ANS and another v ML (Scotland)

The Supreme Court held that section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is within the legislative competence of the Scottish Parliament and is compatible with the Convention rights. The court interpreted the phrase that the child’s "welfare ... requires" dispensing with parental consent as imposing a high test of necessity and proportionality, requiring an "overriding requirement" that adoption (and nothing less) is needed for the child’s welfare. In applying that test the court must apply section 14 (welfare paramount) and section 28(2) (better for the child) of the 2007 Act, and have regard to matters listed in section 14(4). The court further held that the provision is not impermissibly vague or lacking in legal certainty when construed in its statutory context and in the light of the duty under the Human Rights Act to act compatibly with Convention rights.

The court also made subsidiary findings about procedure: the devolution issue was raised late in the Sheriff Court and caused considerable delay, and the judgment emphasises the need for active case management and avoidance of undue delay in adoption proceedings.

Background and parties: The appellant was the mother of a child who was the subject of adoption proceedings in the Sheriff Court and opposed the proposed adoption. The first respondents were the prospective adopters and the Lord Advocate intervened to defend the lawfulness of the provision. The sheriff referred a devolution issue to the Inner House, which held the provision to be within competence. The appellant appealed to the Supreme Court.

(i) Nature of the claim / relief sought: The issue arose in adoption proceedings where the mother challenged the legislative competence of section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 on the ground that it was incompatible with Convention rights (Schedule 1 to the Human Rights Act 1998) and therefore not law under section 29(2)(d) of the Scotland Act 1998.

(ii) Issues framed:

• Whether section 31(3)(d) is compatible with article 8 ECHR as incorporated by the Human Rights Act 1998, in particular whether an order made under it would be "in accordance with the law" and satisfy the requirements of necessity and proportionality.
• How the provision should be interpreted as a matter of ordinary statutory construction and whether, if necessary, it could be read compatibly under section 3 HRA.
• Whether the provision lacked sufficient legal certainty to meet article 8(2).

(iii) Court’s reasoning and outcome: The court first applied ordinary principles of statutory interpretation to ascertain legislative meaning, recognising the court’s duty to give effect to Parliament’s intention and the presumption against breach of international obligations. It concluded that section 31(3)(d) must be read in context with sections 14 and 28 and that the word "requires" imports a test of necessity and proportionality equivalent to an "overriding requirement" for the child’s welfare over the child’s lifetime. That construction aligns the provision with Strasbourg jurisprudence concerning permanent severance of family ties and with the welfare paramountcy in domestic law. The provision was not impermissibly vague: general language is inevitable in a residual welfare safety-net and national courts are primarily responsible for its reasoned application; foreseeability complaints only arise if domestic application is manifestly unreasonable or arbitrary. The court therefore dismissed the appeal. The judgment also criticised the late raising of the devolution issue in the Sheriff Court and emphasised the need to avoid undue delay in adoption proceedings.

Appeal dismissed. The court held that section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is within the legislative competence of the Scottish Parliament and compatible with article 8 ECHR when interpreted to require an overriding necessity that adoption (and nothing less) is required for the child’s welfare; the provision is not so vague as to lack legal certainty when read in its statutory context and in light of the duties under the Human Rights Act. The court also criticised procedural delay and late raising of the devolution issue in the Sheriff Court, stressing the need for active case management in adoption cases.

Adoption proceedings began in the Sheriff Court; the sheriff referred a devolution issue to the Inner House under paragraph 7 of Schedule 6 to the Scotland Act. The Inner House held that the provision was within competence (ANS and DCS v ML [2012] CSIH 38, 2012 SC 8). The appellant appealed to the Supreme Court, which delivered judgment in ANS and another v ML [2012] UKSC 30.