Potential adopters of young girl fail in legal challenge of decision not to withhold their names from mother

Lady Wise

About this case:

• Citation:
  [2022] CSOH 32
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Wise

It was determined by the hearing that the child, IB, should continue to have indirect contact with her mother, KB, who appeared as the second respondent to the petition. The petitioners, X and Y, argued that the chair of the hearing ought to have made arrangements to hear their arguments on possible infringements of their ECHR rights.

The petition was heard by Lady Wise in the Outer House of the Court of Session. Inglis, advocate, appeared for the petitioners, Brabender QC for the Principal Reporter and Moynihan QC for the second respondent.

Procedural irregularity

In April 2018, when IB was one year old, she was seriously sexually assaulted by KB’s former partner, K, after which a Compulsory Supervision Order was made. A plan for IB to be adopted was made after she had been in foster care for over 2 years. A children’s hearing regarding IB was convened on 7 September 2021, at which the petitioners were not represented. No arrangements for their attendance at the hearing were made by the chair.

The petitioners challenged the decision of the hearing insofar as it failed to make arrangements for them to attend for the purpose of considering whether the request that their names and address not be disclosed was in contravention of the ECHR. It was also contended that the absence of written reasons in relation to the decision refusing to make a measure of non -disclosure within the child’s CSO amounted to a procedural irregularity.

It was submitted that the petitioners’ plan to adopt IB engaged their private life in terms of article 8 ECHR, and it was necessary for them to attend the hearing for there to be proper consideration of the matter. Accordingly, the chairing member ought to have exercised their discretion and invited them to attend.

Counsel for the first respondent submitted that the petitioners’ family life as a couple had not been engaged, or alternatively had to be balanced against the rights of the second respondent. Counsel for KB added that she had accepted that there was no likelihood of her looking after IB again and her sole interest was knowing where her child was and that she was safe.

No automatic right

In her decision, Lady Wise observed generally: “In the absence of any specific provision to the contrary, a parent whose child is subject to a CSO will have information about their child including the address at which that child is resident. There are no doubt circumstances in which it may be necessary specifically to prohibit disclosure to a parent or a third party of the address at which a child is residing. The default position, though, is that a parent will know the location of a child not living with them.”

She continued: “In terms of Convention rights, it was not disputed ultimately that the petitioners’ Article 8 rights to private life were engaged in this case to the extent that their desire to adopt IB was sufficient for that. However, engagement of those Article 8 rights affords those such as the petitioners only with a qualified right that must be balanced against competing interests. I reject the proposition that mere engagement of an Article 8 right bestows on those such as the petitioners an automatic right to attend and participate in the children’s hearing.”

On whether the petitioners ought to have appeared at the hearing, Lady Wise said: “The difficulty with the petitioners’ first challenge is its suggestion that the chairing member ought to have considered it necessary to hear from them about their Article 8 rights when none of the information before the children’s hearing indicated that those rights were at issue. I conclude that there is nothing in the material to support the suggestion that it was irregular, unlawful or wrong for the chairing member not to defer consideration of the matter of non-disclosure of the address to a separate reconvened hearing.”

She concluded: “This was not a case where those who had put themselves forward to care for the child had indicated that they were only willing to do so if their anonymity could be guaranteed in terms of non-disclosure of their names and address. That question was specifically asked and answered in the course of the hearing. In the absence of written reasons the petitioners were left in the same situation as they would have been had written reasons been given. The justice of the proceedings was not compromised.”

For these reasons, the petition was refused.