In the matter of EV (A Child) (Scotland); In the matter of EV (A Child) (No 2) (Scotland) [2017] UKSC 15; (Supreme Court, 1 March 2017)

The Supreme Court unanimously allowed an appeal by parents who challenged a permanence order made by West Lothian Council in respect of their child (“EV”).

Background: The permanence order application was made under s.80 of the Adoption and Children (Scotland) Act 2007, which grants parental responsibilities and rights in relation to a child, including the authority to adopt. The conditions and considerations applicable to the making of a permanence order are set out in s.84 of the Act. Under s.84(5)(c)(ii) the court must be satisfied, in relation to each of the parents, that the child’s residence with that person is likely to be seriously detrimental to her welfare. The Lord Ordinary granted the permanence order. In reaching this decision he made no findings of fact as to whether the threshold test in s.84(5)(c)(ii) was satisfied, instead considering whether the local authority’s actions had a proper basis. The Lord Ordinary’s decision was upheld by the Inner House (see [2016] CSIH 60), except in relation to a grant of authority to adopt and a related prohibition on contact by the parents.

Held: In allowing the appeals, the Supreme Court reasoned that in considering a permanence order the judge is not exercising a merely supervisory jurisdiction over the approach of the local authority, and must base a determination of whether the threshold test of s.84(5)(c)(ii) has been met on findings of fact, established on a balance of probabilities. The requirement that residence with the parent is likely to be “seriously detrimental” indicates depriving parents of their parental authority is a serious matter and should only be done if strict criteria are satisfied. Suspicions are insufficient, and the Lord Ordinary should have determined whether the allegations were relevant to the s.84(5)(c)(ii) threshold test. If they were, the Lord Ordinary should have made a finding of fact on the balance of probabilities as to whether the allegations were true. If they were not, they should not have been taken into account in consideration of the threshold test. In addition, the Lord Ordinary did not refer to other matters which he had a duty to consider under s.84(5)(b). The Court determined that the application should be refused, rather than remitted to be decided by the Inner House. However, it is open to the local authority to commence fresh proceedings as and when appropriate.

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