The President of the Family Division, the most senior family judge in England and Wales, has recently deliberated in a couple of cases which have raised potentially knotty problems where children have been involved in the Scottish care system and then placed for adoption in England. It is well known that, whilst the UK is of course one country, England and Scotland have very different legal systems.

Farleys were involved in the most recent case in which the President considered in this area of law.

We acted for Scottish parents whose children had come to the attention of their Local Authority due to concerns as to their ability to provide adequate care. Their 2 children had been living away from them for a couple of years, but the children were subject only to a Compulsory Supervision Order in Scotland.  There had been no application for a permanence order with authority to adopt, which meant that the issue of the parents’ consent or opposition to the adoption had not been considered by a court.

The children were then placed by the Scottish authority in England with prospective adopters who applied to the Family court in England to adopt. The case called for careful consideration of the interaction between the Scottish and the English legislation.

The hearing before the President is reported as Re A and O (Children – Scotland) [2017] EWHC1293 (Fam).

After hearing complex legal submissions, the President decided that The Family Court in England had jurisdiction to hear this application for an adoption order:

It did not matter whether or not the children were habitually resident in England as jurisdiction is based on the domicile or habitual residence of the proposed adopters. Also the Family Court in England could dispense with parental consent to adoption if the welfare of the child required this even though the parents were not habitually resident in England.

Although the Scottish authority had not obtained a Permanence Order in Scotland prior to the placement, the requirements of English law regarding placement by an adoption agency – the Scottish authority had acted in this capacity – were satisfied.

It was for the English Family Court to apply the welfare checklist from the Adoption and Children Act 2002 Act in deciding whether adoption was in the children’s best interests and to decide whether the children’s welfare required that the need for parental consent to adoption be dispensed with. This would involve the Court considering the claims by the parents that their lives had improved substantially since the children had been removed.

The President considered the inconvenience and practical implications of the parents having to deal with litigation in England. Whilst he declined to conclude that the case should be heard in Scotland, having regard to the fact that the parents would have to travel a significant distance for hearings in England, he suggested that the Scottish Authority should pay for the parents’ travel and accommodation for attendance at any final hearing in England.

The President also recommended that where there was an application to the English Family Court for adoption relying on a Scottish order, the papers should be referred to the Designated Family Judge at the outset to consider whether the Scottish authority should be joined into the case at that early stage.

If you are looking into the possibility of adopting between England and Scotland, be sure to seek legal advice. To speak to a member of the family law team at Farleys Solicitors for comprehensive legal advice, please call 0845 287 0939 or submit your enquiry online.