Scottish Borders Council v Z (2020)

The Sheriff Appeal Court has found that the length of time a child is settled elsewhere can be taken into account when a court is deciding whether it is likely to be seriously detrimental for the child to be returned to the care of their parent(s).

Case Summary

The Sheriff Appeal Court has refused an appeal against the decision of a Sheriff to grant a permanence order in respect of a child, Z. The Sheriff had also granted an order leaving contact at the discretion of the local authority, rather than fixing any minimum requirements as requested by the mother. An appeal against the contact order was also refused.

The child, Z, aged 10, had lived with his maternal grandparents since April 2014 and a compulsory supervision order had been in place since October 2014. The child’s mother had struggled with alcoholism since 1995, although there had been some periods of sobriety and she had not relapsed since 2017. The Sheriff decided that it was likely that it would be seriously detrimental for Z to return to live with his mother because of the risk that she would relapse back into alcoholism, and because of the removal of the protective factors in his current placement. The threshold test for granting the permanence order sought was therefore met.

The Sheriff Appeal Court held that the Sheriff’s approach and reasoning in making his decision, both in relation to the threshold test and contact, could not be criticised.

In making its decision, the Sheriff Appeal Court noted that there may be cases where a move back to a parent after some time settled in a safe, secure placement elsewhere might in itself be likely to cause serious detriment to a child, without other factors present. However, the court would always have to consider all aspects of the evidence when deciding whether the serious detriment test was met, and consider all of the issues as holistically as possible.

This means that the length of time a child is settled elsewhere can be taken into account when the court is deciding whether the threshold test is met in permanence cases. In some cases, it may even be the sole reason why the court decides that the test is met.

What are the practical implications?

The main practical implication is that it is now clear there is a need to move quickly where a child is removed from the care of their parent. Legal advice must be sought as early as possible after the child is removed. The Sheriff Appeal Court pointed out that “courts must be careful not to encourage delay on the part of local authorities in coming to a decision about a child’s future”. Such delays need to be avoided.

If you are working with a young person who has been removed from the care of their parents, or a young person with a child of their own who has been removed from their care, you should seek legal advice as soon as possible. As this case demonstrates, any delays may have an impact further down the line if matters proceed to permanence.