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Choices for Children in Fostering and Adoption

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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION

Chapter 6. Court Processes in Permanence, Including Grounds and Court Delays

(a) Principles applied in permanence proceedings

The principles referred to here also apply to local authority and adoption agency decisions, and should be part of all planning and decision making for children.

(i) Welfare of the child as paramount consideration

It is established law in the 1978 Act, as amended by the 1995 Act, and the 1995 Act itself, that the welfare of children is the paramount consideration or concern in legal proceedings and decisions about them:

  • s.11(7)(a) of the 1995 Act for court decisions in private law;
  • s.16(1) of the 1995 Act for children's hearing decisions and court decisions about hearing cases, emergency orders, PROs and other cases under Part II of the Act;
  • s.17(1) of the 1995 Act for local authority decisions about 'looked after' children, including planning decisions;
  • s.6(1)(a) of the 1978 Act for 'any decision' by courts and adoption agencies about the adoption of children (and also s.24(3) which reiterates the duty for courts).

In the 1978 Act, the test is stronger than in the 1995 Act, as courts and agencies are instructed to 'regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration'. This test was introduced by the 1995 Act amendments, with effect from 1 April 1997. Previously, the test had been that 'first consideration' be given 'to the need to safeguard and promote the welfare of the child throughout his childhood' (s.6 of the 1978 Act before amendment by the 1995 Act).

A question arises as to whether this test is the appropriate one in adoption court decisions. The U.N.C.R.C., in Article 3.1, says: 'In all actions concerning children' by courts and other bodies, 'the best interest of the child shall be a primary consideration.' Article 8 of the E.C.H.R. says: 'Everyone has the right to respect for his private and family life'. This right can be interfered with, provided the interference is by lawful process and for a purpose such as the protection of health or the rights and freedoms of others. The interference should be in proportion to the remedy sought. It is crucial to maintain a fair balance between the general public interest and protecting the human rights of individuals. Adoption or freeing is an extreme interference with birth parents' right to respect for their family life, as they lose all responsibilities and rights if such an order is granted. It is sometimes argued that putting the child's welfare as paramount does not allow proper weight to birth parents' Convention rights.

On the other hand, children also have rights under Article 8, and family life does not have to be with birth families if children's health and protection are not secure there. The 2002 Act introduces the test of welfare as paramount throughout life for children in adoption cases in England and Wales, s.1(2). The Act was certified as compatible with the E.C.H.R. when introduced as a Bill.

Further, there are protections for birth parents in adoption and freeing applications which are not agreed. The court cannot grant an order unless either agreement is given or is dispensed with; and if consent is to be dispensed with, the court must first be satisfied that there is sufficient evidence to do so. That test is an evidential one, whether there are enough facts to establish a ground on the balance of probabilities. The welfare of the child is not part of this evidential test, but only comes into play after the court has decided that the evidential test is satisfied. This process is covered in the heading below.

(ii) Children's views.

The 1978 and 1995 Acts set out that young people and children should be given the chance to say if they have a view about decisions being made; and should be given the chance to express their views. Any views expressed should be considered. Account should be taken of a child's age and maturity, and a child of twelve or over is presumed to have a view, which is not to say that a child under twelve does not or cannot have a view. They reflect well-established practice in child care.

These provisions are in:

  • s.11(7)(b) and (10) for court decisions in private law;
  • s.16(2) of the 1995 Act for children's hearing decisions and court decisions about hearing cases, emergency orders, PROs and other cases under Part II of the Act;
  • s.17(3)(a) and (4)(a) of the 1995 Act for local authority decisions about 'looked after' children, including planning decisions;
  • s.6(1)(b)(i) and (2) of the 1978 Act for 'any decision' by courts and adoption agencies about the adoption of children.

(iii) Consideration of race, religion, culture and language

The principle was introduced by the 1995 Act, including an amendment to the 1978 Act. The decision maker is obliged when making a decision to 'have regard so far as practicable' to the child's religious persuasion, racial origin and cultural and linguistic background. The principle is found in:

  • s.17(4)(c) of the 1995 Act for local authority decisions about 'looked after' children, including planning decisions;
  • s.6(1)(b)(ii) of the 1978 Act for 'any decision' by courts and adoption agencies about the adoption of children.

There are no statutory provisions for court decisions in private law cases or for children's hearing decisions and court decisions about hearing cases, emergency orders, PROs and other cases under Part II of the Act. However, there is judicial authority for using the principle and considering these matters in private law cases under s.11 of the 1995 Act: Osborne v Matthan 1997 S.L.T. 811. Consideration needs to be given to whether the existing provisions and case law are sufficient to ensure that these crucial matters are properly looked at in all decisions made for and about children. Issues that arise are whether the phrase 'have regard so far as practicable' should be altered and the duty strengthened; and whether statutory duties should be imposed on all courts and hearings making decisions about children. The 1976 Act, as amended and strengthened by the 2000 Act, provides that public authorities must have due regard to the need to promote race equality and these duties may be of assistance in promoting best practice in this area of work.

(iv)Minimum necessary intervention

This principle was introduced by the 1995 Act, including amendments to the 1978 Act. It is sometimes referred to as the 'no order' principle, but that is a misnomer, suggesting that orders should only be made as a last resort. In fact, the principle provides that a court or hearing can only make an order if it is better for the child that this is done, rather than not done. The principle is found in;

  • s.11(7)(a) for court decisions in private law;
  • s.16(3) of the 1995 Act for children's hearing decisions and court decisions about hearing cases, emergency orders, PROs and other cases under Part II of the Act;
  • s.6A of the 1978 Act for 'any arrangements for the adoption of a child' by adoption agencies.
  • s.24(3) of the 1978 Act for 'any decision' by courts about the adoption of children.

Courts and hearings use this principle to help ensure that orders are not made where they are not necessary, while allowing appropriate orders to be made when they are needed for children.

(b)Grounds for dispensing with the agreement of birth parents.

No adoption or freeing order can be granted without either agreement from the birth parents or formal court dispensation with that agreement. Many orders are granted with agreement, but where there is no consent, the court has to be asked to dispense with it. The existing grounds for dispensation are set out in s.16(2) of the 1978 Act, and are that the parent:

  • is not known, cannot be found or is incapable of agreeing;
  • is withholding agreement unreasonably;
  • has persistently failed, without reasonable cause, to carry out one or other of the parental responsibilities:
    • to safeguard the child's welfare or
    • to maintain contact;
  • has seriously ill-treated the child, who is not likely to return to live with the parent.

Where the court is asked to dispense with agreement, the decision-making process is set out in the leading case, Lothian Regional Council v A 1992 S.L.T. 818. The court looks first at whether or not there is enough evidence to establish one or more of the grounds for dispensing with agreement. That is a purely evidential decision, with the standard of proof being the balance of probabilities. Then, if the court finds that there is sufficient evidence, it must decide whether to dispense with the consent; and, if so, whether to grant the order. Both these decisions are made putting the child's welfare throughout life as the paramount consideration, in terms of s.6 of the 1978 Act.

The grounds in the English and Welsh legislation have traditionally been much the same as those in Scots law, but the court's decision-making process is different. The court looks first at whether welfare suggests that dispensation would be a good idea; and then whether there is enough evidence to dispense with the consent. The 2002 Act has taken this further, and in s.52 provides only two grounds for dispensing with consent:

  • that the parent or guardian cannot be found or is incapable of giving consent;
  • that the child's welfare requires the consent to be dispensed with.

A debate could be useful, about whether the existing Scottish grounds, and the courts' method of decision-making, continue best to serve the interests of children and birth parents. The new grounds in the 2002 Act do not fit with the Scottish courts' model of making decisions in these cases. However, there is scope for adding to the existing Scottish grounds. A possible additional ground is that a parent is physically or mentally unable to care for the child and that the inability is likely to continue for some time. This is one of the grounds used in New Zealand Law, in terms of s.8(1)(b) of the Adoption Act 1955. Such a ground could be used when a parent is legally capable, but otherwise allegedly unable to care adequately for the child, for whatever reason.

(c) Conditions in adoption.

Section 12(6) of the 1978 Act allows the court in an adoption to make any condition which it feels is appropriate. However, this is not used much, and in the case of

B v C 1996 S.L.T. 1370, 1996 S.C.L.R. 874, the court indicated that conditions should only be made in 'exceptional circumstances'.

There is no equivalent power in the 1978 Act to attach conditions to a freeing order. The court in West Lothian Council v M 2002 S.L.T. 1155 took the view that it is not possible to grant a contact condition in a freeing, although it did not consider the possibility of using s.11 of the 1995 Act. Section 11(2) says that 'The court may make such order under subsection (1) above as it thinks fit'.

It could be helpful if the law generally permitted appropriate conditions, including contact, in all permanence orders, including any pre-adoptive ones. See Chapter 2, Contact, for a more detailed discussion of contact.

(d)Enforcement of conditions in adoption.

In the above case, B v C, the court provided a mechanism for enforcing conditions in adoption orders. It would be helpful if this was set out in legislation and court rules. Such a mechanism could also be used if conditions are allowed in other types of permanence orders.

(e) Expediting cases and avoiding delays in court.

It is accepted that adoption and freeing cases frequently take an excessive amount of time in court, particularly (although not always) when they are disputed. The Department of Health's White Paper in 2000, Adoption: a new approach, said 'If cases are not managed well by the court there is delay and distress for children.' (pg. 52). This was followed by Adoption Proceedings - A New Approach (Court Service, 2001), Guidance designed 'to reduce delay and inefficiency in adoption court proceedings and to improve the service for everyone in adoption cases.' And in June 2003, the Department for Constitutional Affairs published the Protocol for Judicial Case Management in Public Law Children Act Cases to eliminate 'unnecessary delay' in public law cases under the 1989 Act.

In Scotland, great and increasing concern is expressed by all interested professionals about delays and the effect on children and birth families. Delay leads to uncertainty for children and sometimes the loss of a prospective placement. It does not usually benefit birth families, who may be buoyed up by the lack of a decision and believe that children will be returned to them, and then be even more distressed when this does not happen. There is a history of judicial pronouncements about the need to avoid delay, such as Lord Guest in A v B and C 1971 S.C. (H.L.) 129 at 144, and Lord President Hope in Lothian Regional Council v A 1992 S.L.T. 858 at 861-2.

Section 25A of the Adoption (Scotland) Act 1978, added by the 1995 Act, says that, in any disputed adoption or freeing, the court must draw up a timetable and give directions for keeping to the timetable 'with a view to determining the question without delay'. However, neither judicial dicta nor the introduction of this section has made much difference to practice in many courts. No consistent, uniform system of case management has been developed to expedite cases and minimise delays.

Implementation of the Human Rights Act 1998 raises the possibility of challenges under Article 6 of the Convention by any party, including the child, who alleges that the case is not being heard 'within a reasonable time'. And, of course, it goes without saying that delays are contrary to the interests of children, and all the other parties involved.

The following is a list of some suggestions for improvement. Many of these points overlap, and are not new: see, for example, McNeill, 3 rd. edition, pg. 38-40.

1. Recognition of the importance of avoiding delay by all groups and professionals involved in permanence court cases. In the 2000 White Paper mentioned above, it was said: 'The Government wants to build on best practice already available to minimise delays.' (pg. 53). The proposals included guidance for the courts on case management and consistency of practice, and this has now been published as indicated above.

2. Use of specialist sheriffs with an expertise and interest in family and adoption cases.

3. Training for judges on the whole range of child care, permanence and adoption practice.

4. Use of the administrative authority of the Sheriffs Principal, to oversee prompt handling of adoption cases. They have a statutory duty to secure the speedy and efficient disposal of court business. Binding procedures and guidance from them could include case management directions and times within which judgements should be issued. For example, Sheriff Principal I. D. Macphail, Sheriff Principal of Lothian and Borders, has drafted a Practice Note for freeing, adoption and PRO cases, as Guidance for Sheriffs and Practitioners. This is reproduced in Appendix III.

5. Consideration of methods of judicial case management.

6. Specific timetables in the court rules, giving times within which each stage should occur. There would have to be a general excusing power for when a stage could not be adhered to (e.g. illness). Two existing proposed schemes are to be found in:

  • BAAF's Response to the Consultation Paper issued by the Sheriff Court Rules Council on sheriff court procedures for adoption (1996);
  • Sheriff Alastair Stewart's article on timetables in Green's Family Law Bulletin, July 1999, Issue 40, pg. 2.

Copies of these schemes are in Appendix III.

7. Greater awareness of all the legal aid options, including emergency and fast track applications, and specialist assessment of applications by the Scottish Legal Aid Board.

8. A recognition from and use by the courts dealing with these cases of the fact that the proceedings in adoption and freeing are sui generis (literally, of their own kind) (see Lord President Cooper in J and J v C's Tutor 1948 S.C. 636 at pg. 642). Courts may therefore dictate the procedure for the running of cases and proof hearings to a greater extent than is possible in Ordinary cases. As indicated in T, Petitioner 1997 S.L.T. 724 at 730L, the strict rules of evidence do not apply.

9. Consideration of the use of written court pleadings to focus issues, including what can be agreed. It would be better if these were informal, without the need to adhere to the strict rules of civil pleadings. They could assist parties and the court in deciding the real areas of dispute. In this way, it should be possible to avoid leading unnecessary evidence and wasting witnesses' time.

10. Early 'welfare' hearings (as in other sheriff court family law cases) to:

  • facilitate timetabling;
  • allow the sheriff to check on parties' preparations;
  • encourage agreement between the parties on non-contentious matters.

11. Use of affidavits to provide the courts with undisputed evidence, including from witnesses who may also have contentious evidence led in court.

12. Use of mediation services to assist resolution of disputes. Mediation services are increasing used to achieve settlement in a wide range of disputes, from commercial cases to matrimonial matters to applications regarding children with special educational needs. Such services could provide an alternative option for dispute resolution.

13. Reducing the unnecessary use of expert witnesses by the

  • promotion of joint instruction of experts by both/all parties in proceedings;
  • early sharing of reports by parties;
  • pre-proof agreement on non-contentious matters.

14. Use of Joint Minutes for agreed facts, to reduce unnecessary evidence.

15. Mandatory use of the procedure set out in F v F 1991 S.L.T., so that any application for parental responsibilities is dealt with by the same court as is hearing the permanence application. ( See Chapter 13, Birth Families, pg. 78 for further reference to F v F; and pg. 79 for reference to McCreight v City of Edinburgh Council and Another 2003 FamL.R. 2, where there were two applications, for freeing and contact.).

16. Continuous proof hearings on consecutive days, once a case has started; and no non-essential adjournments. This was suggested by Lord President Hope in Lothian Regional Council v A above.

QUESTIONS:

10. Should the welfare test in adoption cases stay the same?

11. Do the provisions about children's views need changing, and if so, how?

12. Do the provisions about consideration of race, religion, culture and language need changing, and if so, how?

13. Do the provisions about minimum necessary intervention need changing, and if so, how?

14. Should the grounds for dispensing with agreement be changed?

15. Should there be a ground based on a birth parent's inability to care?

16. Should conditions be allowed in all adoption and pre-adoption orders?

17. If so, should the test for contact conditions be 'exceptional circumstances' or something else?

18. Should there be a statutory mechanism for enforcement of conditions?

19. What are views on the suggestions about reducing delay and what are other options?

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Page updated: Tuesday, March 21, 2006