A & Ors (Children : Scottish adoptions)

A Scottish permanence order granting authority for adoption must be recognised and given effect in England. Under Adoption and Children Act 2002, s 47(6)(a), the existence of that order is the sole relevant jurisdictional fact; the English court does not reconsider parental consent or permit opposition to the adoption order. A natural parent whose Scottish parental responsibilities and rights have been extinguished, save for contact, does not retain English parental responsibility for the purposes of s 52(6). Such a parent is therefore not automatically a respondent. However, where an exercisable right of contact remains, the court should ordinarily join the parent discretionally so that the parent may be heard on future contact, while making clear that joinder does not permit opposition to adoption. A Scottish local authority involved in the adoption arrangements is an adoption agency for the relevant purposes and must assist the English court.

The court determined preliminary issues arising in six English adoption applications. Each child was subject to a Scottish permanence order granting authority for adoption under the Adoption and Children (Scotland) Act 2007, and each had been placed with prospective adopters living in England. The Scottish orders had dispensed with parental consent and extinguished most parental responsibilities and rights, although some orders preserved direct or indirect contact.

The issues included recognition and effect of the Scottish orders, whether parental consent had to be reconsidered, whether the natural parents remained parents with parental responsibility for English purposes, whether they should be joined or notified, and the obligations of the Scottish local authorities in the English proceedings.

1. Recognition and consent. The Scottish permanence orders were recognised both at common law and, more importantly, under ss 47(6)(a) and 105(2) of the Adoption and Children Act 2002. Where the third condition in s 47(6) applies, the court may make an adoption order if the child is subject to a Scottish permanence order granting authority for adoption. That condition contains no additional consent requirement or filter. Parental consent has already been determined in Scotland under s 83 of the Adoption and Children (Scotland) Act 2007.
2. Parental responsibility. The natural parents no longer had parental responsibility for the purposes of s 52(6) of the 2002 Act. Contact is a facet of parental responsibility but does not exhaust the concept. The retention of contact alone, or of procedural routes capable of restoring or varying rights under the Scottish legislation, did not clothe the parents with English parental responsibility.
3. Joinder and notification. The parents were not automatic respondents under FPR 14.3 and were not entitled to oppose the adoption order. Applying the approach in East Lothian Council, Petitioners, parents retaining exercisable contact should ordinarily be joined under FPR 14.3(3) and 14.8 so that they may be heard about future contact. The order should explain that joinder does not enable them to defend or oppose adoption. Where all contact has been terminated, that discretionary joinder will ordinarily not arise.
4. Scottish local authorities. Sections 42(8) and 43 of the 2002 Act, read with FPR 14.11, required a Scottish local authority that had participated in the adoption arrangements to be treated as an adoption agency for these purposes. It could therefore be joined under FPR 14.3 and required to provide the report and assist the court. The report should obtain relevant information about the child, parents, relationships, contact and wishes and feelings, principally for the child’s welfare.
5. The court anticipated that procedural directions could be agreed and invited consideration of a generic directions order for future cases. It also identified errors in the Family Court Practice and Form A58, which failed to accommodate applications under s 47(6).