ANS & Anor v ML, United Kingdom Supreme Court, Judgment, Law, casemine.com

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Attorney(S)

Appellant Lord Davidson of Glen Clova QC Maria Clarke (Instructed by Drummond Millar LLP)
Respondent Morag B Wise QC Catherine Dowdalls (Instructed by JK Cameron)
Respondent Gerry J B Moynihan QC Alastair J Duncan (Instructed by The Scottish Government Legal Directorate�)

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ANS & Anor v. ML

Smart Summary

Factual and Procedural Background

The appeal arose from adoption proceedings in the Sheriff Court concerning a child whose mother (“Appellant”) opposed adoption and withheld consent. The prospective adoptive parents (“First Respondents”) sought an order dispensing with that consent under section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”). During the proof the Sheriff referred a devolution issue to the Inner House, questioning whether section 31(3)(d) was within the legislative competence of the Scottish Parliament given the European Convention on Human Rights (“ECHR”). The Inner House held it was competent (ANS and DCS v ML [2011] CSIH 38). The Appellant appealed that decision to the Supreme Court.

Legal Issues Presented

Whether section 31(3)(d) of the 2007 Act is incompatible with Article 8 of the ECHR because it allegedly allows parental consent to be dispensed with on an imprecise “welfare” test.
Consequently, whether the provision is outside the legislative competence of the Scottish Parliament under section 29(2)(d) of the Scotland Act 1998.
Whether, if there is any incompatibility, the court can read down the provision under section 3 of the Human Rights Act 1998 (or section 101 of the Scotland Act 1998) to render it compatible.

Arguments of the Parties

Appellant's Arguments

Section 31(3)(d) applies only where a parent can satisfactorily discharge parental responsibilities; therefore, severing the parent-child bond on a broad “welfare” basis violates Article 8.
The word “requires” lacks sufficient precision; any order made under it would not be “in accordance with the law” for Article 8(2) purposes.
Section 101(2) Scotland Act demands the narrowest possible reading, but even a narrow construction cannot save the provision.
Relied on Neulinger v Switzerland to contend that family ties may only be severed in very exceptional circumstances.

Second Respondent (Lord Advocate)’s Arguments

The statutory test, properly construed, already reflects Article 8 requirements: “requires” imports necessity and proportionality.
Section 14 of the 2007 Act embeds a detailed welfare checklist that cures any alleged vagueness.
Domestic and Strasbourg authorities (e.g. In re P; YC v UK) approve an equivalent test in England & Wales; the Scottish provision is narrower.
Accordingly, section 31(3)(d) is within competence and no interpretative modification is needed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
ANS and DCS v ML [2011] CSIH 38	Inner House decision upholding competence of s 31(3)(d)	Decision under appeal; affirmed
In re S-B (Children) [2009] UKSC 17	Caution against broad welfare tests; necessity of exceptional circumstances	Illustrates gravity of dispensing with parental consent
R (Hurst) v London Northern District Coroner [2007] UKHL 13	When section 3 HRA interpretative duty is triggered	Used to show ordinary construction precedes s 3 HRA
R (Wardle) v Crown Court at Leeds [2002] 1 AC 754	Need for incompatibility before invoking s 3 HRA	Supports interpretative approach
DS v HM Advocate [2007] UKPC 36	Relationship between s 3 HRA and s 101 Scotland Act	Clarifies correct interpretative route
Principal Reporter v K [2010] UKSC 56	Examples of limited parental rights	Demonstrates scenarios where s 31(3)(d) operates
NJDB v JEG [2012] UKSC 21	Parental rights despite withdrawn contact	Illustrative of provision’s scope
AXA General Insurance Ltd [2011] UKSC 46	Statutory interpretation in light of societal values	Supports high threshold of “requires”
R v Secretary of State, ex p Simms [2000] 2 AC 115	Presumption of protection of basic rights	Informs construction of “requires”
In re P (Children) (Adoption: Parental Consent) [2008] EWCA Civ 535	Meaning of “requires” in English analogue	Relied on to equate “requires” with necessity
Johansen v Norway (1997) 23 EHRR 33	Adoption without consent only in exceptional circumstances	Cited to illustrate Strasbourg standard
R and H v UK (2012) 54 EHRR 2	Affirms overriding requirement test	Supports compatibility of Scottish test
YC v UK [2012] ECHR 433	Necessary considerations for proportionality	Parallels drawn with s 14 checklist
Neulinger v Switzerland (2012) 54 EHRR 31	Emphasis on family ties and child’s development	Appellant’s principal authority; distinguished
Kearns v France (2010) 50 EHRR 33	Primacy of child’s interests	Cited in Strasbourg extracts
K and T v Finland (2001) 36 EHRR 18	Better environment not enough to justify adoption	Part of Strasbourg overview
TS and DS v UK [2010] ECHR 2256	Limits of improving environment rationale	Referenced in proportionality discussion
Pontes v Portugal [2012] ECHR 1573	Paramountcy of child’s interests	Cited to reinforce welfare focus
Winterwerp v Netherlands (1979) 2 EHRR 387	National courts’ role in construing domestic law	Supports foreseeability analysis
Iglesias Gil v Spain (2005) 40 EHRR 3	Judicial interpretation & foreseeability	Same context as above
Slivenko v Latvia (2004) 39 EHRR 24	Domestic courts’ assessment not arbitrary	Bolsters certainty argument
Kuijper v Netherlands (2005) 41 EHRR SE 266	Acceptability of general statutory language	Applied to reject vagueness challenge
Elsholz v Germany [2000] ECHR 371	Parent cannot insist on measures harming child	Part of Strasbourg matrix
Maršálek v Czech Republic (2006) ECHR 8153/04	Child’s development paramount	Included in Strasbourg survey
Kutzner v Germany [2002] ECHR 160	Proportionality in family interventions	Referenced in Neulinger passage
Sahin v Germany (2003) 36 EHRR 43	Balancing parent and child interests	Quoted in Neulinger analysis
Maumousseau and Washington v France [2007] ECHR 880	Fair balance and margin of appreciation	Part of Strasbourg backdrop
Haase v Germany [2004] ECHR 142	Importance of maintaining contact	Cited within Neulinger extract
Gnahoré v France [2000] ECHR 420	Family ties to be preserved where possible	Mentioned in Neulinger discussion
Uyanik v Turkey [2012] ECHR 1574	Child’s interests decisive; balance of interests	Illustrates modern Strasbourg position

Court's Reasoning and Analysis

1. Statutory construction before compatibility analysis. Judge Reed emphasised that the court must first construe legislation according to ordinary principles, applying long-standing presumptions against violating international obligations. Only if incompatibility remains does section 3 HRA arise.

2. Context and purpose of s 31(3)(d). The 2007 Act replaced complicated pre-2007 consent-dispensing grounds with a simpler structure inspired by the Adoption and Children Act 2002. Parliamentary materials showed a deliberate intent to mirror Article 8 requirements.

3. Limited scope of the subsection. Unlike the English provision, s 31(3)(d) operates only where the parent is known, competent, and does not fall within the specific incapacity scenarios of subsections (4) or (5), making its reach narrower.

4. Meaning of “welfare…requires”. Read with section 14, the child’s welfare is the paramount consideration. The word “requires” imports a stringent necessity test: adoption must be the only proportionate measure capable of protecting the child’s lifelong welfare. The court must be satisfied that nothing less than adoption will suffice.

5. Consistency with Strasbourg jurisprudence. The domestic interpretation aligns with In re P, Johansen v Norway, YC v UK and related cases, all of which endorse a necessity and proportionality standard when dispensing with consent.

6. Legal certainty. Although couched in general terms, the provision is foreseeable when read in its statutory and human-rights context. The European Court accepts that family-law statutes employ broad language subject to judicial assessment (Kuijper v Netherlands).

7. Procedural observations. The Court criticised the late raising of the devolution issue, noting it prolonged proceedings to the detriment of the child and contradicted Practice Notes mandating expedition in adoption cases.

Holding and Implications

HOLDING: APPEAL DISMISSED. Section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is compatible with Article 8 ECHR and therefore within the legislative competence of the Scottish Parliament.

Implications: The decision confirms that Scottish courts can dispense with parental consent to adoption where the child’s welfare requires it, applying a strict necessity test. No new precedent was created, but the judgment consolidates alignment between Scottish legislation and Strasbourg standards and underscores the need for robust case-management to avoid delay in family proceedings.