ANS & Anor v ML

Summary

Trinity Term
[2012] UKSC 30
On appeal from: [2011] CSIH 38

JUDGMENT

ANS (Respondent) and another v ML (AP) (Appellant) (Scotland)

before

Lord Hope, Deputy President
Lady Hale
Lord Wilson
Lord Reed
Lord Carnwath

JUDGMENT GIVEN ON

11 July 2012

Heard on 21 and 22 May 2012

Appellant Lord Davidson of Glen Clova QC Maria Clarke (Instructed by Drummond Millar LLP)		Respondent Morag B Wise QC Catherine Dowdalls (Instructed by JK Cameron)

		Respondent Gerry J B Moynihan QC Alastair J Duncan (Instructed by The Scottish Government Legal Directorate )

LORD REED (WITH WHOM LADY HALE AND LORD WILSON AGREE)

The issue in this appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is within the legislative competence of the Scottish Parliament. It is contended on behalf of the appellant that the provision is incompatible with the Convention rights set out in Schedule 1 to the Human Rights Act 1998, that section 29(2)(d) of the Scotland Act 1998 therefore applies, and that the provision is accordingly not law.

The issue has arisen in the course of adoption proceedings in the Sheriff Court, in circumstances to which I shall return. The sheriff decided to refer the issue to the Inner House of the Court of Session, in accordance with paragraph 7 of Schedule 6 to the Scotland Act. The Inner House held that the provision was not incompatible with the Convention rights and was within the legislative competence of the Parliament: ANS and DCS v ML [2011] CSIH 38, 2012 SC 8. The present appeal is brought against that decision, in accordance with paragraph 12 of Schedule 6.

The appellant is the mother of the child who is the subject of the adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. The second respondent is the Lord Advocate, who has become a party to the proceedings in order to defend the lawfulness of the provision in issue.

The legislation

Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (1) provides that an adoption order may not be made unless one of five conditions is met. The first condition is set out in subsection (2):

"(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied—

(a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or

(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3)."

Put shortly, the first condition will therefore be met where the court is satisfied that each parent or guardian of the child consents to the making of an adoption order,…

JUDGMENT

11 July 2012

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