Council wins adoption appeal after court rules living with father would be of ‘serious detriment’ to children’s welfare

A Scottish local authority seeking permanence orders with authority to adopt two brothers in foster care has successfully appealed against a sheriff’s decision to refuse the applications.

 

The Sheriff Appeal Court allowed the appeal after the council challenged a finding in fact to the effect that a return to residence with either the father or the mother would not be seriously detrimental to the welfare of the children. 

 

Sheriff Principal Duncan Murray, sitting with Sheriff Principal Marysia Lewis and Appeal Sheriff William Holligan, heard that the appellants Fife Council made two applications in terms of the Adoption and Children (Scotland) Act 2007 seeking permanence orders with authority to adopt in relation to two children: ALM, 4, and WAM, 3, but the applications were opposed by the children’s father, “KPM”.

 

Following a two-day proof in December 2017, the sheriff refused the applications in a judgment extending to some 69 pages, including 72 findings in fact and two findings in fact and law. 

 

 

The sheriff court heard that the parents of the children were married in March 2013, but separated in August 2016.  

 

The mother had another female child, KLM, 7, from a previous relationship, who was subject to compulsory measures of care and in foster care, while the respondent was also the father of two other female children - KM, 11, and BM, 7 - with whom he had no contact.

 

The social work department first became involved with the family in October 2010, and throughout 2011 and 2012 their home conditions were found to be “extremely poor” and dirty, while there were concerns about the children’s development and fears that they were being “exposed to domestic violence”. 

 

The children were placed on the child protection register but removed from the list in 2013 after the couple made positive changes and improvements in the home conditions, following which, in November 2014, the social work department decided to close their cases.

 

However, as early as December 2014 there were new concerns that the children were being cared for by a person thought to have a “history of sexual offending”.  

 

ALM, who was born in October 2013 and his brother WAM, born in December 2014, were removed to live with foster careers in January 2015 after child protection orders were granted.

 

Compulsory supervision orders were also granted requiring ALM and WAM to live with foster carers and not to have contact with respondent.

 

The sheriff found that the respondent had failed to show any interest or concern, let alone love, for his children, but considered that there was a “cut-off point” of 7 November 2014 when the social workers close the children’s cases, which he described as “an evidential barrier for the petitioner”.

 

The sheriff concluded that, taking the evidence as a whole, he was not satisfied that the appellant had established that the “threshold test” had been met, namely, that it would be to the serious detriment of the welfare of the children to live with either of their parents.

 

 

The council appealed against that decision, arguing that residence with a parent who has “seriously physically and emotionally neglected” his or her children, who is “aggressive and incapable of cooperating with social workers” trying to assist, has “no emotional attachment” to the child and whose absence from the child’s life is “beneficial” to the child, is “manifestly seriously detrimental to the child’s welfare”.

 

It was submitted that the sheriff “erred in law” because he had not carried out the necessary evaluation required by section 84(5) of the 2007 Act, which sets out “threshold test” of serious detriment, ie, the conditions and consideration applicable to making a permanence order.

 

The sheriff failed to have regard to his own findings which were redolent of serious detriment to the children residing with their parents in the past, and to the fact they were unable to show a change in their capacity.

 

In any event, it was argued, the sheriff was “plainly wrong” to find in fact and law that a return to residence with either parent would not be seriously detrimental to the welfare of either child, as this conflicted with his findings.  

 

For the respondent, it was submitted that the sheriff had “correctly interpreted and applied the threshold test”, and as the test was not satisfied no permanence order could be made.  

 

It was argued that a real possibility that a parent caring for a child harmed another child in the past was not by itself sufficient to establish that the child now being cared for was “likely to suffer” harm in the future. 

 

Depriving parents of a child of their parental authority at common law was a most serious matter and should only be done if the “strict criteria” were satisfied.

 

It was submitted that mere detriment to the welfare of a child was “not enough” to satisfy the threshold test - serious detriment was required.

 

 

However, the appeal sheriffs held that the sheriff was “wrong” in concluding that the threshold test of serious detriment was not met.

 

Delivering the opinion of the court, Sheriff Principal Murray said: “We consider the sheriff fell into error in his determination that the decision to close the case of the children on 7 November 2014 is an evidential barrier for the respondent, which resulted in his taking no account of the pre-November 2014 facts in reaching his decision.  

 

“The evidence prior to January 2015 was more than ample material to reach the conclusion that it would be not just detrimental but seriously detrimental to the welfare of the children for them to be returned to reside with the parents or either of them.” 

 

He added: “In the course of his judgment the sheriff made clear his firm conclusion that the children cannot live with either parent. In our opinion the impediments the sheriff identified to his conclusion as to the threshold test are not well founded.  

 

“Having made this error in law it is open for this court to reconsider the sheriff’s decision on the question of serious detriment. We consider that had he given proper weight to the findings which he made, he should have reached the conclusion that there was a real possibility of serious detriment to ALM and WAM if they were allowed to reside with their father.”