Judge slams 'inept' law over beaten boy adoption failures

The boy was at the centre of a case that highlighted problems with the Adoption and Children Act, 2007. The case took almost two years to be resolved, during which time the couple who had been hoping to adopt the little boy, known only as H, became disenchanted and withdrew from the process.

Yesterday, appeal judges in the Court of Session in Edinburgh condemned the situation, and called on Holyrood to make sure there was no repeat of the botched draftsmanship that was at the root of the problem and "may have had a serious impact on the life of H".

The boy, now five, was taken into care and fostered after a series of injuries said to have been inflicted by his father.

In August 2009, Aberdeen City Council applied to the city's sheriff court to have H declared free for adoption. The move was opposed by his parents.

The following month, provisions in the 2007 Act came into effect through a "commencement order", known as the 2009 Order.

A number of hearings in H's case took place, but lawyers for the parents then raised an objection based on the order as it affected cases that had been in the system but not dealt with before the new provisions started. They argued that the case had to be halted, and a new application submitted.

The sheriff agreed that the order had been poorly drafted, but decided the case could continue. In February this year, he declared H free for adoption. The parents appealed to the Court of Session, which was told that the dispute over the order affected only a few cases but "it matters a great deal in each of them".

Lord Gill, the Lord Justice-Clerk, sitting with Lords Hardie and Marnoch, refused the appeal, holding the order could be construed in such a way as to allow the case to remain on track.

Lord Hardie voiced the judges' criticism of the "inadequate draftsmanship" of the order. "Other orders, including those containing transitional provisions, should perhaps be subject to a more rigorous regime, including the use of parliamentary draftsmen in their preparation and the scrutiny of their provisions by the legislature," he said.

"It appears the lack of parliamentary scrutiny of the 2009 Order coupled with its drafting by someone lacking the skills of a parliamentary draftsman may have had a serious impact upon the life of H. The inept draftsmanship has led to unnecessarily prolonged litigation."

A Scottish Government spokesman said: "This legislation was designed, like all family law, to act solely in the best interests of the child."