IN THE APPLICATION FOR A PERMANENCE ORDER WITH AUTHORITY TO ADOPT BY THE CITY OF EDINBURGH COUNCIL IN RESPECT OF CHILD CM v. RESPONDENTS MOTHER (CAM) AND FATHER (JG), 09 April 2010, Sheriff Kathrine E C Mackie

Sheriffdom of Lothian and Borders at Edinburgh

Note

Sheriff Kathrine EC Mackie

In the application for a Permanence Order with authority to adopt under section 80 of the Adoption and Children (Scotland) Act 2007

The City of Edinburgh Council City Chambers High Street Edinburgh EH1 1YJ

In respect of the child CM (18/09/07)

Respondents CAM(mother) and JG (father)

Act: Stormonth City of Edinburgh Council

Alt: Gilmour Hughes Walker Edinburgh

Aitken Thorley Stephenson Edinburgh

PO16/09

Edinburgh 9^th April 2010

The Sheriff, having decided not to refer the child's case to the Principal Reporter and having heard parties on the second respondent's motion assigns 23^rd April 2010 as a hearing with Edinburgh Sheriff Court House 27 Chambers Street Edinburgh.

NOTE

[1]. The Petitioners, the City of Edinburgh Council, presented on 22^nd December 2009 in respect of CM, a petition craving a Permanence Order in terms of section 80 of the Adoption and Children (Scotland) Act 2007. In addition to the mandatory provisions ancillary provisions are craved including authority for the child to be adopted.

[2]. The child is subject to a Supervision Requirement in terms of section 70 of the Children (Scotland) Act 1995 whereby she resides with foster carers.

[3]. CM's parents oppose the granting of a Permanence Order. Proof has been fixed to take place on 16^th August 2010 and the four ensuing days.

[4]. On 15^th February 2010 a report by a Children's Hearing was lodged in terms of section 95(2) of the 2007 Act. The Children's Hearing propose modification of the Supervision Requirement by changing CM's residence from her current carers to a new prospective permanent placement and by ceasing face to face contact with her parents.

[5]. At a hearing on 26^th March 2010 the petitioners' agent moved that the child's case be referred to the Principal Reporter in terms of section 96(3) of the 2007 Act. The Respondents' agents opposed the motion firstly, on the ground that the proposed modification was not in the child's best interests, secondly that such modification would be prejudicial to their respective positions in the present petition and may pre-empt the outcome and thirdly that the legislative provisions are in any event unclear.

[6]. It was acknowledged that prior to the introduction of the 2007 Act a Children's Hearing could make orders imposing or modifying a Supervision Requirement notwithstanding that an application had been presented to the Court for a parental responsibilities order or an order declaring a child free for adoption and that by such variation or modification a child's residence might be altered during such proceedings. In particular a child might be placed with prospective adopters and decisions made about the exercise of contact by a child's natural parents.

[7]. In terms of section 96(2) of the 2007 Act "A supervision requirement in respect of the child may not be (a) made or (b) modified under paragraph (c) or (d) of subsection 9 of section 73 of the 1995 Act until the application (for a permanence order or variation of such an order) is determined (or as the case may be withdrawn or abandoned)."

[8]. Accordingly it would appear that Parliament has decided that Children's Hearings should no longer have power to make or modify supervision requirements during the course of proceedings such as the present. In terms of section 95(2) of the 2007 Act where a Children's Hearing proposes to make or modify a supervision requirement before an application for a permanence order is determined they must prepare for the court a report containing such information as Regulations may prescribe. The Respondents took no issue with the information contained within the report from the Children's Hearing.

[9]. In terms of section 96(3) of the 2007 Act section 96(2), that is the prohibition against the making or modification of a supervision requirement, does not apply "if the court...........refers the child's case to the Principal Reporter (whether following receipt of a report under section 95 or otherwise).".

[10]. No criteria are set out in the 2007 Act for determination of the circumstances in which the court may or should refer the child's case to the Principal Reporter. There is no definition of "the child's case". It is not clear whether what is intended by "the child's case" is all the circumstances relating to the child or only some particular aspect of the case. The nature of the application for a permanence order is such that the whole circumstances relating to the child and what is in the child's best interests are being considered by the court. Section 84 of the 2007 Act sets out conditions and considerations to which the court must have regard before an application for a permanence order may be granted. In terms of section 97 of the 2007 Act a court may make such interim order as it thinks fit and if the provisions of the order conflict or are inconsistent with a supervision requirement the provisions of the order prevail. In these circumstances and taken together with the prohibition against the making or modification of a supervision requirement during proceedings, in my opinion, it is a reasonable interpretation of sections 95 96 and 97 that Parliament intended that the court should be the principal forum for making decisions in relation to the child during the process of determining an application for a permanence order.

[11]. Section 96(3) of the 2007 Act appears to envisage circumstances in which, whatever is meant by "the child's case", a referral may be made to the Principal Reporter. These circumstances do not appear to be restricted to where the Children's Hearing propose the making or modification of a supervision requirement as set out in a section 95(2) report. Indeed by not providing, as Parliament could easily have done, that upon receipt of a report proposing the making or modification of a supervision requirement the court may remit to the Children's Hearing for implementation of their proposal the precise purpose of any referral is less than clear. The prohibition against the making or modification of a supervision requirement is removed upon a referral being made to the Principal Reporter. Accordingly it would appear to be open to a Children's Hearing to make whatever supervision requirement or modification they see fit, whether or not that was what was proposed in their report. In terms of section 73(8)(a)(iva) of the 1995 Act upon a referral in terms of section 96(3) of the 2007 Act the Principal Reporter shall arrange a Children's Hearing "to review" any supervision requirement. The Children's Hearing so convened may, in terms of section 73(9) of the 1995 Act, continue the review for further investigation, terminate or vary the requirement, insert a requirement which could be imposed in terms of section 70(3) or continue the requirement with or without such variation or insertion. The Children's Hearing would not appear to be bound either by the terms of any report made by an earlier and probably differently constituted Hearing or the court.

[12]. The 2007 Act is silent as to whether if a referral is made to the Principal Reporter the prohibition against making or modifying a supervision requirement flies off permanently or applies again after any decision made by a Children's Hearing arranged by the Principal Reporter following the referral. It was suggested by the Petitioners' agent that any further proposed modification would require another section 95(2) report to the court but that would only apply if the prohibition in terms of section 96(2) of the 2007 Act is reinstated. Since there is no express provision to that effect and section 96(3) expressly states that the prohibition in section 96(2) does not apply "if the court.....refers the child's case to the Principal Reporter" I do not think that it can be presumed that the prohibition is reinstated. The provision is not restricted to the proposed modification in the section 95(2) report and the absence of any definition of what is meant by "the child's case" seems to me to mean that the prohibition flies off upon a referral being made so that the circumstances relating to the child are to be considered and determined by the Children's Hearing.

[13]. Rules of Court have been promulgated by the Act of Sederunt (Sheriff Court Rules Amendment)(Adoption and Children (Scotland) Act 2007) 2009. Rule 51 provides for procedure following receipt of a report from a Children's Hearing in terms of section 95(2) of the 2007 Act. Provision is made for intimation and the lodging of a form of response by persons who wish to oppose the proposals of the Children's Hearing. In terms of rule 51(3) the Sheriff shall consider the report and any form of response and decide whether to refer the child's case to the Principal Reporter. A hearing may be held to assist the Sheriff to decide what to do. Where he decides to refer the child's case to the Principal Reporter in terms of rule 51(4) "he shall pronounce an order to this effect which shall narrate in terms that he is referring the child's case to the Principal Reporter". Where he decides not to refer the child's case to the Principal Reporter he may make such other order as he considers appropriate for the expeditious progress of the case. Notice in terms of Form 25 is to be given to the Principal Reporter. Form 25 contains two options, firstly intimating that the Sheriff has decided to refer the child's case to the Principal Reporter and secondly intimating that he has decided not to so refer and that the terms of section 96(2) of the 2007 Act apply.

[14]. No rule has been promulgated for a referral to the Principal Reporter other than following receipt of a report in terms of section 95(2) of the 2007 Act. It would appear that the Sheriff Court Rules Council envisaged a referral only in the event that a Children's Hearing wished to make or modify a supervision requirement.

[15]. The petitioners' agent submitted that in referring the child's case to the Principal Reporter the court should have confidence in the Children's Hearing to act in the best interests of the child. If the Respondents were dissatisfied with the decision of the Hearing an appeal would be open to them in terms of section 51 of the 1995 Act. It has long been the view that the appropriate forum in which to discuss and determine issues in relation to the welfare of children is the Children's Hearing. The Respondents' agents expressed concern that if the child's case was referred to the Principal Reporter for review of the supervision requirement purportedly for a decision on the proposals set out in the section 95 report the prospects of success of any appeal may be undermined on the basis that the court may be seen to have considered the proposals and given approval of them by deciding to refer the case to the Principal Reporter. There may be force in that submission if the purpose of the referral of the child's case to the Principal Reporter is for the Children's Hearing to implement the modification of the supervision requirement as proposed in the section 95 report.

[16]. If I am correct in my interpretation of these provisions and the court is the principal forum for decisions about the welfare of the child while an application for a Permanence Order is being considered it is difficult to conceive of circumstances when the court might refer the child's case to the Principal Reporter. The court also has a duty to act in the best interests of the child. It is open to the court to make interim orders and if while the application for a Permanence Order is being considered changes are required to the arrangements for the child whether that be place of residence, contact or attendance at a particular school or otherwise an appropriate motion may be made.

[17]. In this case the modification proposed in the section 95 report involves the placement of the child with prospective adopters and a cessation of such contact as is being exercised by the Respondents. The petitioners crave authority to adopt as an ancillary order. That is opposed by the Respondents and a decision has yet to be made by the court following consideration of all evidence to be led by all parties. If the petitioners take steps to promote a bond between the child and prospective adopters and break or at least interfere with any bond which may exist with the Respondents that may have a bearing on the ultimate outcome. On the other hand if the child is not placed with prospective adopters with whom she has now been "matched" that may delay the child's development. The petitioners' agent advised that the child's current placement was for a short term only and referred to the terms of section 83(1)(b) of the 2007 Act which provides that one of the conditions to be met before authority to adopt is granted is that the court is satisfied that the child "has been or is likely to be placed for adoption". Accordingly it is envisaged that the child may already have been placed with prospective adopters when the court is considering the application for a Permanence Order with authority to adopt. It was submitted that it was in the child's best interests to move to a permanent placement as soon as possible. To do so would not pre-empt the decision of the court because even if the application were not granted it would not necessarily mean that the child would return to live with the Respondents. However, it appears to me that if the application or at least the crave for authority to adopt were not granted the child's placement with prospective adopters would not continue and the child would be faced with further disruption, a change of carer and the potential damage to whatever bond she has with the Respondents. There is no information to suggest that the child's current placement is in jeopardy and that the proposed modification of the supervision requirement and change of residence is for any purpose other than that prospective adopters have been identified. Further there is no information to suggest that the prospective adopters would not be available if the application is granted with authority to adopt following proof.

[18]. Strict time limits are imposed in terms of the rules of court. It is the duty of the court, in accordance with the Practice Note No 1 2009, "to secure that all applications and other proceedings under the Act are dealt with as expeditiously as possible and with the minimum of delay". Accordingly there ought not to be any "prolonged delay" which appears to be the concern of the curator ad litem. On the other hand it cannot be assumed that the child will ultimately be adopted as appears to be suggested in the decision of the Children's Hearing on 11^th February 2010.

[19]. In all the circumstances I have decided not to refer the child's case to the Principal Reporter.