A & Ors (Children : Scottish adoptions)

Factual and Procedural Background

This opinion addresses preliminary points arising from a number of adoption cases involving children residing in England with prospective adoptive parents, where Scottish Sheriffs have made permanence orders granting authority to adopt under the Adoption and Children (Scotland) Act 2007. The English courts are tasked with determining the effect of these Scottish orders on English adoption proceedings, specifically regarding parental consent and the involvement of natural parents in the English adoption process.

The cases involve six children taken into care by various Scottish local authorities and placed with prospective adopters in England. Applications for adoption orders were made in English Family Courts across Newcastle, Blackburn, and Carlisle. The Scottish permanence orders dispense with parental consent and vest parental responsibilities and rights primarily in local authorities, with varying provisions for parental contact. The cases were listed for a joint hearing to resolve common legal issues.

Legal Issues Presented

1. Whether the English court should recognise Scottish permanence orders granting authority for adoption.
2. Whether the English court must obtain the consent of the natural parents before making an adoption order when a Scottish permanence order exists.
3. Whether natural parents retain status as "parents" with parental responsibility under the English Adoption and Children Act 2002 after a Scottish permanence order.
4. Whether natural parents should be joined as parties to or notified of the English adoption proceedings.
5. The effect of sections 81 and 82 of the Adoption and Children (Scotland) Act 2007 on parental responsibilities and rights.
6. Directions for completion of reports concerning birth parents’ circumstances.
7. The need for expert evidence of Scottish law.
8. Procedural matters including filing dates and listing of final hearings.

Arguments of the Parties

Appellant's Arguments

• Scottish permanence orders with authority to adopt should be recognised and given effect in English courts as mandated by section 105(2) of the Adoption and Children Act 2002.
• The English court does not need to obtain parental consent again where a Scottish permanence order with authority to adopt exists, as parental consent issues have been conclusively dealt with in Scotland under the 2007 Act.
• Natural parents do not retain parental responsibility under English law once a Scottish permanence order extinguishes most parental responsibilities and rights, except limited contact rights.
• Natural parents who retain contact rights should be joined in proceedings only to address future contact, not to oppose the adoption.
• Scottish local authorities should be treated as adoption agencies under English law for the purpose of providing reports and assisting the court, despite being organs of Scottish government.

Appellee's Arguments

• Recognition of Scottish orders is appropriate and required by statute and common law principles.
• Parental consent need not be reconsidered by English courts when a permanence order granting authority to adopt exists.
• Parental responsibility under English law is a broader concept than Scottish parental responsibilities and rights; contact alone does not amount to parental responsibility.
• Natural parents without parental responsibility are not automatic respondents and need not be notified or joined unless discretionarily ordered for contact matters.
• Scottish local authorities have statutory obligations under English law to assist the court and provide reports in adoption proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the English court’s jurisdiction to make adoption orders in cases where Scottish permanence orders granting authority for adoption exist, pursuant to section 47(6)(a) and section 105(2) of the Adoption and Children Act 2002. The court held that these statutory provisions explicitly require the English court to recognise and give effect to Scottish permanence orders.

Central to the reasoning was the interpretation of section 47(6)(a) which, read with section 47(1), establishes that the existence of a Scottish permanence order with authority to adopt is the sole jurisdictional fact required for the English court to make an adoption order. Unlike other conditions under section 47, there is no scope for parental opposition or leave to oppose in this context, reflecting that parental consent issues have been conclusively resolved by the Scottish court under the 2007 Act.

The court analysed the concept of parental responsibility, distinguishing the Scottish statutory framework which separates "parental responsibilities" and "parental rights" from the English concept which consolidates these under "parental responsibility" as defined in section 3 of the Children Act 1989. The court found that the limited residual parental contact rights retained by natural parents under Scottish permanence orders do not amount to parental responsibility under English law.

Consequently, natural parents subject to such Scottish orders do not qualify as "parents" with parental responsibility for the purposes of the 2002 Act, and thus their consent is not required, nor are they automatic respondents or entitled to oppose adoption orders in English proceedings.

Regarding procedural participation, the court endorsed a discretionary approach whereby natural parents retaining contact rights should be joined in English proceedings solely to address future contact arrangements, with clear communication that their role is not to oppose adoption but to participate on contact issues.

The court also addressed the status of Scottish local authorities, concluding that for the purposes of the 2002 Act and Family Procedure Rules, these authorities qualify as "adoption agencies" and must be joined to proceedings and comply with obligations to provide reports and assist the court, notwithstanding their Scottish governmental status.

The court declined the need for formal expert evidence on Scottish law, relying on submissions and statutory materials, as the ultimate question concerns the effect of Scottish orders under English law.

Holding and Implications

HOLDING: The English court must recognise Scottish permanence orders granting authority for adoption and is not required to obtain the consent of natural parents again when making an adoption order under section 47(6)(a) of the Adoption and Children Act 2002. Natural parents subject to such orders do not retain parental responsibility under English law and therefore are not automatic parties or respondents in English adoption proceedings. However, natural parents retaining contact rights should be joined at the court’s discretion solely for the purpose of addressing future contact arrangements. Scottish local authorities are to be treated as adoption agencies under English law and must comply with procedural obligations.

Implications: This decision clarifies the relationship between Scottish and English adoption legislation, ensuring that adoption processes initiated in Scotland with permanence orders are effectively given full legal effect in England without duplicative parental consent requirements. It establishes that residual parental contact rights under Scottish orders do not constitute parental responsibility in England, impacting procedural rights and participation of natural parents. The ruling also confirms the procedural role of Scottish local authorities in English adoption proceedings. No new precedent is set beyond the direct effect on the parties and procedural practice; however, the court emphasises the need for updated procedural forms and rules to reflect these arrangements.