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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell v SH [2000] ScotCS 40 (11 February 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/40.html Cite as: [2000] ScotCS 40

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The appellant, to whom we will refer as "the reporter", has appealed against a decision of the Sheriff at Kilmarnock that he had no jurisdiction to decide whether the grounds for referral in respect of an application under section 65 of the Children (Scotland) Act 1995, to which will refer as "the Act", were established. The application related to the respondent, to whom we will refer as "the child". At the time of the application she was one year old.

The circumstances out of which the appeal arises are briefly as follows. The child had normally lived at a house in Ardrossan with her mother and her brother and sister, who were born in 1991 and 1995 respectively. Each of them had been made the subject of a supervision requirement under section 70 of the Act. On 27 March 1998 the reporter received information concerning the child. Thereafter he conducted an initial investigation in accordance with section 56 of the Act. In a letter dated 12 June 1998 he intimated that he had decided to refer the case of the child to a children's hearing under section 65 of the Act. In his letter of information he gave as his reasons the grounds of referral stated in section 52(2)(e) and (f) of the Act. In support of this he stated that the child's mother had previously associated with a number of Schedule 1 offenders, that there had been concerns as to the safety of the child and that of her brother and sister, and that on 20 March 1998 the child's father had assaulted her sister in the family home. The reporter also stated that on 1 June 1998 the child's mother had advised her social worker that she had married the child's father, and that she had vacated the family home in Ardrossan and did not intend to return there. She had moved with the rest of her family, including the child, to live in Rochester, Kent. On 22 June 1998 the children's hearing took place. It was attended by the child's parents who accepted the grounds of referral. However, in view of the age of the child, the children's hearing directed, in accordance with section 65(9) of the Act, that the reporter should apply to the sheriff for a finding as to whether the grounds of referral were established. When the case came before the sheriff on 16 July 1998 he took the view that he had no jurisdiction in respect that the child had been taken to live in England after she was referred to a reporter but before it was decided to refer the case to a children's hearing for consideration and determination. This matter had not been raised before him or the children's hearing by the appellant or the child's parents. We should add that the supervision requirements in regard to the child's brother and sister were transferred to England in accordance with regulation 4 of The Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland)) (Scotland) Regulations 1996.

This appeal was initially heard on 30 June 1999, when the court was addressed by counsel for the appellant, Miss N. C. Stewart. The respondent was not represented. Thereafter, at the invitation of the court, the Lord Advocate nominated counsel to act as amicus curiae. At a further hearing on 8 December 1999 Mr Hajducki Q.C. appeared as counsel for the appellant and Mr Dewar as amicus curiae. We were informed that as at that date the child was still in Rochester with her mother.

At the initial hearing Miss Stewart had submitted that the Act contained no provision which expressly or by necessary implication limited the power of the reporter or of a children's hearing by reference to the whereabouts of the child who was the subject of the proceedings. This omission was deliberate, in order to achieve as much flexibility as possible. The only jurisdictional limit was that if one of the grounds for referral was that the child had committed an offence, the application required to be made to the sheriff who would have jurisdiction if the child were being prosecuted for that offence. Unlike Miss Stewart, Mr Hajducki accepted that a children's hearing would not have power to make a supervision requirement in the case of a child who had never been in Scotland. However, in order to give the children's hearing the necessary power, it was enough if the child was in Scotland when information was received by the reporter. He was bound to investigate the matter before it was put before the children's hearing. There was no prescribed timescale for this investigation. It was important that the reporter and the children's hearing should not be deprived of their power to decide what should be done. The purpose of the Act would be defeated if the children's hearing could lose its jurisdiction before the case came before it. It was exclusively for the children's hearing to decide whether, on the one hand, to discharge the referral (section 65(7) and (9)), or to take steps with a view to making a supervision requirement under section 70. It was open to the children's hearing to seek to have the child returned to Scotland if it considered that the only appropriate supervision requirement was one which required the child to reside in Scotland. On the other hand, the supervision requirement could, in terms of subsection (4) of section 70, specify that the child should reside at a place or places in England or Wales. In the present case, it was likely that, if the grounds for referral were established, a supervision requirement would be followed by a transfer to England under the 1996 Regulations, in the same way that the supervision requirements in respect of the child's brother and sister had been transferred. The question whether a supervision requirement would be effective or the best thing to be done was a matter which was entrusted to the judgment of the children's hearing. Likewise, it was for the children's hearing to decide whether the child should or should not be dealt with in accordance with the English system. There was no reason why for the time being, i.e. pending such a transfer, the matter could not proceed in Scotland. It was undesirable that the Act should be interpreted in such a way that, if the family returned to Scotland, it would be necessary for proceedings to be taken all over again.

It is plain that the Act does not contain any express limit to the power of a children's hearing by reference to the whereabouts of the child to whom the proceedings relate. However, a number of considerations point, in our view, to the need to imply a limit. The Act plainly provides that the responsibility for implementing its provisions rests on a number of Scottish authorities. The reporter, who is appointed for a particular area in Scotland under section 131(1) of the Local Government (Scotland) Act 1994, acts as the delegate of the principal reporter who is appointed under section 127 of that Act. If he receives information from any source about a case which may require a children's hearing to be arranged, he has to make such initial investigation as he thinks necessary (section 56(1)). For that purpose he may request a report on the child and on the child's circumstances from the local authority, which is one of the possible sources from which he may have received such information (section 56(2)). A "local authority" means a council constituted under section 2 of the 1994 Act. After initial investigation the reporter may decide that a children's hearing does not require to be arranged. In that case he may, if he considers it appropriate, refer the case to a local authority with a view to their making arrangements for the advice, guidance and assistance of the child and his family in accordance with Chapter 1 of Part II of the Act (section 56(4)(b)). It may be noted that the responsibility of a local authority for making such arrangements relates to children in the area of such an authority (see sections 19(1), 20(1), 22(1) and 29(1)). If, on the other hand, it appears to him that "compulsory measures of supervision" are necessary in respect of the child, the reporter has to arrange a children's hearing to which he refers the case for consideration and determination (section 56(6) cf. section 65(1)). Such measures are by definition ones which may be imposed on the child by a children's hearing (section 93(1)). The children's hearing system operates exclusively within Scotland. If a children's hearing proceeds to make a supervision requirement under section 70(1) it falls to "the relevant local authority" i.e. the local authority for whose area the children's panel from which the children's hearing was formed, to give effect to that requirement (section 71(1)).

It is true, as was pointed out in the course of the discussion, that the place or places at which it is required that the child should reside in accordance with the supervision requirement may be a place or places in England or Wales. However, this does not appear to us to be necessarily inconsistent with the implication that so far as the Act is concerned the child should, at the relevant stage, be in Scotland.

That this is the implication of the Act is fortified by the observations of the Lord Justice Clerk (Ross) in S. v Kennedy 1996 S.L.T. 1087. In that case it was held, having regard to the policy of the corresponding provisions of the Social Work (Scotland) Act 1968, that offences committed outwith Scotland could provide the basis for the referral to a children's hearing of a child who was in Scotland. At page 1090F-H the Lord Justice Clerk said:

There is no compelling reason why the Act should be understood as imposing a statutory responsibility in regard to a child who has never been in Scotland. As regards children in England and Wales there are statutory provisions which are designed to have the same practical effect as the type of requirements which may be imposed by a children's hearing.

For these reasons we are satisfied that the provisions of the Act in relation to the powers of a children's hearing are intended to apply to a child who is in Scotland at the relevant time, regardless of where the child was at the time of the conduct which gave rise to the need for his case to be referred to the hearing. We should add that there does not seem to us to be any need to import concepts of normal residence or habitual residence. The presence of the child in Scotland is sufficient.

The critical question in the present appeal is - What is the relevant time? As we have already noted, the submission for the appellant was that it would be contrary to the underlying purpose of the Act that the power of the children's hearing to deal with a case should be capable of being defeated by the fact that the child had been taken out of Scotland after the stage at which information came to the knowledge of the reporter. This submission was fortified by reliance on the terms of section 70(4) which contain, it was said, the implication that the presence of the child in England is not inconsistent with the making of a supervision requirement

The difficulty of finding an answer to this question arises from the fact that the proceedings before a children's hearing are sui generis and accordingly it is necessary to guard against taking an approach which is appropriate only in the case of the jurisdiction of a court of law.

In dealing with this question it is useful, we consider, to examine the structure of the Act. At the outset it is important to note that information may come to the reporter in a variety of forms and from a variety of sources. As can be seen from section 53 it may come not only from a local authority or a police constable, but also from any other person. Where the reporter receives information from any source which may require a children's hearing to be arranged, he is to make an initial investigation in accordance with section 56(1). It is plain that the type of information which the reporter receives may not be wholly satisfactory either in quality or extent. The reporter cannot himself make any order in regard to the child. Unless and until he decides, after investigation, to refer the case to a children's hearing, it is unknown whether or not there are to be any proceedings. The time which his investigation may take is indeterminate. On the other hand, the act of referral of the child to a children's hearing is a distinct statutory step, and in taking it the reporter is required to state the grounds, in accordance with rules made under section 42(1) of the Act. As Mr Dewar pointed out, the decision as to what is in accordance with the child's welfare, which is the paramount consideration in terms of section 16(1) of the Act, lies with the children's hearing and not with the reporter. Mr Dewar also drew our attention to O. v Rae 1993 S.L.T. 570. In commenting on that decision in an article published in 1995 S.L.T. (News) at page 355 Professor K. McK. Norrie submitted that the decision in that case was entirely correct and reflected precisely how the children's hearing system was designed to operate, should operate and did in fact operate. He added: "The existence of the grounds of referral founds the jurisdiction of the children's hearing".

There is no suggestion in the present case that the parents have at any stage sought to frustrate the ability of the children's hearing to deal with the case of the child. At the same time we recognise that, in view of the purpose of the Act to provide for the protection and supervision of children, it should be interpreted in a liberal manner. However, we are not persuaded that it would be satisfactory or in accordance with its provisions to hold that a child would fall within the ambit of proceedings before a children's hearing merely on the strength of the fact that he or she was in Scotland at the time when information was first received by the reporter. That does not appear to us to provide a sure basis for giving the children's hearing authority to proceed, especially when it is compared with the stage at which the reporter takes the formal step of referring the case to the children's hearing on specified grounds, and then sets proceedings in motion. We are not persuaded that the terms of section 70(4) point to a different conclusion. A children's hearing may well consider, for example, that a child should be taken to a place in England or Wales where the person in charge of such a place has the authority to restrict the child's liberty to such an extent as he may consider appropriate.

At the same time we consider that there is no reason why the children's hearing should lose its power to deal with the case of a child after the reporter has referred his or her case. To hold otherwise would, in our view, be to apply the Act in an unnecessarily restrictive manner.

In the course of the discussion counsel made a number of observations as to how effect might be given to the proposition that the power of the children's hearing to deal with the case of a child depends upon whether the child is in Scotland at the stage when his or her case is referred by the reporter. It would, of course, be for the reporter to give effect to this in deciding whether or not to proceed to refer the case. If the fact that the child was no longer in Scotland at the stage of referral came to light only at the time when the matter was before the children's hearing, it could discharge the referral. If that fact came to light only after the matter was before the sheriff, he could dismiss the application. It is well recognised that the sheriff is entitled to dismiss an application where it is incompetent (Merrin v S. 1987 S.L.T. 193 cf. Sloan v B. 1991 SC 412 at page 435).

For these reasons we consider that the sheriff came to the correct decision, and accordingly we will answer the question in the stated case in the negative.