What The Supreme Court Judgement Really Means


In March 2017, the Supreme Court delivered it’s judgement in the case of EV. Before and after this case, there have been a number of other decisions made by Scottish Courts which have given a fresh perspective to adoption and fostering. It is important to be clear about the implication of these judgements and to realise that this is an ever changing forum, with each Court decision requiring to be considered in context. At any time of change, there can be understandable concern and even misunderstanding. This paper seeks to provide some clarity and reassurance about what the Courts are actually saying. Below are responses to some common misconceptions.

The law of adoption and fostering has changed.

There has been no change to the legislation around adoption and fostering. What there has been is a restating of the law and a clarification of how it should be applied.

Permanence Orders are no longer going to be granted by courts

Courts will grant a PO where there is evidence to support the application and the need for the granting of the PO.

A threshold test has been introduced placing restrictions on social workers in terms of when they can intervene

This is incorrect. The threshold test is a legal test which is found in the Adoption and Children (Scotland) Act 2007. It means that a Court may grant a PO only once this test has been overcome, namely, that the Court is satisfied that where there is a person with parental rights and responsibilities, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

This threshold test means that social workers can only become involved with a family where this test can be passed

This is incorrect. The test applies only in Court and should not restrict social workers from taking appropriate action in other situations. Social workers have a statutory duty and must intervene to protect children, support families and investigate.Their intervention should be necessary and proportionate, depending on the circumstances of each individual case. The criteria for removing a child under a CPO or for recommending a CSO or for placing a child on the Child Protection Register remain the same and social workers should not hesitate to use these powers to act in the best interests of the child.

The threshold test applies to all adoptions

This is incorrect. The threshold test applies only to applications for POs The local authority may also be seeking authority to adopt, but a PO will not be granted until and unless the threshold test has been met in relation to the PO. The test does not feature in direct petitio adoptions.

Courts are putting the rights of the parents before the welfare of the children

The welfare of children remains the paramount consideration for Courts. Local authorities apply for POs and the onus is on them to convince the Courts that the threshold test has been met. Good practice dictates that firstly the situation of those with rights and responsibilities for the child should be assessed in terms of the child’s welfare.

Courts will not grant a Permanence Order or adoption where there is a kinship carer

This is incorrect. Courts will and have granted POs and adoptions for the child who is living with a kinship carer, sometimes in order to secure this placement. The Court makes decisions based on what the minimum intervention is in respect of the child’s welfare, stating why adoption or a PO is needed and why nothing else would do.

It would be better just to look around for kinship carers instead of applying for a Permanence Order

By all means, explore the availability and suitability of kinship carers but, where it is necessary for the local authority to acquire PRRs to plan for the safety, security and stability that each child needs, then a Permanence Order should be sought to resolve this.

A kinship care order provides the same protection as a Permanence Order

A kinship care order does not remove PRRs from the parents, it simply grants PRRs in respect of another adult. Where there is disagreement or conflict between the parent and the kinship carer, it is likely that there would need to be ongoing court involvement to try to resolve this. A PO allows the local authority to acquire PRRs and for ancillary provisions to be shared between the local authority and the carer depending on the circumstances.

In adoptions the consent of the parent cannot be dispensed with where the parent can discharge their parental rights and responsibilities and is likely to be able to continue to do so

This is incorrect. Even where this has not been established, in an adoption be it a direct petition or under a POA, where the child’s welfare otherwise requires consent to be dispensed with, the Court can do this. The Court must first determine whether the parent can and is likely to be able to continue to discharge their PRRs. An example of where this might be appropriate is where a parent has been able to turn around their life and even in respect of another child, able to discharge their PRRs; however, for a particular child, perhaps with enhanced needs, maybe due to early life trauma, or where returning to the parent's care would be contrary to their welfare, the Court can still dispense with the need for the parent to consent to grant the adoption.

One parenting assessment will never be enough

A parenting assessment should be carried out in respect of each parent. It must be relevant as at the date when the Court is hearing the application. It does not mean that parenting assessments need to be repeatedly carried out but the local authority must be able to show that the parenting assessment is relevant and reflects the up-to-date circumstances of the parent. This also demonstrates that the local authority has been open to the possibility of the parent being able to resume their parenting responsibility if possible. Where the local authority is aware of a change in circumstance which might affect their decision, to pursue permanence then this should be appropriately addressed in the information and recommendation they make available to the Court. Consideration should be given to the need for another parenting assessment to be undertaken.

Local authorities cannot proceed on facts not established in Court or admitted

This is inaccurate. The Court was clear that any suspicions should be properly investigated. It is not possible on every occasion to prove a fact beyond all reasonable doubt; however, a proper investigation should be undertaken and evidenced by the local authority. This will demonstrate that the local authority considered the suspicions, spoke to anyone with information about these, assessed the likelihood that what is being alleged happened and then come to a conclusion as to whether it probably did happen or it probably did not happen. If the opinion is that it probably did, then this information will be taken into account in forming the basis of any assessment and in decision making. If it is concluded that it probably did not happen, then it should be dismissed and should not form any part of an assessment or inform any decision making. Suspicions must be scrutinised and either disregarded or acted upon; they cannot continue to be referred to without assessing what, if any weight should be given to them.

Social workers gather the evidence and lawyers prove the facts

This is untrue. Social workers and local authority solicitors must work closely together from the outset of involvement with a family. Planning, collaboration, advice, support and information sharing are the corner stone of offering the best service to children and families. Including other professionals and having the benefit of their expertise will compliment the crucially important successful working relationship of the social worker and lawyer in the local teams.

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