EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Clarke Lord Marnoch	[2009] CSIH 49 XA60/09 OPINION OF THE COURT delivered by LORD OSBORNE in Stated Case for the opinion of the Court of Session under section 51(11) (b) of the Children (Scotland) Act 1995 by A M Appellant; against Nicola Harkness, Scottish Children's Reporter for Renfrewshire Respondent: in respect of the child N M _______

Act: Miss Wild, Advocate; Messrs Balfour + Manson LLP, Edinburgh

Alt: Miss Dowdalls, Advocate; Brodies

16 June 2009

The Background Circumstances
[1] By a Referral, dated 20 May 2008, the respondent referred the case of N M, a child, who was born on 15 May 2008, to a Children's Hearing for Renfrewshire on the following grounds: that in terms of section 52(2)(c) of the Children (Scotland) Act 1995, "the 1995 Act", he was likely

"(i) to suffer unnecessarily; or

(ii) be impaired seriously in his health or development, due to a lack of parental care."

In support of the Referral, the respondent stated the following facts:

"1. N M was born on 15 May 2008. His mother is A M who currently lives at [address given]. The identity of N's father is unknown.

2. A M has another child, D M, who was born on 3 October 2002. D M is looked after by foster carers. Grounds for referral in relation to D M were established at Paisley Sheriff Court on 6 October 2005. A copy of these grounds is attached. The terms of the attached grounds for referral are included in, and form part of, this statement.

3. D M's father is S M, who has a history of sexually abusing children.

4. S M did not complete work with the Pathways Project on relapse prevention and he accepted he was at a high risk of re-offending. N M is likely to be placed at risk if he had contact with S M.

6. A M has a history of minimising the potential risk S M is to children.

7. A M has not been honest with Social Work or medical staff for example:

(a) She did not disclose to midwives during ante-natal care that D M was accommodated by the local authority.

(b) In March 2008, A M denied that S M played any part in her life.

(c) On or about 19 May 2008, A M denied that S M had any contact with her during her pregnancy with N M and for some months before N M's conception although she had been seen on several occasions prior to March 2008 in the company of S M.

(d) On or about 9 September 2008, A M and S M were shopping together in Morrison's Supermarket, Neilston Road, Paisley.

8. A M's history of minimising the risk S M posses to children taken together with her lack of honesty about her recent contact with S M show that N M is likely to suffer unnecessarily if returned to the care of A M at this time".

[2] Before the Children's Hearing, the following parts of the foregoing statement of facts were accepted by A M, that is to say, paragraphs 1, 2, 3, 4, 5, and a. and b. of paragraph 7. It should be recorded that the grounds for referral in relation to D M, which were established at Paisley Sheriff Court on 6 October 2005, included the following grounds in relation to S M;

"4. The father [SM] has a history of sexually abusing children. For instance:

5. (a) Grounds for Referral were established in relation to the father abusing children in terms of section 52(2)(c) of the Children (Scotland) Act 1995. He has admitted to sexually abusing children from when he was 11 years old.

(b) He has abused at least seven children.

(c) He has abused siblings, cousins and a child of a neighbour of his mother's.

(d) He abused them in a sadistic way and enjoyed inflicting pain on them.

6. The father has attended the Halt Project and Pathways Project both [of] which deals (sic) with adult offenders and perpetrators of child sexual abuse".

[3] In view of the appellant's unwillingness to accept all of the grounds of referral in the statement of facts, dated 20 May 2008, the respondent was directed by the Children's Hearing to make an application to the sheriff for a finding as to whether the grounds of referral not accepted were established, in terms of section 65(7) of the 1995 Act. On 28 November 2008, the sheriff, following upon a hearing of evidence, found the grounds of referral established and remitted the application to the Children's Hearing for disposal in terms of section 68(8) of the 1995 Act. Subsequently, by an application dated 18 December 2008, the appellant requested the sheriff to state a case for the opinion of this court on the following questions:

"1. Was the sheriff entitled to hold as established the ground of referral alleging that the said child is likely to suffer unnecessarily or be impaired seriously in his health or development due to a lack of parental care, in the absence of any evidence that the said child N M was likely to have contact with S M?

2. Was the sheriff entitled to conclude that the child was likely to have contact with S M on the basis of the evidence before the court, which was that the appellant had been seen in the company of S M on two occasions during 2008?

3. Is a failure to advise the Social Work Department that the Appellant had met S M on two occasions during 2008 by chance, tantamount to a lack of parental care?

4. Was the sheriff entitled to hold as established the ground of referral that there was a likelihood of a lack of parental care in the absence of any evidence or identification of what parental care is lacking by the appellant?

5. On the whole facts of the case, was the sheriff entitled to hold the ground of referral established?"

[4] In response to that application, the sheriff has stated a case for the opinion of this court in which he narrates that he found the following facts to be admitted or proved:

1. N M was born on 15 May 2008. His mother is A M who currently lives at [address stated]. The identity of N M's father is unknown.

2. A M has another child, D M, who was born on 3 October 2002. D M is looked after by foster carers. Grounds for Referral in relation to D M were established at Paisley Sheriff Court on 6 October 2005 in terms attached to the current grounds for referral.

3. D M's father is S M who has a history of sexually abusing children.

4. S M did not complete work with the Pathways Project on relapse prevention and he accepted he was at a high risk of re-offending.

5. N M is likely to be placed at risk if he had contact with S M.

6. A M has a history of minimising the potential risk S M is to children.

7. A M has not been honest with Social Work or medical staff.

8. A M allowed S M to live with her and D M for a period of two to three months up to June 2005 in the knowledge that this was not allowed due to the risk posed by S M to D M. She denied to social workers that S M was living with her.

9. (i) A M attended the Pathways Partnership Project further to the birth of D M. In 2004 the Pathways Project considered A M to be a protective parent for D M. S M was deemed at that time to be a low risk to D M. That assessment was subsequently changed to high risk.

(ii) At times between 2002 and 2006, S M was allowed contact with D M, supervised by A M or S M's mother and then by representatives of the Social Work Department.

(iii) On the occasions that A M was sighted with S M, she did not have the care and control of any child.

10. The child D M was removed from the care of A M in November 2006 due to her failure to adhere to the requirement that S M have no contact with D M due to the risk posed by S M to D M. The Social Work Department had received numerous alerts to the presence of S M with A M. These were denied by A M.

11. For a period of 3 to 4 weeks around August 2007, A M and S M were consistently walking arm in arm in Wellmeadow Street, Paisley, when Moyra MacLean, social worker, was on her way home from work at around tea-time.

12. A M did not disclose to midwives during ante-natal care that D M was accommodated by the local authority.

13. In March 2008, A M denied that S M played any part in her life.

14. While visibly pregnant with N M, A M was with S M in Renfrew Road, Paisley. They were walking along the pavement talking to each other and gave the appearance of a normal couple. This was observed by Mrs Ann McGregor, home support worker.

15. At a Case Conference on or about 19 May 2008, A M denied that S M had any contact with her during her pregnancy and for some months before N M's conception although she had been seen in the company of S M as found in findings in fact 11 and 14.

16. Following the Case Conference, Renfrewshire Council made an application to the sheriff for a Child Protection Order as they considered N M to be at risk due to A M's inability to take decisions to protect N M from S M. a Child Protection Order was granted.

17. On or about 9 September 2008, A M and S M were shopping together in Morrison's Supermarket, Neilston Road, Paisley.

18. In the course of risk assessment work, Mrs Helen Nathaniel-Fulton, social worker, asked about this sighting. A M denied that any such meeting with S M had taken place.

19. As at October 2008, during assessment by Helen Nathaniel-Fulton, social worker, A M did not accept that S M had presented a risk.

20. A M is likely to fail to prevent contact between S M and N M as a result of which N M is likely to suffer unnecessarily.

21. A M has exercised regular supervised contact with the child, N M. A M has been observed to care appropriately for the said child. She has bonded well with N M. The home conditions within the property occupied by A M have been found to be satisfactory. The house is clean, tidy and well maintained. A M attends to the child's needs during contact."

[5] The sheriff made the following findings-in-fact-and-in-law:

"1. That Statement of Facts 1, 2, 3, 4 as amended, 5 as amended, 7a, 7b are accepted by the child's mother and are established.

2. That Statement of Facts 6, 7, 7c, 7d and 8 are established.

3. That the Ground for Referral under section 52(2)(c) of the Children (Scotland) Act 1995 is established.

4. That the case be remitted to the Reporter to make arrangements for a Children's Hearing to consider and determine the case".

[6] The sheriff has submitted two questions for the opinion of this court, which are:

"1. Was I entitled to conclude that the child's mother was likely to fail to protect the child from contact with S M?

2. On the whole facts of the case, was I entitled to hold the Grounds for Referral established?"

The submissions of the appellant
[7] When this stated case came before us for hearing, counsel for the appellant indicated that she would invite the court to answer both of the questions posed by the sheriff in the negative. She then drew our attention to the relevant legislation, including in particular section 52(2)(c) of the 1995 Act. She also drew our attention to four cases in which the relevant test to be applied in such cases had been developed. The first of these was M v McGregor 1982 S.L.T. 41. That case had been decided under the provisions of the Social Work (Scotland) Act 1968, but useful guidance could be derived from it. In particular, at page 43, the court had indicated that the proper approach under section 32(2)(c) of the 1968 Act, was an objective one. Counsel also relied on D v Kelly 1995 S.C. 414, particularly at pages 417 to 419. It was necessary to look at the standards of the reasonable parent; it was not appropriate to look for perfection. She also submitted that this and other cases seemed to show that the words used in section 52(2)(c) "to suffer unnecessarily" and "due to lack of parental care", should be viewed together as part of a single test. Counsel went on to rely on H v Harkness 1998 S.C. 287, particularly the observations of Lord Coulsfield at pages 294 to 295, where he observed that glosses on the statutory question arising in such cases were not helpful. Upon that basis, counsel submitted that the relevant question here was whether the child was "likely (i) to suffer unnecessary". Finally she relied upon M v McClafferty 2008 Fam L R 22. In that case the court considered the meaning of the word "likely" in section 52(1)(c) of the 1995 Act. The court accepted that what was meant was not "probably" or "more likely than not", but nevertheless that there was a significant or substantial risk of the events set out in the paragraph occurring in the future. In order to decide whether there was such a likelihood, it was necessary to consider, in the first place, events in the past and then to draw inferences by a process of inductive reasoning from those events and what else was known about the character of the person or persons involved in them, so that conclusions could if possible be drawn about what was likely to happen in the future. Particular reliance was placed upon paragraph [10] on page 24 of the report. It was submitted that the test there described was a high one.

[8] Counsel submitted that, in the present case, the sheriff had taken a leap too far in that he had found that A M and S M remained in a relationship, upon a too slender basis. Findings in fact 15 and 17 did not demonstrate a continuing relationship. Counsel, in response to questions by the court, said that she could not deny a risk, if N M had contact with S M. That is why she accepted finding-in-fact 5. However, she took issue with finding-in-fact 20. The sighting referred to in finding-in-fact 17 was the only one to have occurred after the birth of N M. No particular significance should be attributed to finding-in-fact 16. Discussing paragraph 31 of the sheriff's Note, counsel recognised that sub-paragraph (a) was relevant, as was finding-in-fact 9 (ii). The essence of the matter was that the sheriff had placed too much weight on circumstances relating to D M. He had ignored improvements made on the part of A M. Counsel was unable to take issue with paragraph 31(c) and (d) of the sheriff's Note. In all these circumstances, the questions posed by the sheriff should be answered in the negative.

The submissions of the respondent
[9] Counsel for the respondent moved the court to answer the questions posed by the sheriff in the affirmative. The only finding-in-fact which was seriously in question was finding-in-fact 20, where the sheriff had held that A M was "likely to fail to prevent contact between S M and N M as a result of which N M is likely to suffer unnecessarily". That finding was plainly an inference drawn by the sheriff from primary findings-in-fact. It had been represented as a step too far, but that was not the case. Paragraph 31 of the sheriff's Note was significant, since it contained his reasoning in making finding in fact 20. He had rightly inferred from various pieces of evidence described in the paragraph that the appellant was likely to fail to prevent contact between S M and N M. That was a perfectly sound basis upon which to make such a finding. In this connection, counsel also drew attention to findings-in-fact 8 and 10. They indicated a substantial degree of irresponsibility on the part of A M towards the risk posed to children by S M, with whom she plainly had a continuing relationship. That was exemplified by findings-in-fact 11, 14 and 17. The basis for these findings was explained by the sheriff in paragraphs 8, 10 and 15 of his Note. A disturbing feature of the situation was that A M had not been honest about her relationship with S M. In that connection reference was made to paragraph 18 of the sheriff's Note and finding-in-fact 18. It was plain that A M had a "blind spot" relating to S M, as appeared from finding-in-fact 19 and paragraphs 5, 16 and 17 of the Note. Looking at the whole circumstances, it was plain that there was a serious risk of unnecessary suffering to the child on account of the risk of contact between the child and S M in the circumstances. The latter had accepted that he was at a high risk of re-offending, as found in finding-in-fact 4.

The decision
[10] It is appropriate, in the first instance, to consider the statutory provisions applicable in this case. The Referral by the respondent to the Children's Hearing was upon the basis that, in terms of section 52(2)(c) of the 1995 Act, the child in question was "likely - (i) to suffer unnecessarily; or (ii) be impaired seriously in his health or development, due to lack of parental care". The basis upon which the respondent invoked that provision is set out in paragraph 8 of the Referral itself, which we have already quoted. In finding-in-fact-and-law 3, the sheriff held that that ground of referral had been established. In paragraph 31 of his Note the sheriff explained his decision in the following way: "I concluded on the balance of probability that A M was likely to fail to protect N M from contact with S M and therefore that N M was likely to suffer unnecessarily as an inference based upon

(a) A M's failure to prevent contact between S M and D M when D M was in her care,

(b) the number and nature of the sightings of A M and S M together in the period from August 2007 to September 2008,

(c) A M's repeated and continuous lack of honesty about her contact with S M, and

(d) A M's history of minimising the risk posed by S M which continued as at October 2008".

[11] A question arose during the course of the hearing, as to the terms of section 52(2)(c) of the 1995 Act. The question was whether the words "...likely (i) to suffer unnecessarily..." are to be read as standing alone, or as qualified by the words "...due to a lack of parental care". This issue was not seriously ventilated in the course of the debate before us, as a result of which we do not think it appropriate for us to express any concluded view upon the matter.

[12] Looking at the terms of paragraph 31 of the sheriff's Note, it appears that he proceeded upon the latter approach to section 52(2)(c) in that he concluded that A M was "likely to fail to protect N M from contact with S M and therefore that N M was likely to suffer unnecessarily ...". In deciding the issues raised in this stated case, we are prepared to follow the approach apparently adopted by the sheriff to the interpretation of the legislation.

[13] Further, we consider that the approach to the word "likely" set forth in paragraph [9] in M v McClafferty is one which we can properly follow. We agree that:

"In order to decide whether there is such a likelihood, it is necessary to consider in the first place events in the past and then to draw inferences by a process of inductive reasoning from those events and what else is known about the character of the person or persons involved in them, so that conclusions can if possible be drawn about what is likely to happen in the future".

[14] Adopting that approach to the matter, we conclude that the sheriff was quite justified in holding that A M was likely to fail to protect N M from contact with S M, which must be seen as a lack of parental care, and therefore that N M was likely to suffer unnecessarily. It is quite evident from the fact that S M has a history of sexually abusing children, to which we have already referred, and that he failed to complete work with the Pathways Project on relapse prevention and that he accepted that he was at a high risk of re-offending, averments in the Referral document which were accepted by the appellant, that the respondent was quite justified in averring in paragraph 5 of the statement of facts that "N M is likely to be placed at risk if he had contact with S M", also an averment accepted by the appellant. In these circumstances, it appears to us that the issue in controversy is a narrow one. It is whether, in the circumstances found as fact, N M is likely to have contact in the future with S M, in the absence of intervention. Despite counsel for the appellant's lucid argument to the contrary, we have little hesitation in concluding that the sheriff's judgment on this matter was correct. In paragraph 31 of his Note, he identified four sets of circumstances which led to that conclusion. The first of these, described in sub-paragraph (a), was the failure A M to prevent contact between S M and the child D M when that child was in her care. That particular conclusion appears to us to be quite justified by reference to findings-in-fact 8 and 10. The second set of circumstances relied upon by the sheriff is described in sub-paragraph (b), the number and nature of the sightings of A M and S M together in the period from August 2007 to September 2008, which of course includes the incident at the supermarket on 9 September 2008, fully described in paragraph 15 of the sheriff's Note, where he narrates the evidence of Jacqui Moore. Findings-in-fact 11, 14 and 17, seem to us to provide full justification for this part of the sheriff's conclusions. In sub-paragraph (c) the sheriff attaches weight to A M's repeated and continuous lack of honesty about her contact with S M. There was no dispute about that matter. It appears to us to show that A M does indeed have a continuing relationship with S M, which has caused her to have a "blind spot", so far as the risk which he presents to a child is concerned. Finally, in sub-paragraph (d), the sheriff attaches weight to the history of A M minimising the risk posed by S M, which continued as at October 2008. In this connection, the point is vouched by the terms of finding in fact 19.

[15] Having regard particularly to the past behaviour of S M in relation to children and his failure properly to address that problem, and to the failure of A M to recognise the serious risk which he continues to present to children, we have no difficulty in concluding that the requirements of section 52(2)(c), as interpreted by the sheriff, which interpretation was favourable to the appellant, are satisfied. In these circumstances we shall answer both questions posed in the stated case in the affirmative.