EO: Incapacity of Natural Parents and the Necessity-Only Adoption Order — [2025] CSOH 45

Introduction

In AD10/23 the Outer House of the Scottish Court of Session was asked to decide whether J.K. Cameron’s client (“the petitioner”) should be authorised to adopt the child EO, born 17 September 2016, and—critically—whether EO’s natural parents’ consent should be dispensed with. EO has been under compulsory supervision since February 2017, when Sheriff Cathcart removed him (and his siblings) from Court “at an undisclosed location” following overwhelming evidence of historic abuse of the older brothers. The natural parents opposed the adoption, conducted piecemeal litigation over jurisdictional issues and never co-operated with parenting assessments or maintained meaningful contact. Lord Stuart’s opinion focused on whether the statutory “incapacity” and/or residual “welfare” grounds for dispensing with consent (Adoption & Children (Scotland) Act 2007, s.31(3)–(4)) were established, and whether nothing less than adoption could safeguard EO’s welfare “throughout his life.”

Summary of the Judgment

Lord Stuart found, on the undisputed sheriff’s supporting facts, that the natural parents were:

“unable satisfactorily to discharge” parental responsibilities (e.g. to safeguard and promote health, development and welfare), and
“likely to continue to be unable to do so,”

thereby fulfilling the s.31(4) incapacity test. He dispensed with parental consent and granted— under s.30(1)—a single-person adoption order in favour of the petitioner. A global, holistic analysis of all available future-care options (including returning EO to the parents, continuing compulsory supervision, permanence without adoption, or a residence-only order) showed that only adoption would—

secure lifelong stability in a family unit with the petitioner,
give the petitioner the legal tools to make decisions (e.g. about medical care) that the parents refused, and
avoid protracted litigation that had already undermined EO’s emotional security.

Consequently, it was “better for the child that the order be made than not” (s.28(2)), and the existing compulsory supervision order was terminated.

Analysis

Precedents Cited

S v L [2012] UKSC 30 Established the high threshold for s.31(3)(d) (“welfare”)—that dispensing with consent must be “necessary,” not merely “reasonable,” and must satisfy the paramountcy principle in s.14.
S, Petitioner [2014] CSIH 42 Distinguished the “incapacity” ground (s.31(4)) from the residual “welfare” ground (s.31(3)(d)), and confirmed article 8 ECHR only engaged at the welfare stage.
Fife Council v M 2016 SC 169 Re-affirmed that once the “incapacity” ground fails for one parent, the court must only consider the “welfare” ground if that ground has not already applied.
North Lanarkshire Council v KR [2018] CSIH 59 Stressed careful “holistic” welfare evaluation, avoidance of protracted delay, and proper use of “nothing else will do” as a proportionality check.
LO v N [2017] CSIH 14 Held that less-drastic statutory powers (e.g. s.11 1995 Act residence orders) remain available if they meet the child’s needs.
West Lothian Council v MB [2017] UKSC 15 Emphasised the judge as primary fact-finder, applying the golden rule that future harm predictions must rest on proved facts.
AV & SV v AJF & IDF [2017] CSOH 103 Noted the importance of reconciling birth heritage and new family identity in adoption.

Legal Reasoning

The court’s analysis proceeded in two stages:

Threshold (“incapacity”) test under s.31(4): Did each parent have responsibilities or rights, and was each “unable satisfactorily to discharge” them and likely to remain so? Here:
- Overwhelming evidence of historic abuse.
- No parental insight or participation in parenting assessments (three separate assessments refused or aborted).
- Chronic non-attendance and confrontational contact sessions, followed by abandonment (return to Italy, no face-to-face or letterbox contact since 2020).
- Refusal to consent to essential medical treatment.
Conclusion: both parents met the incapacity ground, so s.31(3)(d) need not be reached.
No lesser alternative would secure lifelong welfare:
- Continuing compulsory supervision would perpetuate uncertainty and repeated hearings.
- A permanence order or residence-only order would leave parental rights with unco-operative parents and create ongoing legal limbo (especially as single-person residence orders terminate at age 18).
- Only adoption creates a new parent-child legal bond “throughout the child’s life,” enables the petitioner to make all necessary decisions, and insulates EO from future destabilising parental litigation.

In light of s.14(3)–(4), safeguarding & promoting welfare “paramount,” the court specifically considered:

Stable family unit: EO thrived with his foster-then-adopter; loss of stability had been traumatic.
Child’s views: EO, age 8, called the petitioner “mum” and said he wanted to live with her “forever.”
Cultural & religious background: Shared Nigerian–Christian heritage facilitated identity continuity.
Lifetime effect: Only adoption gives EO lifelong legal and emotional security.

Impact

This judgment:

Reinforces that s.31(4) incapacity will be found where parents refuse to engage with support, assessments or appropriate contact and show no prospect of change.
Confirms that adoption by a single carer is available where s.31(4) is met—even absent parental rehabilitation prospects.
Illustrates the “nothing else will do” necessity test, applied strictly after full welfare appraisal.
Signals that foreign recognition concerns (e.g. “limping” adoptions in Italy) do not deter Scottish courts from granting the necessary order for a child habitually resident in Scotland.
Emphasises the avoidance of delay, the judge’s fact-finding primacy (West Lothian gold standard), and the primacy of a comprehensive, holistic welfare judgment.

Complex Concepts Simplified

Threshold (incapacity) test: A fact-driven inquiry—are parents unable and likely to remain unable to discharge core parental responsibilities & rights? If yes, s.31(4) applies and consent can be dispensed with.
Welfare ground (s.31(3)(d)): A residual “necessity” test—only engages if incapacity/five other grounds fail; requires adoption to be indispensable for child’s welfare.
Global holistic evaluation: Compare all realistic care options—return home, supervision, permanence without adoption, adoption—against child’s welfare needs past/present/future.
“Nothing else will do”: A shorthand for proportionality/necessity: adoption must be the sole route to secure paramount welfare.
Compulsory Supervision Order: Children’s Hearing’s protective order; requires periodic reviews but does not change legal parent-child status.
“Full” vs. “Simple” adoption (Italy): Under Italian law a foreign order may need local “verification”; full adoption severs legal ties, simple adoption does not.

Conclusion

[2025] CSOH 45 makes clear that when parents demonstrate irredeemable incapacity—through historic abuse findings, refusal to engage with supports or assessments, and complete absence of meaningful contact—Scottish courts will dispense with consent under s.31(4) and authorise adoption by a suitable carer if, after a full holistic analysis, only adoption can safeguard and promote the child’s welfare throughout life. The decision reaffirms the paramountcy of welfare, the judge’s fact-finding role, and the necessity test, and it signals that practical foreign-recognition issues do not inhibit granting the order a habitually resident Scottish child requires.