Duncan Lewis

Family Law

know matters can be both

highly sensitive and confusing

In the case of ANS and another vs. ML [2012] UKSC 30 the Supreme Court had to decide on whether a mother’s consent to an adoption could be dispensed with.

Date: (16 July 2012)    |    

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In the instant case the court decided that section 31 of the Adoption and Children (Scotland) Act 2007 was not compatible with Article 8 of the European Court of Human Rights (ECHR).
The appellant was the mother of the child who was the subject of adoption proceedings. She was opposed to the proposed adoption and refused to give consent. The respondents were the prospective adoptive parents.
The appellant challenged the lower courts order of dispensing with consent to adoption.
The dispensation of consent of adoption by the parents or the guardian is enshrined in the section 31(3) of the 2007 Act. One of the grounds that were relied on was a sub clause in sec.31 (3) d. This section is adopted when the court considers that the parent is unable to satisfactorily discharge it’s parental duty towards the child and is likely to continue to be unable to do so, or where the parent is not someone who is subject to an order removing parental responsibilities and rights and is unlikely to have such responsibilities or rights restored in the future. An adoption order may be made in these circumstances where the welfare of the child otherwise requires the consent to be dispensed with.
The Supreme Court considered the Convention rights and its applicability. The consideration was regarding the interpretation of section 3 of Human Rights Act 1998 which arises only where the legislation under ordinary principles would result in a breach of convention. When there is incompatibility between the legislation and convention then the reparability is considered by interpreting the legislation as per the requirement of section 3. In case that is also not possible then it would not be within the competence of the Scottish Parliament.
Though section 31 of the 2007 Act, the Court noted that it was premised on the need for parents to consent to the making of an adoption order section 31(2)(b) however conferred a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3).
The interpretation of words were considered keeping in view the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration with reasonable practicability and section 31(3)(d) empowered the court to dispense with the parent's consent only if it was satisfied that the welfare of the child "requires" it. The word "requires" must mean, as a matter of ordinary English, that it is necessary.
That ordinary meaning is appropriate for several reasons. First, the court will not lightly authorise the making of an adoption order against the wishes of a parent. Secondly, the 2007 Act was intended to operate in the context of the Convention rights, and the duty of courts, under section 6 of the Human Rights Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention.
The Supreme Court dismissed the appeal. The lead judgment was given by Lord Reed, with whom the other justices Lord Hope and Lord Carnwath agreed.
The contention that an order made under section 31(3)(d) was not "in accordance with the law", was rejected by the court within the meaning of article 8(2), because the provision was not clearly expressed lacking legal certainty. The interpretation was done in the light of its statutory context, and the word "requires" was considered as a test of necessity.