearing under section 73(13) of the 1995 Act which provides advice in support of the decision of the adoption agency made under regulation 13(1) in relation to the child,
the adoption agency must, within a period of 28 days from the date it receives the report from the children's hearing, make an application for a permanence order …"

I shall return to consider the significance of this below.

The facts
14. I am concerned with two siblings, both born in Scotland to Scottish parents: A born in 2012 and O born in 2013. Although there had been previous involvement of the local authority, for present purposes I can pick up the history on 6 March 2014, when Dundee City Council's adoption and permanence panel held meetings in relation to A and then O. In each case the panel unanimously recommended that:

"A [O] is a child in need of permanent substitute care achieved by adoption via an application for a Permanence Order with authority to adopt. A [O] should be placed with … O [A]."

Those recommendations were approved by the agency decision maker on 17 March 2014.

15. On 5 June 2015, Dundee City Council's adoption and permanence panel held further meetings in relation to A and O. In each case the panel was unanimous in its recommendation "to match A [O] with [the applicants]." In each case the approved minute contained this passage:

"Legal situation
The Permanence Order has not been lodged yet. The plan would be that [A and O] are placed with Prospective adopters through the Hearing system. [Name] had a discussion with the Legal Department and the legal route may be a direct petition by the adopters. It is hoped they can place [A and O] through the Children's Hearing system and through direct petition in England. [Name] acknowledged this was a different legal process than in England."

Those recommendations were approved by the agency decision maker on 18 June 2015.

16. In an internal memorandum dated 18 June 2015, Dundee City Council's review officer noted that:

"The Permanence Order (PO) is almost complete but has been placed on hold at this time due to the potential match. This is due to the fact that the potential Adopters reside in England and if [A and O] were to be matched with them then a straight adoption would be sought, given the differences in legislation, and a PO would not be required.

… Straight adoption to be sought after 13 weeks in adoptive placement."

17. On 23 June 2015, the Children's Hearing in relation to A continued and varied a previous compulsory supervision order dated 27 October 2014. The order was to have effect until 23 June 2016. The implementation authority was stated to be Dundee City Council. The order provided that "A shall reside with [the applicants] [address in England]." A was to have supervised contact with mother but no contact with father. The next day, 24 June 2015, the Children's Hearing in relation to O continued and varied a previous compulsory supervision order dated 26 May 2014. The order was to have effect until 23 June 2016. The implementation authority was stated to be Dundee City Council. The order provided that "O shall reside with [the applicants] [address in England]." O was to have no contact with either parent.    

18. Dundee City Council completed the BAAF Form H2, 'Inter-agency Placement Agreement: Practice Arrangements', on 6 July 2015. This made explicit that "The plan for this placement is Adoption."

19. A and O moved into the full time care of the applicants in England on 13 July 2015.

20. The compulsory supervision orders made in June 2015 were on 10 May 2016 extended in materially the same terms until 9 May 2017 (except that O was now to have supervised contact with mother), and on 10 April 2017 again extended in materially the same terms until 9 April 2018 (except that, in addition to ongoing supervised contact with mother, both A and O were now to have supervised contact with father). The orders made on the latter occasion each recorded that "All aspects of [the mother's] life appear to be improving dramatically" and that the father "seems to be turning his life around." None of these orders, it is to be noted, have ever been appealed by either mother or father.

21. In the meantime, the very detailed adoption reports for A and for O had been prepared by SW, a social worker with Dundee City Council, each dated 15 June 2016.

The litigation in England
22. On 25 October 2016, the applicants issued applications for adoption orders in the Family Court at Blackburn, supported by an undated statement of facts prepared by their solicitor. Each application asserted (Part 2(f), (g)) that the child had been placed with the applicants "for the purposes of adoption by an adoption agency", identified as Dundee City Council. Part 2(i), dealing with notification to "our local authority" (see section 44 of the 2002 Act), was completed "Not applicable". In Part 2(k) it was said – erroneously – that Dundee City Council has parental responsibility for the child. In Part 3(l) the applicants asked the court to dispense with the parents' consent on the ground that the welfare of the child requires it.

23. The applications have been before Her Honour Judge Singleton QC on five occasions, mainly in Preston: 22 November 2016, 11 January 2017, 27 February 2017, 1 March 2017 and 21 April 2017.

24. The order made on 11 January 2017 recited that:

"The court considers that the parents may well be seriously disadvantaged in this matter if they are not legally represented by reason of the legal complexity of the issues in the case, including:-

• The lawfulness of the placement of the Scottish children subject to a Scottish Compulsory Supervision order with English foster carers/prospective adopters in England, and;

• Whether the application to adopt should have been made in Scotland, and;

• The interplay between the two jurisdictions in these matters."

The order directed the children be joined as parties "on the basis of legal complexity." The applicants were directed to file a statement from SW by 8 February 2017 "setting out a history of the Scottish proceedings, the planning for permanence and the placement of the children with the applicants." Amongst other matters, directions were given for an advocates' meeting to consider

"a  Whether the placement with the applicants was lawful?

b  If the placement was lawful, does the English or Scottish court have jurisdiction for the children?

c  Should the application be made in England or Scotland?"

25. On 2 February 2017, Dundee City Council wrote to the applicants' solicitors explaining its analysis of the legal position. Having set out section 118 of the 2007 Act, 1 the letter continued:

"As [A and O] are no longer in Scotland the option to raise proceedings either for adoption orders or permanence orders with authority for adoption in the local sheriff court in Dundee has been lost. [The applicants] potentially might raise proceedings for adoption in the Court of Session in Edinburgh.  That might provide a more convenient forum for [A and O]'s parents, but would still require them to travel. It would not be convenient for [the applicants] or convenient for the officers of that court who would be required to visit [A and O] in placement in England. Dundee City Council could apply for permanence orders with authority for adoption in the Court of Session but that would again not be particularly convenient for any party and would still require [the applicants] to raise proceedings for adoption in due course. Such a course would lead to considerable delay. 

… It seems to me that the Family Court in Preston is undoubtedly the court best placed to assess whether [the applicants] are appropriate adoptive carers for [A and O], which after all is the principal question in any adoption case. There are at present no orders dispensing with [A and O]'s parents' consent, but my understanding is that that court itself possesses powers to dispense with their consent should that be necessary."

26. In a further letter dated 17 February 2017, Dundee City Council said this:

"While Edinburgh is within commuting distance of Dundee, in order to get to Edinburgh in time to attend court, [A and O]'s parents would require to rise at a fairly early hour in the morning, especially if they were to be travelling by public transport as I suspect they would be. They would probably be better advised to acquire hotel accommodation. Once you factor a requirement for hotel accommodation into the equation, Edinburgh is probably not that much more convenient for the parents than Preston.

The Council's usual practice would be to raise proceedings for permanence orders with authority for adoption in the local sheriff court where we would use our own solicitors (such as myself). In order to raise an action in the Court of Session we would require to instruct a firm of solicitors to act as Edinburgh agents as well as an advocate to appear for us in court. The court would require to instruct another advocate to act as curator ad litem for [A and O] who would have to visit [them] in placement with your clients. The experience of other councils with regard to litigation in the Court of Session is, I believe, that it is both long-drawn out and expensive even in childcare cases like these which have a measure or priority. If permanence orders with authority for adoption were to be sought in the Court of Session, especially if it is true that [the father] has made progress in his personal life, much of the Council's case is likely to revolve around the progress [A and O] have made in your clients' care and around questions of future contact. In the circumstances there I would regard at least one of your clients as being an essential witness in any proceedings raised in the Court of Session. Besides, conventional wisdom has it that questions of adoption as open as these ones appear potentially to be are best resolved in direct adoption proceedings where the judge can deal directly with the issues from all angles rather than in permanence order with authority for adoption proceedings where at best he or she can make a provisional order regarding contact which may again come under challenge in the ensuing adoption proceedings. Effectively if permanence orders with authority for adoption are applied for in these cases two battles may have to be fought instead of one, and your clients may find themselves directly in the firing line in each."

27. In the meantime, and in accordance with the directions in the order of 11 January 2017, the mother made a witness statement dated 7 February 2017, the father made a witness statement dated 7 February 2017, and SW made a witness statement dated 8 February 2017.

28. On 27 February 2017, Judge Singleton joined Dundee City Council as a party and made directions for the disclosure by Dundee City Council of various papers and for the service by 17 March 2017 of a statement from Dundee City Council's Director of Children's and Families Service dealing with various specified issues. Dundee City Council was given permission to apply on 48 hours' notice. Judge Singleton transferred the case to the Family Division and directed that it was to be listed before me for a directions hearing in London on 3 May 2017.

29. Dundee City Counci1 responded to that order by an email dated 1 March 2017 which, by an order she made the same day, Judge Singleton treated as an application to set aside parts of the order made on 27 February 2017. She directed the application to be listed before her, at Preston, at 10am on 21 April 2017.

30. By an order dated 21 April 2017 Judge Singleton varied the directions contained in her earlier order of 27 February 2017. Her order recited that "disclosure of the papers from the proceedings in Scotland is necessary to allow the Court in this jurisdiction to properly and fairly consider the issues before it" as well as Dundee City Council's confirmation that it has no attendance notes of the Children's Hearing. Dundee City Council was directed to "use their best endeavours to be in a position to either disclose the material from the proceedings before the Children's Hearing and any proceedings before the Sheriff or provide an update on the date by which a decision for disclosure will be made" and to apply by 28 April 2017 "to the Principal Reporter to the Children's Hearing and the Sheriff Court for copies of and permission to disclose all papers in respect of proceedings before either body in relation to these children and that Dundee City Council shall disclose to the parties such papers on the receipt of permission for disclosure."

The hearing on 3 May 2017
31. In accordance with Judge Singleton's orders, the matter came on before me for directions on 3 May 2017. The applicants were represented by Mr Jonathan Buchan, A and O's parents by Ms Lorraine Cavanagh, Dundee City Council by Mr Alan Inglis, who is both an English barrister and a Scottish advocate, and A and O's guardian by Mr Christopher Blackburn.

32. Mr Inglis submits that the relevant Scottish statutory provisions are unambiguous in meaning and effect and do not require expert interpretation. I agree. Expert evidence in relation to Scots law is not necessary to enable me to deal with the matter fairly and justly; on the contrary, obtaining such evidence will only delay matters. It is true that I do not have all the documents referred to in paragraph 30 above, but I am entirely satisfied that I do have all the material that I need to decide the issues before me.

The law
33. I can clear the ground by dealing first with various matters which, in my judgment, do not admit of sensible argument and which, by the date of the hearing before me, were largely common ground.

34. I deal first with the jurisdiction of the English court, whether the Family Court or the Family Division, to entertain an application for an adoption order. There is no doubt that the applicants satisfy the requirements of sections 49-50 of the 2002 Act. The point arises only because there is, or may be, an issue as to whether A and O are habitually resident in Scotland or in England. In my judgment, it is quite clear that the jurisdiction of the English court to entertain an application for an adoption order is not dependent upon the child being habitually resident in England. As was said in the Court of Appeal in In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2017] AC 167, paras 76-77 (not affected on this point by the decision of the Supreme Court in In re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15, [2017] AC 167):

"76  … it is clear from section 49 of the 2002 Act that the fundamental foundation of the jurisdiction of the court to entertain the application for an adoption order at all is determined by the circumstances, crucially for present purposes the domicile or habitual residence, of the adoptive parent(s) and no one else. Moreover, and assuming that the jurisdictional requirements of section 49 are met, the 2002 Act contains no limitation, whether by reference to nationality, domicile or habitual residence, upon the children who can be adopted … pursuant to the 2002 Act.

77  In other words, if the sole basis of the court's jurisdiction is by reference to the domicile or habitual residence of the adoptive parent(s), it must follow that it has jurisdiction to make an adoption order in relation to a child irrespective of the child's nationality, domicile or habitual residence …"

35. The second point relates to the power of the English court, if it has jurisdiction to entertain the application for an adoption, to dispense with the consent of a 'foreign' parent. For this it suffices to refer to In re N, para 92:

"… the English court has jurisdiction to dispense with the consent of the natural parent(s) and to make an adoption order irrespective of the nationality, domicile, habitual residence or presence within the jurisdiction of the natural parent(s) and … when exercising that jurisdiction the court will apply English law, that is, decide the issue by reference to section 52(1) of the 2002 Act."

36. Sections 42-45 of the 2002 Act deal with what are referred to as "Preliminaries to adoption". I start with section 42 which, so far as material for present purposes, provides as follows:

"(1) An application for an adoption order may not be made unless –

(a) if subsection (2) applies, the condition in that subsection is met,

(b) if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.

(2) If –

(a) the child was placed for adoption with the applicant or applicants by an adoption agency …

the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.

(4) If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.

(6) But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.

(7) An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given –

(a) where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,

(b) in any other case, to the local authority within whose area the home is.

(8) In this section and sections 43 and 44(1) –

(a) references to an adoption agency include a Scottish or Northern Irish adoption agency,

(b) references to a child placed for adoption by an adoption agency are to be read accordingly."

So, a Scottish local authority which, as in the case of Dundee City Council, is an adoption agency for the purposes of the relevant Scottish legislation, is also an adoption agency for the purposes of sections 42 and 43 of the 2002 Act, as also, I should add, for the purposes of FPR 14.3: see Re A, paras 66-73.

37. Section 43 provides as follows:

"Where an application for an adoption order relates to a child placed for adoption by an adoption agency, the agency must – 

(a) submit to the court a report on the suitability of the applicants and on any other matters relevant to the operation of section 1, and

(b) assist the court in any manner the court directs."

The obligations under section 43 are amplified by FPR 14.11(1).

38. It may be useful to repeat what I said in Re A, paras 69, 72:

"69 … where the adoption agency is a Scottish local authority, that local authority, although located in Scotland and created by Scottish law, has, as a matter of English law, the obligations spelt out in section 43 and elaborated in FPR 14.11 …

72  … where the Scottish local authority has, as these Scottish local authorities have, "taken part … in the arrangements for adoption of the child," they are, for the specific purposes of the 2002 Act with which I am here concerned, an "adoption agency" and accordingly should be joined pursuant to FPR 14.3, are bound by section 43 and can be required to comply with the court's directions under section 43(b)."

39. Section 44, so far as material, provides as follows:

"(1) This section applies where persons (referred to in this section as "proposed adopters") wish to adopt a child who is not placed for adoption with them by an adoption agency.

(2) An adoption order may not be made in respect of the child unless the proposed adopters have given notice to the appropriate local authority of their intention to apply for the adoption order (referred to in this Act as a "notice of intention to adopt").

(3) The notice must be given not more than two years, or less than three months, before the date on which the application for the adoption order is made."

40. In the present case, as we have seen, the applicants have not given notice of intention to adopt in accordance with section 44. They assert that there was no need to, because, they say, A and O, were, within the meaning of section 42(2)(a), "placed for adoption with [them] by an adoption agency." Ms Cavanagh does not dispute that Dundee City Council is, within the meaning of section 42(8), an "adoption agency", but disputes that the condition in section 42(2)(a) is satisfied. She asserts, accordingly, that this is a case which falls within section 42(4), so that the requirement to give notice of intention to adopt in accordance with section 44 was triggered. I do not agree. In my judgment, the case falls within section 42(2)(a), with the consequence that there was no need for the applicants to give notice in accordance with section 44.

41. As a matter of historical fact, given the circumstances as I have outlined them above, two things are plain: (1) it was Dundee City Council, acting as the implementation authority specified by the Children's Hearing and pursuant to its duty under section 144(1) of the 2011 Act, which made the arrangements for the move of A and O from Scotland to the "specified place" in England; and (2) in doing this, Dundee City Council was (see paragraphs 14-16, 18, 21 above) acting as an adoption agency and was placing A and O with the applicants as their prospective adopters. Accordingly, on the face of it, each of the three requirements of section 42(2)(a) – "placed", "for adoption", "by an adoption agency" – was satisfied.

42. Ms Cavanagh does not dispute that, as a matter of generality, Dundee City Council was acting as an adoption agency. Her point is that, in acting as it did, Dundee City Council acted unlawfully, being in breach of what she submits was the mandatory requirement imposed by regulation 23(3) of the 2009 Regulations.

43. I do not agree with Ms Cavanagh's analysis. In the first place, there is nothing in any provision of Scottish law to which I have been taken 2 to indicate either that this breach, if breach it was, in any way invalidated what Dundee City Council did in June and July 2015, namely deciding to place and then actually placing A and O with the applicants for adoption; or, putting the same point slightly differently, that this breach, if breach it was, had the effect of preventing Dundee City Council doing what it did. Secondly, and whatever the effect of all this may have been as a matter of Scots law, as a matter of English law it would not, in my judgment, affect the proceedings in the English court or the operation of the relevant provisions of the 2002 Act. In In re A (Adoption: Placement outside Jurisdiction) [2004] EWCA Civ 515, [2005] Fam 105, a case under the Adoption Act 1976, the relevant placement was unlawful, indeed, by virtue of section 56 of the 1976 Act, a criminal offence, yet it was held by the Court of Appeal to be an effective placing for the purposes of section 20(1)(b) of the 1976 Act. So likewise, by analogy, here. Thirdly, the precise point arose before Mostyn J in Re Z (Adoption: Scottish Child Placed in England: Convention Compliance) [2012] EWHC 2404 (Fam), [2013] 1 FLR 618, a case on all fours with the present case, where (see para 18) there had been what he called a "technical breach" by the local authority of its obligation under regulation 23; but that was not treated as invalidating the placement or as any obstacle to the English court proceeding to make an adoption order in accordance with the 2002 Act. I respectfully agree with Mostyn J's approach.

44. In Re Z (Adoption: Scottish Child Placed in England: Convention Compliance) [2012] EWHC 2404 (Fam), [2013] 1 FLR 618, Mostyn J, with the benefit of expert evidence on Scots law and after a careful examination of the authorities, concluded that the procedures of a Children's Hearing are, in principle, fully Convention-compliant. I respectfully agree. Nothing has been identified which, in my judgment, even begins to suggest that anything which has happened in the present case, whether in relation to Dundee City Council or in relation to the Children's Hearing, has given rise to any breach of anyone's Convention rights or, more generally, to any unfairness, whether in process or in outcome. In any event, even if there has been, that is not a matter investigation of which is likely to assist the court in determining whether or not, in a case such as this, an adoption order should be made: see Re W (A Child) [2017] EWHC 829 (Fam), paras 86-90.

45. I go further. Mr Inglis submits that A and O have been placed with the applicants pursuant to a lawful order of the Children's Hearing, acting within the power conferred upon it by statute. I agree. He goes on to submit that it is no part of the functions of a court in England and Wales to conduct a review of the propriety of the conduct of a Scottish public authority – Dundee City Council – leading up to a lawful order which has not been appealed. Judicial review of Scottish bodies is, he says, restricted to the Court of Session. Ms Cavanagh's submissions, he contends, fail to distinguish between the role of the English court in determining an adoption application and the privative function of the Court of Session in its supervision of public bodies in Scotland. I am inclined to agree. Other considerations will, of course, arise where the English court is, by statute, given extra-territorial powers: see Re A, para 66. More narrowly, Mr Inglis goes on to make what in my judgment is an unassailable point. If the parents had any ground of objection to the orders of the Children's Hearing, their remedy, as provided by statute, was appeal to the Sheriff – a remedy which they have never sought to exercise.       

46. Pulling the threads together:

i) The Family Court has jurisdiction to hear this application for an adoption order pursuant to the 2002 Act irrespective of whether A and O are, or are not, habitually resident in England. Likewise, the Family Court has jurisdiction to dispense with the parents' consent in accordance with section 52(1)(b) of the 2002 Act, notwithstanding that they are not habitually resident in England. 

ii) The application is properly made in accordance with sections 42(2)(a) and 47(2) of the 2002 Act.

iii) A and O's parents and Dundee City Council are properly joined as respondents in accordance with FPR 14.3: each of the parents as a "parent who has parental responsibility" within the meaning of the rule and Dundee City Council as an "adoption agency which has taken part … in the arrangements for adoption of the child[ren]" within the meaning of the rule.

iv) The task for the Family Court will be (a) to decide whether adoption is in the best interests of A and O, judged by the test in section 1(2) of the 2002 Act of "the child's welfare, throughout his life", having regard to the various provisions in the 'welfare checklist' in section 1(4) of the 2002 Act, and applying the principles explained in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and in Re W (A Child) [2016] EWCA Civ 793, and (b) to decide whether the welfare of A and O "requires" their parents' consent to be dispensed with in accordance with section 52(1)(b), as that word was explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125: see Re W (A Child) [2017] EWHC 829 (Fam).

47. In the particular circumstances of this case, these tasks will require a close focus on and evaluation of what has been said (see paragraph 20 above) to the effect that "All aspects of [the mother's] life appear to be improving dramatically" and that the father "seems to be turning his life around."

48. In addition to all this, attention has properly been drawn to the statutory obligation of the court under section 1(6) of the 2002 Act to "consider the whole range of powers available to it in the child's case", whether under the 2002 Act or the 1989 Act, and to the requirement, spelt out in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563 and many subsequent cases, to consider all the realistic options before concluding that an adoption order be made.

49. A central issue before me is whether, even if the English court has jurisdiction, the proceedings here should be stayed, in accordance with the principle of forum non conveniens, on the basis that Scotland, and not England, is the forum conveniens.

50. There are three strands to this contention.

51. One is based on the fact that, as appears from the combined effect of sections 1(1)(a), 2(1) and 3(1) of the Family Law Act 1986, the Family Court and Family Division do not have jurisdiction to make a section 1(1)(a) order, that is, an order under section 8 of the 1989 Act, unless the child is habitually resident in England and Wales. Whether A and O are habitually resident in England is, as I have said, in issue. This, it is said, creates two problems, unless it has first been found that A and O are indeed habitually resident in England. First, Mr Buchan and Mr Blackburn question, and Ms Cavanagh disputes, the ability of the Family Court and Family Division properly to perform their functions in accordance with section 1(6) and In re B-S, indeed to meet the procedural standards mandated by Articles 6 and 8 of the Convention, if their powers are limited by the lack of any ability to make a section 1(1)(a) order. The argument is that, absent the ability to make a section 1(1)(a) order, the court's survey of what is possible or available is inappropriately constrained and narrowed. Secondly, and this is a separate point, how is the court to proceed if, having decided not to make an adoption order, it lacks the ability to make a section 1(1)(a) order giving effect to some alternative form of placement?

52. In my judgment, there is nothing in these points. Section 1(6) requires the court to have regard to such orders as are available in the circumstances of the particular case – cf the words "powers available to it in the child's case" – not to what might be a longer list of powers available in some other case. The In re B-S discipline requires the court to evaluate the various options available in fact 'on the ground', as it were – adoption, long-term fostering, kinship care, rehabilitation to parents, etc. The court is not merely selecting a particular legal option from a legal menu. In any event, the fundamental premise – that the court lacks power to make private law orders unless the child is habitually resident in England and Wales – is unsound. The (English) Family Division has jurisdiction to make a section 1(1)(d) order, that is, "an order made … in the exercise of the inherent jurisdiction of the High Court with respect to children … so far as it gives care of a child to any person or provides for contact with… a child", if (see section 2(3)(b)(ii) of the 1986 Act) "the child concerned is present in England and Wales on the relevant date [as defined in section 7(c)] and the court considers that the immediate exercise of its powers is necessary for his protection." So, any judge sitting in the Family Court who is either a judge of the High Court or authorised to sit as a judge of the High Court in accordance with section 9 of the Senior Courts Act 1981 (as Judge Singleton is) can, by making an order under the inherent jurisdiction, in essence achieve the same outcome as by making a section 1(1)(a) order. 3

53. I do not therefore accept the two propositions underlying this part of the case: that it is necessary to determine A and O's habitual residence at this stage because, unless they are habitually resident in England and Wales, the English court's only power will be to take a binary decision, whether to make or refuse to make an adoption order. In my judgment, the English court will not be hamstrung in undertaking the In re B-S exercise and there will be no question of proceedings in the Family Court being non-compliant with either Article 6 or Article 8.

54. I decline, therefore, to decide at this stage whether or not A and O are habitually resident in England. There is no need to do so. The matter is better left for decision if and when the need arises.

55. The second matter prayed in aid of the forum non conveniens argument is based on the fact that the Children's Hearing continues to have, and to exercise (as it did as recently as 10 April 2017), jurisdiction over A and O. So, it is said, the adoption proceedings are better tried in the Court of Session. The short answer to this contention, in my judgment, is the point made by Mr Inglis. Even if an adoption order was to be made by the Court of Session, the matter would still have to be returned to the Children's Hearing for the proceedings there to be brought formally to an end. So, there is, on the face of it, no advantage from this point of view to be gained from a trial in the Court of Session. And bearing in mind that the placement of A and O in England with a view to their adoption has been sanctioned by the Children's Hearing, there is no reason to believe that the Children's Hearing will be any less willing to make whatever consequential orders may be appropriate just because the adoption proceedings have been heard by the Family Court in England and not by the Court of Session in Scotland.  

56. The third, and more difficult, issue in relation to forum non conveniens concerns the application of the well-known principles in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92: see Re K (A Child) [2015] EWCA Civ 352, paras 27-29.

57. I bear in mind that an application for an adoption order under the 2002 Act is not within the class of cases referred to in section 5(2) of the 1986 Act, but I proceed on the basis that, as was explained in Re S (A Minor) (Stay of Proceedings) [1993] 2 FLR 912, 917, the court has an inherent power to stay proceedings, which is preserved by section 5(4). As Baker J said in Re YC, PC and KM [2013] EWHC 2336 (Fam), para 19, and I respectfully agree, "in an appropriate case, where an English court is satisfied that the issue arising in care proceedings can and should be litigated in another part of the UK, it has the power – as part of its general case management powers – to stay the proceedings."

58. The Spiliada principles, upon which Ms Cavanagh explicitly relies, can be summarised as follows by reference to the well-known passage in the speech of Lord Goff of Chieveley in the eponymous case, [1987] AC 460, 476-478:

"(a)  The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

(b)  … in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay … if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country …

(c)  The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established … the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum …

(d) … the court will look first to see what factors there are which point in the direction of another forum … the "natural forum" [is] "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.

(e)  If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay … 

(f)  If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions … on this inquiry, the burden of proof shifts to the plaintiff."

59. Ms Cavanagh submits that Scotland is clearly the more appropriate forum. I do not agree.

60. The applicants were entitled to issue the proceedings in England. They and the children are in England, though given the forensic realities in a case where the primary focus will be on the parents this is a factor of limited significance. The bulk of the professional evidence will be from persons living in Scotland, though Dundee City Council disavows any particular reliance upon this fact.

61. Two other factors point in favour of England and not Scotland being the more appropriate forum. One is that, if the present proceedings are stayed so that an application can be made in the Court of Session, there will, save only for Mr Inglis, be an unavoidable need to instruct new counsel and solicitors and to appoint a new guardian – something productive only of delay and undesirable discontinuity. The other is an important factor identified by Mr Inglis, namely that rule 67.14(a) of the Rules of the Court of Session provides that an adoption petition shall be "put on the By Order Roll before the Lord Ordinary not less than 6 and not more than 8 weeks" after the petition has been lodged, and rule 67.17(b)(ii) provides that at the hearing on the By Order Roll the court shall "fix a diet of proof [final hearing] not less than 12 and not more than 16 weeks after the date of the hearing on the By Order Roll unless, on cause shown, a longer period is appropriate." So, a minimum period of 18 weeks has to elapse after the petition has been lodged before there can be a final hearing. That further delay would be most undesirable, not least given the time which has already elapsed since these proceedings commenced.

62. In the particular circumstances of this case, far and away the strongest argument in relation to personal convenience / inconvenience derives from the fact that the parents live in the Dundee area.

63. In an adoption case where, as here, the court is being invited to dispense with their consent, it is inconceivable that obstacles be put in the way of parents who want, as these parents do, to be present in court throughout the final hearing. It is imperative in the interests of justice – not merely justice to them but also justice to A and O – that the parents be present throughout, not just while giving evidence, so that they are in the best possible position to see and hear what is going on and to give instructions to those representing them. I add that in a case such as this the imperative demands of justice and fairness, both in the general sense and as mandated by Articles 6 and 8 of the Convention, march in step with the equally pressing demands of humanity and common decency. That they should not be able to be there throughout, as they would wish, is, in my judgment quite unthinkable.

64. Data gathered by Ms Cavanagh, and not disputed by anyone, demonstrates that the road journey for the parents to Lancaster and back is 332 miles, the round trip by the cheapest bus lasting a little short of 11 hours and costing in all £90 for the two of them. The corresponding figures for Preston are 374 miles, a little over 11 hours and a cost of £66. They were unable to pay the cost of travelling to London for the hearing before me on 3 May 2017 – their savings having by then become too depleted – but with enormous dedication and commitment had managed, despite their limited resources, to travel by bus to the hearings before Judge Singleton, at Preston or Lancaster, on occasions travelling overnight to be at court by 9.30am. I am simply not prepared to contemplate such arrangements for a final hearing. Ms Cavanagh puts the point powerfully, if in understated language:

"Nothing in this information sets out the emotional and psychological burden placed upon the parents travelling those distances, sometimes overnight to be at court for 9.30am. This cost is at its highest on the days that they will give evidence as it has the potential to thwart them giving of their best through tiredness enhancing emotional anxiety. There is potential for this disadvantage to affect the justice of the cause and the outcome."

She adds:

"This is the most important application that they will ever face, the potential adoption of their [children]. Demonstrating their commitment to the court is in their mind an essential component of defending that application."

Precisely so.

65. In my judgment, the imperative demands of justice and fairness, and the equally pressing demands of humanity and common decency, require that the State, which, at the behest of one State agent – Dundee City Council – and through the actions of another – the Family Court – is being invited to dispense with the parents' consent to the making of adoption orders, must, if these proceedings are to remain in the Family Court, meet the parents' costs, not merely of travel to and from the court for the final hearing but also of their overnight accommodation near the court starting on the night before the final hearing commences and thereafter for the duration of the hearing. If and to the extent that these, in my judgment wholly necessary, costs will not be met by the Legal Aid Agency, which I assume is funding the parents' legal representation, then they must be met by Dundee City Council. In fact, I am told, Dundee City Council has, very properly, agreed to pay the parents' travel expenses for hearings dealing with welfare issues, including their accommodation costs as I have described them above.

66. On that footing, but only on that footing, I have come to the clear conclusion that I should refuse a stay. Applying Lord Goff's discipline, and assuming that the parents' travel and accommodation costs are met, I am not persuaded that Scotland is clearly or distinctly the more appropriate forum; on the contrary, and on that assumption, England, in my judgment, is in the circumstances I have described in paragraphs 60-61 above, the more convenient forum.

67. Mr Inglis submits, at the end of the day, that I should remit the case to the Family Court with a direction to hear and determine the adoption application forthwith. Any alternative order, he says, would breach both Article 6 and the injunction against delay in section 1(3) of the 2002 Act. The application, he points out, has been before the court for over six months without a final hearing being fixed or even provision for the filing of statements. I agree. I shall remit the matter to be heard by Judge Singleton, at either Preston or Lancaster, on the earliest available date. In the meantime, and to minimise any continuing delay, I shall give such further directions, to be agreed by the parties as soon as possible, as are appropriate to get the matter ready for trial.

68. There is one final matter. Mr Inglis complains that Dundee City Council was given no notice of the hearing on 27 February 2017, at which, as we have seen, orders were made against it. He suggests, for the future, that where an adoption application is made to an English court relying upon a Scottish order, whether, as here, a compulsory supervision order or, as in Re A, a permanence order with authority to adopt, the papers should be referred to the Designated Family Judge at the outset, with a view to making an order joining the Scottish local authority before the first directions hearing. That, if I may say so, seems a very sensible suggestion, which I commend to all practitioners and judges.

__________

1 Section 118(3) provides that "If – (a) the application is for … an adoption order … and (b) the child is not in Scotland when the application is made, the appropriate court is the Court of Session."

2 Mr Inglis tells me that, having conducted a review of Scottish law reports (SLT, SC and Fam LR), the Parliament House Book, which is the judges' reference book for Scots law, and various textbooks, he is unable to find any case-law or authority on the interpretation of regulation 23. So I have, as he puts it, only the regulation itself to go on.

3 The reciprocal recognition and enforcement provisions in sections 25-29 of the 1986 Act apply to any "Part I order", and thus apply to both section 1(1)(a) and section 1(1)(d) orders, though not to those orders made under the inherent jurisdiction which fall outside the narrow ambit of section 1(1))(d): contrast In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, para 57, followed by the Court of Session in Petitions by Cumbria County Council and others for the exercise of the nobile officium [2016] CSIH 92, 2017 SLT 34, 2017 Fam LR 15, para 17.