ANS & Anor v ML [2011] ScotCS CSIH_38 (21 June 2011)

ANS & Anor v ML [2011] ScotCS CSIH_38 (21 June 2011)

Section 31(3)(d) of the Adoption (Scotland) Act 2007, properly construed, imposes a high and imperative test for dispensing with parental consent, namely that the welfare of the child requires it. This is consistent with Article 8 ECHR, international conventions, and Strasbourg jurisprudence, and is within the legislative competence of the Scottish Parliament.

Citation
[2011] ScotCS CSIH_38
Parties
Petitioners: ANS and DCS; Respondent: ML; Intervener: Lord Advocate
Jurisdiction
Scotland
Judgment Date
21 June 2011
Procedural Posture
Reference From Sheriff Court in Adoption Petition / Inner House, Court of Session – Opinion on Devolution Issue
Outcome
Referred question answered in the affirmative; section 31(3)(d) is within legislative competence and Convention-compliant.
Legal Topics
Adoption, Parental Consent, Devolution Issues, European Convention on Human Rights, Child Welfare, Legislative Competence
Family Law Constitutional Law Human Rights Law Adoption Parental Consent Devolution Issues European Convention on Human Rights Child Welfare +1 more

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Parties

ANS and DCS

Petitioners

ML

Respondent

Lord Advocate

Intervener

Procedural Posture

Reference From Sheriff Court in Adoption Petition / Inner House, Court of Session – Opinion on Devolution Issue

Legal Issues

  1. 1 Whether section 31(3)(d) of the Adoption (Scotland) Act 2007 is compatible with Article 8 ECHR (right to respect for family life) and thus within the legislative competence of the Scottish Parliament.

Ratio Decidendi

Section 31(3)(d) of the Adoption (Scotland) Act 2007, properly construed, imposes a high and imperative test for dispensing with parental consent, namely that the welfare of the child requires it. This is consistent with Article 8 ECHR, international conventions, and Strasbourg jurisprudence, and is within the legislative competence of the Scottish Parliament.

Court Disposition

Referred question answered in the affirmative; section 31(3)(d) is within legislative competence and Convention-compliant.

Orders

  • Remit to the sheriff to proceed as accords.