The Supreme Court decision In the matter of EV (A Child) (No 2) (Scotland) is of significant importance and here is why we think so.
The threshold test must be at the forefront of the Local Authority’s mind from the outset. The Supreme Court is clear that a risk of serious detriment is not sufficient in itself. The Local Authority must prove its case. Crucially the Local Authority must address the three following issues through explanation and evidence:
In our experience, the Scottish courts do pay due heed to this test in making a decision to grant a permanence order. To that end, we do not consider that the Supreme Court’s decision should have much of an impact on how this test is considered by the courts in making a decision, but it certainly will have an impact on how decisions are written by Sheriffs and Judges. As discussed in the Inner House Appeal, the Lord Ordinary in making his decision at first instance, well understood and applied this test in making his decision; however, the delivery of his written judgement and reasoning did not convince the Supreme Court that this was indeed the case.
There is an obligation on a Local Authority to prove their case. This is important both for allegations made against a parent and for the capacity of a parent to look after the child.
In the majority of care cases, allegations in some form or another are made against a parent of a child and may have instigated the child being placed in care by Social Work in the first place. In some cases the allegations against a parent are unsubstantiated or not proven in any other context when that decision is taken by Social Work.
In stark contrast, we have seen a number of high profile tragic cases where a lack of action by Social Workers to investigate thoroughly allegations made to them have led to tragic consequences. In the cases of Liam Fee, Mikaeel Kumar and Baby P in England, Social Workers have been widely criticised for their lack of intervention.
Whilst the Lord Ordinary focused on the view that the Social Work department was justified in proceeding with an application for a permanence order based on the unsubstantiated allegations made, the Supreme Court was clear in its disagreement on this point and that this justification did not in itself without relevant findings in fact, meet the legal test his Lordship was to apply.
In our view the impact of this part of the Supreme Court’s decision will be significant. Allegations against parents will need to be properly substantiated and evidenced if they are to be sufficiently relied upon in trying to meet the threshold test.
Applications for permanence orders may be delayed whilst allegations are dealt with on a formal footing and, in some cases, properly proven in a criminal context. This may result in many children being stuck in the Children’s Hearing system for longer than before.
Another fallout from this case may be in respect of parenting capacity assessments. As a general matter of good practice, a parenting capacity assessment should be carried out on any parent seeking the rehabilitation of their child to their care at an early stage. For a many number of reasons, these assessments can be unsuccessful or incomplete.
The message from the Supreme Court is clear that the onus is not on a parent to show they have the necessary parenting skills to parent the child, but rather for the Local Authority to assess and prove they do not have the capacity to parent the child. Where a parent does not have the capacity to parent a child, the Local Authority then needs to address the risks to the child in staying in the care of that parent and whether such risks can be properly mitigated through the provision of proper support to the parent.
Without such an assessment being carried out, the Local Authority will be on the back foot. Therefore, parenting capacity assessments should be completed at the earliest opportunity. If it is not possible for such an assessment to proceed, for example due to a lack of engagement by the parent, then this should be accurately reflected in Social Work records and sworn to in Affidavit evidence presented to the court. This may be an ongoing process right up to the permanence order being considered by the court.
We would also envisage further challenges of to the granting of a permanence order on this basis under Article 8 of ECHR.
In its conclusions, the Supreme Court was clear that West Lothian Council could make a fresh application for a permanence order in respect of child EV. It also left open the door to this application being with the authority for the child to be adopted, which was, of course, the basis of the first decision.
As part of this, West Lothian Council will need to investigate fully the allegations against the parents, if they still consider them relevant to their ability to care for EV, and readdress the issue of parenting capacity. Both of these matters must be related to the specific care needs of EV.