LO, Re Petition for Adoption under the Adoption and Children (Scotland) Act 2007 By N & C [2017] ScotCS CSIH_14 (16 February 2017)

LO, Re Petition for Adoption under the Adoption and Children (Scotland) Act 2007 By N & C [2017] ScotCS CSIH_14 (16 February 2017)

The sheriff and sheriff principal failed to properly apply the statutory incapacity test under section 31(4), conflated welfare considerations with incapacity, did not make adequate findings of fact, and failed to consider alternatives to adoption. The adoption order was therefore unlawful and must be recalled.

Citation
[2017] ScotCS CSIH_14
Parties
Appellant: LO; Respondents: N and C
Jurisdiction
Scotland
Judgment Date
16 February 2017
Procedural Posture
Adoption Appeal / Appeal From Sheriff Principal to Inner House
Outcome
appeal allowed; adoption order recalled; petition refused
Legal Topics
Adoption, Dispensation of Parental Consent, Parental Rights and Responsibilities, Necessity Test, Article 8 ECHR
Family Law Child Law Human Rights Adoption Dispensation of Parental Consent Parental Rights and Responsibilities Necessity Test Article 8 ECHR

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Parties

LO

Appellant

N and C

Respondents

Procedural Posture

Adoption Appeal / Appeal From Sheriff Principal to Inner House

Legal Issues

  1. 1 Whether the sheriff and sheriff principal erred in law in dispensing with LO's consent to adoption under section 31(4) of the Adoption and Children (Scotland) Act 2007
  2. 2 Whether the statutory incapacity test was properly applied
  3. 3 Whether adoption was necessary and proportionate under ECHR Article 8

Ratio Decidendi

The sheriff and sheriff principal failed to properly apply the statutory incapacity test under section 31(4), conflated welfare considerations with incapacity, did not make adequate findings of fact, and failed to consider alternatives to adoption. The adoption order was therefore unlawful and must be recalled.

Court Disposition

appeal allowed; adoption order recalled; petition refused

Orders

  • Recall the Adoption Order made by the sheriff under section 29 of the Adoption and Children (Scotland) Act 2007
  • Recall the order terminating the Compulsory Supervision Order under section 36 of the 2007 Act