The Threshold Test for a Permanence Order - The City of Edinburgh Council v GD [2018] CSIH 52

Part 2 of the Adoption and Children (Scotland) Act 2007 (“the Act”) concerns the making of “permanence orders” whereby parental rights and responsibilities are vested in a local authority and in certain cases authority is granted for a child to be adopted. Section 84(5)(c)(ii) of the Act provides that before a permanence order can be made the court must be satisfied that the child’s residence with his/her parent(s) “is or is likely to be seriously detrimental to the welfare of the child.” This has become known as the “threshold test” and it must be met before a permanence order can be made. The recent decision of the First Division of the Court of Session in The City of Edinburgh Council v GD [2018] CSIH 52 has clarified the time at which the threshold test is to be applied.

In GD the child concerned, SD aged 4, at the time of the application for the permanence order, had been taken into care because he had suffered proven non- accidental injuries. A finding by a Children’s Hearing that SD had been the victim of culpable and reckless conduct involving bodily injury was accepted by both parents and deemed established. Only one or both of the parents had the opportunity to inflict the injuries but both parents denied knowing how SD had suffered his injures despite having accepted the ground. The child having been taken into care, the local authority decided to apply for a permanence order with authority to adopt.

The father opposed the application. The mother did not oppose it. The subsequent proceedings before the Sheriff, the Sheriff Appeal Court and the First Division raise other legal issues of some importance but the present focus is on the approach taken to the threshold test set out in Section 84(5)(c)(ii) of the Act.

The Sheriff approached the issue of the threshold test by basing his decision on all the relevant information before the court at the time of the decision. By then, for example, the father of the child, on whom the Sheriff made some favourable comments, had indicated that he would be prepared to be the child’s sole carer and that eventually had not been properly assessed by the local authority. The application was therefore refused.

The Sheriff Appeal Court disagreed and held that the threshold test was to be met by reference to the circumstances at the time when a child was removed from the parents’ care. The threshold test on that approach had been met because at the point at which SD had been taken into care his residence with his father was seriously detrimental for the purposes of Section 84(5)(c)(ii). The Sheriff Appeal Court concluded that the other tests that were to be met had been satisfied and made the permanence order with authority to adopt.

Although in the First Division there was disagreement as to what the outcome should be, the three judges (Lord President Carloway, Lord Menzies and Lord Malcolm) were unanimous as to when the threshold test was to operate. Agreeing with the Sheriff, the First Division held that the test was to be applied at the time the decision on the permanence order was being made, and not at an earlier point such as when the child was removed from his parents’ care or at the date of the application for a permanence order. That meant that the Sheriff Appeal Court’s reasoning when considering the threshold test was wrong in law. However, the majority (Lord President Carloway and Lord Menzies) concluded that the Sheriff Appeal Court had reached the correct decision on the known facts and upheld its decision to grant the permenance order with authority to adopt. Lord Malcolm disagreed and concluded that it was not open for the First Division as a court of appeal to disagree with the Sheriff on the issue of fact.

What the decision highlights for practitioners of family law is the importance of the need to explore the position of a parent who wants to oppose the granting of a permanence order after a child has been taken into care. A parent who, for example, was a drug addict and guilty of neglecting a child may, after the child has been taken into care, obtain treatment and undergo significant lifestyle changes. Such evidence will now be highly relevant to the application of the threshold test. The client who seeks advice on opposing an application for a permanence order that seeks authority for adoption, and whose child has been taken into care because of neglect caused by lifestyle deficiencies, will need to be advised that addressing these lifestyle deficiencies will be important to any prospect of success.

The Drummond Miller family team is extremely experienced in dealing with all aspects of family law, including parental rights and responsibilities and disputes regarding children. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Glasgow, Dalkeith, Musselburgh and Bathgate.