Factual and Procedural Background
This opinion concerns an application by the Petitioner for authority to adopt the child EO, who was born on 17 September 2016. EO is currently subject to a Compulsory Supervision Order and resides with the Petitioner, with letterbox contact arranged with the Respondents, EO's natural parents. The Respondents oppose the adoption. The case arises from a history of child protection proceedings following findings of abuse and neglect involving EO's siblings and the Respondents. EO has not lived with the Respondents since removal at approximately five months old. The Respondents have engaged in multiple legal challenges, including appeals and jurisdictional disputes, all of which have been resolved in favour of the Scottish courts maintaining jurisdiction and continuing protective measures. The Petitioner, who is care experienced and shares cultural and religious background with EO, has cared for EO since December 2021. The case proceeded to proof, with evidence from social workers, the Petitioner, and other witnesses, including expert reports and opinions from both Scottish and Italian professionals. The core issue is whether the adoption order should be granted and whether the Respondents' consent should be dispensed with.
Legal Issues Presented
- Whether the court should grant the adoption order under the Adoption and Children (Scotland) Act 2007 ("the 2007 Act").
- Whether the consent of the Respondents to the adoption order should be dispensed with pursuant to the statutory grounds, specifically under section 31(4) (incapacity ground) or, alternatively, section 31(3)(d) (welfare ground) of the 2007 Act.
- The application and interpretation of the paramount welfare principle in adoption proceedings, including the necessity test that "nothing else will do".
- The consideration of alternatives to adoption and their adequacy in safeguarding and promoting EO's welfare.
- The impact of international law and foreign recognition, particularly the recognition of a Scottish adoption order in Italy.
Arguments of the Parties
Petitioner's Arguments
- The Petitioner is a credible and reliable witness with a strong personal and cultural connection to EO.
- The Respondents are unable and likely to continue to be unable to satisfactorily discharge their parental responsibilities and exercise their parental rights, fulfilling the incapacity ground under section 31(4) of the 2007 Act.
- In the alternative, the welfare ground under section 31(3)(d) applies, as EO's welfare requires that the Respondents' consent be dispensed with.
- EO has thrived in the Petitioner’s care, forming a secure attachment and benefiting from a stable family unit consistent with his cultural and religious background.
- Alternatives to adoption, such as continuing the compulsory supervision order or granting residence orders, are insufficient to provide EO with the lifelong security and parental relationship he needs.
- The Respondents have failed to engage meaningfully with social work, parenting assessments, contact arrangements, and have engaged in protracted litigation causing instability.
- Despite concerns expressed by social workers and the reporter, the Petitioner is open to indirect contact (letterbox) if it is not harmful or confusing to EO.
- The adoption order sought is necessary to safeguard and promote EO’s welfare throughout his life; nothing less will suffice.
Respondents' Arguments
- The initial removal of EO was disproportionate and unjustified, possibly violating Article 8 of the European Convention on Human Rights (ECHR).
- EO's continued detention is challenged as unlawful, with an asserted positive duty to reunify EO with the Respondents.
- The allegations against the Respondents do not sufficiently meet the incapacity ground under section 31(4); EO was not directly abused, and the allegations require contextual consideration.
- The welfare ground under section 31(3)(d) should not be met; adoption is a serious intervention requiring necessity, and less draconian options should be considered.
- The United Nations Convention on the Rights of the Child (UNCRC) applies and requires the court to prioritize the best interests of EO, including maintaining family ties where possible.
- A Scottish adoption order may not be recognized in Italy, leading to a "limping adoption" with adverse effects on EO’s nationality, family status, and identity.
- Alternatives to adoption under English and Italian law, including special guardianship orders and child arrangement orders, should be considered.
- The court should consider procedural and jurisdictional issues, including the Vienna Convention on Consular Relations, and the challenges posed by international recognition of adoption orders.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| S v L [2012] UKSC 30 |
Interpretation of section 31 of the 2007 Act; high test of necessity for dispensing with parental consent; welfare as paramount consideration. |
Guided the court on the statutory framework and the necessity test for dispensing with parental consent under the welfare ground. |
| S, Petitioner [2014] CSIH 42 |
Clarification of incapacity and welfare grounds under section 31; fact-finding and application of Article 8 ECHR considerations. |
Supported the court’s approach to distinguishing incapacity and welfare grounds and the role of Article 8 in the welfare ground. |
| Fife Council v M 2016 SC 169 |
Application of incapacity and welfare grounds; necessity test; holistic welfare evaluation. |
Affirmed the approach to dispensing with consent and the requirement of a comprehensive welfare evaluation. |
| In re B (A Child) (Care Proceedings) [2013] 1 WLR 1911 |
Necessity test for severing parent-child relationship; "nothing else will do" principle. |
Informed the court’s understanding of strictness and proportionality in adoption decisions. |
| North Lanarkshire Council v KR [2018] CSIH 59 |
Holistic evaluation of welfare; assessment of alternatives; avoidance of unnecessary delay. |
Reinforced the need for a global evaluation of care options and avoiding delay in adoption decisions. |
| LO v N [2017] CSIH 14 |
Requirement for proper evidence addressing all realistic options; consideration of alternatives to adoption. |
Emphasized evidential standards and consideration of less draconian measures. |
| West Lothian Council v MB [2017] UKSC 15 |
Judge’s role as primary decision maker; balance of probabilities for future harm predictions. |
Supported the court’s approach to fact-finding and evidential burden in adoption proceedings. |
| Re AJ (Child) [2007] EWCA Civ 55 |
Differences between adoption and special guardianship orders under English law. |
Referenced in considering alternatives to adoption and their implications. |
| In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 |
Concept of "limping adoption" orders and cross-border recognition issues. |
Informed the court’s consideration of the implications of Italian recognition of Scottish adoption orders. |
Court's Reasoning and Analysis
The court began by assessing the credibility and reliability of the evidence, accepting the unchallenged and consistent testimony of the social workers and the Petitioner, while expressing reservations about the Respondents' evidence and that of their eldest child. The court accepted the established grounds of referral and supporting facts found by Sheriff McCartney, including serious and sustained abuse of EO's siblings and the Respondents' lack of insight into their behaviour's impact.
Applying section 31(4) of the 2007 Act, the court found the Respondents unable and likely to remain unable to satisfactorily discharge parental responsibilities and exercise parental rights, particularly regarding safeguarding and promoting EO's health, development, and welfare. This incapacity ground obviated the need to consider the welfare ground under section 31(3)(d).
The court then considered the welfare considerations under section 14 of the 2007 Act, emphasizing the paramountcy principle. EO, now eight years old, has thrived in a stable family unit with the Petitioner, who shares EO's cultural and religious background and has demonstrated a committed, informed, and child-centred approach to parenting. EO's expressed wishes to remain with the Petitioner and be legally recognized as her son were given significant weight.
The court evaluated alternatives to adoption, including making no order or granting residence orders, and found them inadequate to provide EO with the lifelong security and parental relationship necessary for his welfare. The ongoing litigation by the Respondents and their failure to engage meaningfully with EO's welfare further undermined these alternatives.
Regarding international considerations, the court acknowledged the evidence that a Scottish adoption order might not be automatically recognized in Italy and could lead to EO retaining Italian nationality and parental ties unless he renounces them. However, the court found that this uncertainty did not outweigh the clear benefits of adoption under Scottish law, particularly given EO's habitual residence in Scotland and the best interests assessment.
Balancing all factors, the court concluded that granting the adoption order was necessary and proportionate to safeguard and promote EO's welfare throughout his life. The court declined to make any order for post-adoption contact, considering the Respondents' history and the potential risks to EO's emotional wellbeing.
Holding and Implications
The court granted the adoption order in favour of the Petitioner and dispensed with the Respondents' consent pursuant to section 31(4) of the 2007 Act.
The adoption order will provide EO with lifelong legal and emotional security, establishing a stable family unit consistent with his welfare needs. The compulsory supervision order was terminated. No order for post-adoption contact was made, reflecting concerns for EO's welfare. The decision does not create new precedent but applies established legal principles in the context of complex international and cultural factors. The ruling underscores the strict but necessary approach courts must take when severing parental rights, emphasizing the paramountcy of the child's welfare and the necessity test that "nothing else will do".