Update June 2002


Freeing Orders and Fathers who are not Parents

The unmarried father always has been more trouble than he is worth and he really ought to be abolished as soon as possible.  This was illustrated yet again in three recent adoption cases.  It will be recalled that under the Adoption (Scotland) Act 1978, s. 65(1), “parent” is defined to mean the mother or the father who has parental responsibilities and parental rights; and that under the Children (Scotland) Act 1995 parental responsibilities and parental rights are conferred on all mothers but only those fathers who are or have been married to the mother, who have a court order conferring such responsibilities and rights on them, or who have persuaded the mother to sign a s. 4 agreement to share such responsibilities and rights.  The result is that the father who has neither married the mother nor obtained a court order or a s. 4 agreement is not a parent and has no right to be heard in the adoption process.  But an awkward situation can arise if such a father attempts to become a parent by any of these means during the adoption process.


In G v. City of Edinburgh Council (2002 SLT 828, IH) a local authority petitioned the court for a freeing order in relation to a child whose parents were unmarried but whose father had raised proceedings seeking to have parental responsibilities and parental rights conferred upon him.  In a freeing case that brought into play the clumsy little provision contained in s. 18(7) of the 1978 Act, under which a court must satisfy itself, before making a freeing order, that any person claiming to be the father has no intention of applying for parental responsibilities and parental rights, or if he does have such an intention that it is likely he would be refused, and that he has no intention of entering into a s. 4 agreement with the mother, or, if he does have such an intention, that such an agreement is unlikely to be made.  This is designed to ensure that if an unmarried father is “likely” to become a parent and thereby obtain parental responsibilities and parental rights before the making of the adoption order then the right to be heard that he would thereby acquire is not prematurely prejudiced.  In the present case the sheriff held that the unmarried father was unlikely to obtain responsibilities and rights and he made the freeing order.  The father then appealed the decision that he was not likely to obtain responsibilities and rights but Sheriff Principal Nicholson held (2002 SLT (Sh. Ct. 58) that the appeal was incompetent on the basis of the father’s lack of title.  Basically, the Sheriff Principal was holding that the unmarried father only had title (both to be heard at first instance and to take an appeal) if the court held it “likely” that he would obtain responsibilities and rights.  This would have the effect of rendering a decision that a man is “unlikely” unappealable, which is an inherently suspicious outcome.  The Court of Session overruled the Sheriff Principal, holding that if a father has locus to be heard as to whether he is “likely”, then he has locus to appeal a decision that he is “unlikely”.


Sheriff Principal Nicholson also and interestingly speculated what would happen if the court held that it was in fact “likely” that the father would obtain responsibilities and rights.  The Act does not actually tell us  -  it merely requires that the court be satisfied that the father is not likely to obtain responsibilities and rights.  The Sheriff Principal concluded that the appropriate course would be to adjourn the freeing proceedings to await the father’s obtaining of responsibilities and rights; but at least as plausible is the conclusion that the freeing order should at that point simply be refused on the ground that the statutory conditions for its granting have not been met.  The Inner House did not discuss the point, other than accepting (para. 9) that “there is some obscurity” in the statutory provisions.


In North Lanarkshire Council v. AW (April 4, 2002, Sheriff IC Simpson) the father proposed to become a parent by marrying the mother before the freeing order was made.  Sheriff Simpson referred to Sheriff Principal Nicholson’s views in G v. City of Edinburgh but doubted whether it would be practicable to adjourn proceedings, particularly if the parties repeatedly “threatened to marry” (in the sheriff’s wonderfully revealing words) without ever actually going through with the threat.  The sheriff held that in the circumstances before him he ought to make a decision as to whether he would grant the father parental responsibilities and parental rights had a s. 11 order been sought, and only adjourn the hearing on the freeing petition if he considered it likely that he would.  In other words, he imported the philosophy of s. 18(7) concerning a father attempting to become a parent to the one situation to which that provision does not apply.  Since he held that it would be “unlikely”, the sheriff found that the father had no locus in the case, notwithstanding the “threat” to marry the mother.


In West Lothian Council v. M and Others (May 10, 2002, Inner House), another freeing case, the father became a parent a year after the termination of contact between the children and their parents, this time by entering into a s. 4 agreement.  It is an unattractive feature of s. 4 agreements (observed previously in England) that a disturbingly high percentage of them concern not the nice, stable cohabitants for whom they were designed but volatile and erratic parents who have had their children removed into local authority care and who can cause extra difficulties by requiring, through the agreement, the local authority to deal with two awkward people instead of one.  In the present case, having become a parent as well as a father, the father’s consent to the freeing order needed to be dispensed with.  The sheriff held that his consent could be dispensed with both because it was being unreasonably withheld and also because of his failure to fulfil parental responsibilities.  On the former ground the Inner House agreed, but on the latter the sheriff was overruled.  The father did not have parental responsibilities until he became a parent and he did not become a parent until after his children had been removed from his care and his contact with them had been terminated.  He could not, therefore, be accused of failing to fulfil those responsibilities that the law did not require of him.


Another issue that arose in this case was whether the freeing process was inconsistent with the ECHR.  (In fact, the issue was not directly relevant since the original order had been made six months before the Human Rights Act 1998 came into force).  The perceived problem was that, unlike with an adoption order, there is no statutory mechanism by which a freeing order can be made subject to any conditions, such as contact.  The parents argued that their inability to seek to preserve their contact with their children through a condition attached to a freeing order was a breach of their right to respect for family life.  Lord Reed expressed the view that if the inability to make a freeing order without a condition of contact were indeed incompatible with the ECHR (which he did not hold) then the freeing order “should not be made” (para 11).  This is careful language.  As the issue was not live in the present case Lord Reed made no definitive decision, but it may well be that not only should not the court make the order but it cannot do so.  If a freeing order without conditions is contrary to the ECHR then the court, being a public authority and so barred from acting contrary to the ECHR, is barred from making the order, for there is no countervailing statutory requirement that the order be made.  Whether a declaration of incompatibility is in addition necessary may be open to doubt  -  there is no requirement that the freeing process be pursued by the local authority (another public authority, be it remembered) and little is lost by avoiding it completely.  If a local authority wants to acquire parental responsibilities and parental rights before the full adoption order is made, they have the choice of doing so by means of either a freeing order under s. 18 of the 1978 Act or a parental responsibilities order under s. 86 of the 1995 Act.  The latter does not only permit conditions of contact to be attached but requires contact to be allowed (subject to the sheriff’s power to make such order in relation to contact as he considers appropriate: s. 88(3)).


Whether courts will simply not apply provisions considered contrary to the ECHR and thereby avoid the need for declarations of incompatibility remains to be seen; whether the legislature finally abolishes the unmarried father depends upon political will to stand up to those who consider his continued existence an essential bulwark in the law’s efforts to bolster marriage.


Kenneth McK.  Norrie

University of Strathclyde