David Coutts discusses the lessons learned following the Supreme Court decision In the matter of EV (A Child) (No 2) (Scotland) to refuse West Lothian Council’s permanence order in respect of the child EV.

The emphasis on meeting the threshold test

The test for a permanence order is, justifiably, a high one. The hierarchy of section 84 of the Adoption and Children (Scotland) Act 2007 has been subject of much judicial comment. Before the welfare and no order principles can be considered, the court must be satisfied the “threshold test” is met; namely that the child’s residence with his/her parent(s) is, or is likely to be, “seriously detrimental” to the welfare of the child.

Following the decision of the Supreme Court, the threshold test must be at the forefront of the Local Authority’s mind. The Supreme Court is clear that a risk of serious detriment is not sufficient in itself. The Local Authority must prove its case and crucially, must address the court on following three issues directly:

1. What is the detriment to the child in staying in the care of his/her parents?

2. Why is this detriment considered serious?

3. Why is this detriment considered likely?

In our experience, the Scottish courts do consider this when making decisions to grant a permanence order. On this basis, the Supreme Court’s decision may not necessarily effect how this test is applied by the courts, but it certainly will impact on how decisions are written. The Inner House ultimately considered that the Lord Ordinary well understood and applied the threshold test in making his decision at first instance; however, the construction of his written judgement did not convince the Supreme Court of this.

The treatment of unsubstantiated allegations against a parent

Allegations against a parent are common in permanence cases. Allegations against a parent may be unsubstantiated when the decision is taken by Social Work to remove the child; they may have instigated this. That, to some, may seem incredibly harsh.

In stark contrast, we have seen a number of high profile tragic cases where a lack of action by Social Workers to investigate allegations thoroughly have led to tragic consequences. In the cases of Liam Fee, Mikaeel Kumar and Baby P in England, Social Workers have been widely criticised for a lack of intervention.

Whilst the Lord Ordinary focused on the justification for the Local Authority in proceeding with a permanence order application, particularly in respect of the unsubstantiated allegations, the Supreme Court was clear that this justification did not in itself, without relevant findings in fact, meet the threshold test.

It is this part of the Supreme Court’s decision which may carry most significance. Allegations against parents will need to be properly substantiated, and their effects evidenced, if they are to be sufficiently relied upon by Local Authorities.

Applications for permanence orders may be delayed whilst allegations are dealt with on a formal footing and, in some cases, properly concluded in a criminal context. This may result in children remaining in the Children’s Hearing system for longer than before.

Parenting capacity assessments

Another fallout from this case may be in respect of parenting capacity assessments.

The message from the Supreme Court is clear that the onus is not on a parent to show they have the necessary parenting skills to parent the child, but rather for the Local Authority to assess and prove they do not have the capacity to parent the child. Where a parent does not have the capacity to parent a child, the Local Authority then needs to address the risks to the child in staying in the care of that parent and whether such risks can be properly mitigated through the provision of proper support to the parent.

Accordingly, parenting capacity assessments should accompany all permanence applications and if that is not possible, for example due to a lack of engagement by the parent, then this should be accurately recorded in Social Work records and sworn to in Affidavit evidence presented to the court.

Round-up

In its conclusions, the Supreme Court was clear that West Lothian Council could make a permanence order application of new, with or without the authority to adopt.

West Lothian Council will need to explore fully the allegations against the father, if they still consider them relevant to his ability to care for EV, and readdress the issue of parenting capacity. Both of these matters must be related to the specific care needs of EV. Although the Supreme Court decision may have brought this particular aspect of the legal case to an end, the planning for EV’s future still very much continues.