Z (Adoption: Scottish Child Placed in England: Convention Compliance), Re

Consent to adoption may be dispensed with only where the child’s welfare requires it. The test is imperative: adoption must be demanded by the child’s welfare, rather than merely being reasonable or desirable. A measure short of adoption cannot suffice if it would fail to meet the child’s welfare needs in both the short and long term.

A Scottish Children’s Hearing is a statutory, quasi-judicial body. Its informality and absence of oral evidence or cross-examination do not, without more, make its process incompatible with Articles 6 or 8 of the Convention. The relevant safeguards include the establishment of threshold grounds, appeal to the Sheriff and periodic review of supervision requirements.

The Applicant sought an adoption order for Z, a six-year-old child born in Scotland and placed with the Applicant in England following decisions of the Glasgow Children’s Hearing. Z had been removed from her mother’s care as an infant and had subsequently lived with foster carers before the placement.

The mother and father opposed adoption. They principally argued that the Scottish process leading to Z’s placement was unlawful and breached their rights under Articles 6 and 8 of the Convention. The mother also challenged the suitability of the Applicant’s care. The Lord Advocate intervened to explain and defend the Scottish system.

The issues were whether the Scottish process was Convention-compliant and whether Z’s welfare required the parents’ consent to be dispensed with.

1. The application for adoption was granted. The court directed that Z’s name be entered on the Adopted Children Register.

2. Under section 52(1)(b) of the Adoption and Children Act 2002, parental consent could be dispensed with only if Z’s welfare required it. Applying Re P (Placement orders: Parental Consent) [2008] 2 FLR 652, “requires” had an imperative connotation. If a measure short of adoption would meet the child’s welfare needs in the short and long term, adoption could not be said to be required.

3. On the facts, M and F were biological strangers to Z, with no psychological or emotional connection. A had provided Z’s care and had become her true parent in every relevant non-biological sense. Z required permanence and normality. Those needs could only be achieved by adoption in this case.

4. The challenge to the Scottish process was rejected. The Children’s Hearing was a statutory and quasi-judicial body, despite its informal procedure. Its decisions could be far-reaching, but threshold grounds had to be established before the Sheriff, decisions were appealable under section 51 of the Children (Scotland) Act 1995, and supervision requirements were subject to review. The court was satisfied that M’s Convention rights had been observed by the Scottish judicial and other state authorities.

5. The court rejected the allegation that A had mistreated Z. The conduct relied upon amounted to normal discipline. Adoption was overwhelmingly in Z’s best interests.