Re EV (A Child) (Scotland) [2017] UKSC 15

The Supreme Court allowed appeals by parents with learning difficulties against a permanence order granting authority to adopt their daughter. The Lord Ordinary had failed to apply the statutory threshold test in section 84(5)(c)(ii) of the 2007 Act, instead assessing whether the local authority's concerns were justified.

Facts

The case concerned EV, a child born on 30 December 2013, who had been in local authority care since birth. West Lothian Council applied in December 2014 for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007, with authority to adopt. The application was opposed by EV’s parents, both of whom had learning difficulties throughout their lives. EV is of mixed race; her mother is white and her father is Sri Lankan whose first language is Tamil.

The local authority’s concerns centred largely on the father’s behaviour, including: (i) sexual allegations made in England in 2010 by a vulnerable woman with learning difficulties, which were dropped without charge; (ii) an alleged statement that he would like to have sex with the mother’s eight-year-old daughter from a previous relationship (MP); and (iii) a threat made by telephone in August 2013 that he would kill social work staff if the parents did not get custody, for which he pled guilty under section 127(1) of the Communications Act 2003 and was fined £135. No parenting assessment had been carried out in respect of the father. The mother had previously raised two older children with a previous partner without significant local authority support.

The Lord Ordinary granted the application on 31 March 2016 after a nine-day proof. The Second Division upheld the decision other than the grant of authority to adopt and a related prohibition on contact.

Issues

The principal issue identified by the Extra Division was whether the guidance in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9 applies in Scotland. At the hearing, it was common ground that it does. The court therefore had to determine: (1) whether the decisions of the Lord Ordinary and Second Division could be supported despite their not following the In re J approach; and (2) if not, whether the case should be remitted or the application simply refused.

The statutory framework

Lord Reed analysed sections 80 to 84 of the 2007 Act. Section 84(5)(c)(ii) imposes a threshold factual test: the court must be satisfied that the child’s residence with the parent is, or is likely to be, seriously detrimental to the child’s welfare. This must be satisfied before any further provisions of section 84 become relevant. Section 84(3) (the ‘no order’ principle) and section 84(4) (welfare as paramount consideration) only arise once the threshold test is met.

Arguments

The parents argued that the Lord Ordinary had failed properly to apply the threshold test under section 84(5)(c)(ii) and had wrongly assessed the case as if exercising a supervisory jurisdiction over the local authority’s actions. The local authority contended that the Lord Ordinary’s conclusions could be supported and sought, if the appeals were allowed, that the case be remitted to the Inner House.

Judgment

The judge’s function

Lord Reed (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed) held that the judge is the primary decision-maker, wholly responsible for deciding the issues on the basis of his own findings on the evidence. The role is not supervisory. Lord Reed cited Lady Hale in In re B emphasising that deciding where the truth lies is what courts are for, and drew on In re S-B where she likened social workers to detectives and the court to the tribunal of fact.

The threshold test and proof of facts

The court endorsed the ‘golden rule’ from In re J, citing Lord Hope:

the golden rule must surely be that a prediction of future harm has to be based on facts that have been proved on a balance of probabilities

Lord Reed also cited Lord Hoffmann in In re B:

If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one.

The requirement of ‘serious’ detriment is of crucial importance. Lord Reed cited Lord Templeman in In re KD:

The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.

And Hedley J in In re L:

society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

Deficiencies in the Lord Ordinary’s opinion

Lord Reed found the Lord Ordinary’s opinion deficient in numerous respects: he did not set out the statutory provisions; did not distinguish between a permanence order and authority for adoption; did not refer to In re J; made few findings of fact on the disputed issues; and adopted the wrong approach by considering whether the local authority’s actions were justified rather than determining the facts himself. The Lord Ordinary expressly declined to make any finding on whether the 2010 sexual allegations were true. He misunderstood the evidence about the August 2013 threats (treating it as two incidents rather than one). He failed to address the relevance of the various concerns to the threshold test. He made no finding about EV’s possible global developmental delay, her racial and cultural background, the working of her foster care arrangements, or the prospects of an adoptive placement. The order prohibiting contact breached section 80(3), which required each parental responsibility and right to be vested in a person.

The Second Division’s reasoning

The Second Division had glossed the Lord Ordinary’s conclusion as addressing section 84(5)(c)(ii), but Lord Reed disagreed: the language used (welfare throughout childhood) pointed to section 84(4), not the threshold test. The Inner House’s own conclusion that the threshold test was met also relied on unproved allegations contrary to In re J, failed to explain what the apprehended detriment was or why it was likely and serious, and did not address the child’s racial origin and cultural and linguistic background as required by statute.

Disposal

The appeals were allowed. Rather than remit to the Inner House (which would have had to consider stale evidence on a transcript, where the assessment of parents with learning difficulties may benefit from seeing the witnesses), the Supreme Court refused the petition, leaving the local authority to commence fresh proceedings if appropriate. This would also allow the local authority to consider conducting a parenting assessment in respect of the father.

Implications

The decision confirms that the guidance in In re J, particularly Lord Hope’s ‘golden rule’, applies to applications for permanence orders under section 84(5)(c)(ii) of the Adoption and Children (Scotland) Act 2007. Predictions of future serious detriment to a child’s welfare must be based on facts proved on the balance of probabilities, not on unproven suspicions or allegations.

The judgment emphasises that the threshold test in section 84(5)(c)(ii) is a fundamental gateway: unless it is satisfied, no further consideration of the welfare provisions in section 84(3) and (4) is relevant. The court endorsed the approach of Lord Drummond Young in R v Stirling Council.

The judgment also clarifies the proper division of functions between local authorities and the courts. The judge is the primary fact-finder and must not adopt a supervisory approach assessing whether the local authority had a reasonable basis for its concerns. The burden of proof rests on the party seeking the order.

Where the court finds the threshold test satisfied, its reasoning must clearly identify: (1) the nature of the apprehended detriment; (2) why it is likely; and (3) why it is serious. The court must analyse the realistically available options and explain why one is preferred. Evidence must address those options.

The judgment recognises the particular sensitivity required where parents have learning difficulties: society must tolerate diverse standards of parenting, and removing a child requires strict criteria to be met. It is not enough to show a child might benefit from being raised elsewhere. The decision is significant for local authorities, social workers and family law practitioners in Scotland, ensuring that permanence orders – which involve serious interference with family life – are made only where the statutory threshold is rigorously satisfied on proven facts.

Verdict: The appeals were allowed. The Supreme Court refused the petition for a permanence order, leaving it to the local authority to commence fresh proceedings as and when appropriate.

Source: Re EV (A Child) (Scotland) [2017] UKSC 15