In the matter of EV (A Child) (Scotland)

A permanence order under the Adoption and Children (Scotland) Act 2007 requires strict sequential analysis. The court must first find, on the balance of probabilities, that residence with each parent is or is likely to be seriously detrimental to the child’s welfare. A prediction of future detriment must rest on proved facts, not allegations, suspicions or a mere risk.

The judge is the primary decision-maker and must scrutinise the evidence independently. The threshold protects children and parents from unjustified state intervention. Parenting which is imperfect or would leave a child disadvantaged does not suffice. If the threshold is met, the court must then compare the realistic options, treat welfare throughout childhood as paramount, and explain why an order is better than no order.

West Lothian Council sought a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007, with authority to adopt EV. EV had been in care since birth. Her parents, both of whom had learning difficulties, opposed the application.

The Lord Ordinary granted the permanence order and authority to adopt. The Second Division, in [2016] CSIH 60, upheld the permanence order but quashed the authority to adopt and the related prohibition on parental contact. Both parents appealed.

The parties accepted that the principle in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9 applied to the Scottish legislation. The central questions were whether the decisions below could stand despite their failure to follow that approach and, if not, whether the proceedings should be remitted or the petition refused.

1. The appeals were allowed unanimously and the petition was refused. Lord Reed delivered the judgment, with which Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed. Fresh proceedings remained open to the local authority if and when appropriate.

2. Section 84(5)(c)(ii) of the Adoption and Children (Scotland) Act 2007 imposes a threshold factual test. Before any permanence order can be made, the court must be satisfied in relation to each parent that residence with that parent is or is likely to be seriously detrimental to the child’s welfare. Section 84(4), which makes welfare throughout childhood paramount, does not alter that factual threshold. Section 84(3) arises only after the threshold has been met.

3. The judge is the primary decision-maker, not a reviewer of whether the local authority reasonably held concerns. The authority seeking the order bears the burden of proving relevant past facts on the balance of probabilities. A prediction of future detriment must be founded on proved facts. Unresolved allegations, suspicions and a mere real possibility that past misconduct occurred cannot support the prediction.

4. The requirement of serious detriment is crucial. Compulsory displacement of parental authority demands strict criteria. It is insufficient that a child would benefit from upbringing elsewhere, or that parenting would be imperfect, inconsistent or barely adequate. Courts and authorities must maintain perspective and assess whether support could address any parenting deficiencies.

5. The court’s reasons must demonstrate substantive application of the legislation, not repeat its language formulaically. If the threshold is met, the reasons should identify the likely detriment, explain why it is likely and serious, compare every realistic option, and address the evidence for and against each. The court must also consider the child’s racial origin and cultural and linguistic background where relevant.

6. The Lord Ordinary had assessed whether the local authority’s concerns were justified rather than deciding the statutory issues himself. He made no threshold finding, relied on unproved allegations, failed to distinguish a permanence order from authority to adopt, omitted relevant statutory considerations and did not compare realistic placements. His prohibition on contact also left no person vested with the relevant parental responsibility and right, contrary to section 80(3).

7. The Second Division could not cure those defects by assuming that a specialist judge had applied the correct test or by drawing additional inferences. Its own conclusion relied on unproved allegations and an unexplained risk of serious detriment, without identifying why the detriment was likely and serious or analysing the available options. A fresh hearing was preferable because the evidence was stale, the parents’ credibility required direct assessment, further evidence about the child was needed, and any renewed adoption proposal would require fresh proceedings.

1. United Kingdom Supreme Court: Allowed both parents’ appeals from [2016] CSIH 60 and refused the local authority’s petition, while leaving it free to commence fresh proceedings if appropriate.
2. Second Division of the Court of Session: In [2016] CSIH 60, upheld the permanence order but quashed the authority to adopt and removed the related prohibition on parental contact.
3. Lord Ordinary: Granted the local authority’s application for a permanence order, authority to adopt and prohibition on parental contact on 31 March 2016.