ANS and another v ML (Scotland)

A court may dispense with parental consent to adoption under section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 only where the child’s lifetime welfare creates an overriding requirement for adoption. The court must be satisfied that the interference with family life is necessary and proportionate, and that nothing less than adoption will suffice.

The statutory requirement is sufficiently certain when read in its legislative and human-rights context. The statement that family ties may be severed only in very exceptional circumstances describes the rarity of a Convention-compliant outcome; it is not an additional legal test.

The mother opposed the adoption of her child and withheld consent. During the adoption proceedings, the sheriff referred to the Inner House a devolution issue concerning whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 was compatible with article 8 of the European Convention on Human Rights.

The Inner House held that the provision was Convention-compliant and within the Scottish Parliament’s legislative competence: [2012] CSIH 38, 2012 SC 8. The mother appealed. She maintained that the provision lacked precision and permitted permanent severance of the parent-child relationship on an insufficiently demanding welfare assessment. The central question was whether section 31(3)(d), properly construed, satisfied article 8’s requirements of legality, necessity and proportionality.

1. Appeal dismissed unanimously. Lord Reed delivered the principal judgment, with which Lady Hale and Lord Wilson agreed. Lord Hope agreed with Lord Reed’s reasons. Lord Carnwath, with whom Lord Wilson agreed, added observations on the use of Strasbourg judgments.

2. Ordinary statutory interpretation comes first. The special interpretative duty in section 3 of the Human Rights Act 1998 arises only if the legislation’s ordinary construction would produce incompatibility with Convention rights. For Convention compatibility of an Act of the Scottish Parliament, section 3 is the relevant remedial provision rather than section 101 of the Scotland Act 1998.

3. Section 31 begins from the default rule that adoption requires parental consent. Section 31(3)(d) is a residual safety-net provision of comparatively limited scope, operating where sections 31(4) and 31(5) do not apply.

4. The word “requires” in section 31(3)(d) imposes a high test. There must be an overriding requirement, for the sake of the child’s welfare throughout life, that the adoption proceed. The court must establish necessity and proportionality and be satisfied that nothing less than adoption will suffice. A less drastic measure which secures the child’s welfare precludes dispensing with consent on this ground.

5. The court must treat the child’s lifetime welfare as paramount under section 14(3), consider all the circumstances under section 14(2), and have particular regard to the matters in section 14(4). These include the child’s views, age and maturity, the value of a stable family unit, the child’s background and the likely lifelong effect of adoption. The statutory scheme therefore reflects the factors inherent in an article 8 assessment.

6. The Strasbourg observation that family ties may be severed only in very exceptional circumstances describes how rarely compulsory severance can satisfy article 8. It does not create a separate legal test.

7. The provision satisfies article 8’s requirement of legal certainty. Its general language reflects the impossibility of exhaustively specifying every situation in which dispensing with consent may become necessary. Read in its statutory and Convention context, it is sufficiently foreseeable, provided that the court construes it correctly and makes a reasonable factual assessment.

8. The case was to return to the sheriff for determination of the adoption application. Lord Reed also emphasised, by way of procedural guidance, that adoption proceedings require active case management and minimum delay. A late devolution issue need not be admitted without cause, particularly after proof has begun.

1. United Kingdom Supreme Court: Dismissed the mother’s appeal and affirmed that section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 was Convention-compliant and within legislative competence: [2012] UKSC 30.
2. Inner House of the Court of Session: On a reference by the sheriff, held that the provision was compatible with Convention rights and within the Scottish Parliament’s competence: [2012] CSIH 38, 2012 SC 8.
3. Sheriff Court: During unresolved adoption proceedings, the sheriff permitted a late devolution issue and referred it to the Inner House without completing submissions or determining the evidence.