Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 108

XA10/14

 

Lord Eassie

Lord Menzies

Lord Bracadale

OPINION OF THE COURT

delivered by LORD EASSIE

in the appeals

by

MT & AG

Appellants;

against

ANNE GERRY (Locality Reporter)

Respondent:

Act:  I Mitchell, QC, Ms MacLeod;  MHD Law LLP

Alt:  Dickson, solicitor advocate;  Anderson Strathern LLP

12 December 2014

Introductory

[1]        The court has before it two appeals by way of stated case under section 164 of the Children’s Hearings (Scotland) Act 2011 – the “2011 Act” – from a decision of the sheriff at Kirkcaldy on appeals to him under section 160 of the 2011 Act. The appeals to the sheriff were taken, in turn, from two decisions of a pre-hearing panel constituted in terms of the 2011 Act.  The appellants are the parents of two children aged 12 and almost 11 years at the date of the decision of the pre-hearing panel on 23 August 2013.  The respondent is the locality reporter manager for the area in which the children live.  There is no material difference in the terms of the two cases stated by the sheriff – or the appeals to him.  Taken together,the decisions of the pre-hearing panel under challenge amount to a decision taken in terms of section 81 of the 2011 Act deeming two named individuals, a married couple who were the then foster carers of the two siblings, to be “relevant persons” for the purposes of the proceedings respecting the children. 

 

The transitional provisions issue

[2]        Grounds of referral respecting the children were found to be established by a sheriff at Kirkcaldy on 17 June 2011; since that date the children have been in the care of various foster carers, with both of the parents having contact with the children.  On 30 July 2013 the father sought a review of the arrangements under which he had contact with the two children.  A review hearing was fixed for 27 August 2013.  Meantime, following a referral by the reporter, a pre-hearing panel was convened for 23 August 2013 to consider the application by the reporter, of her own initiative, to have each of the foster carers deemed a “relevant person”.  Given that the proceedings as a whole had begun before the 2011 Act came into force, an issue arose in these appeals whether the transitional provisions set out in the Children’s Hearings (Scotland) Act 2011 (Transitional Saving and Supplementary Provisions) Order 2013 – SSI 2013/150 - had the effect of enabling appeal to be made to the sheriff under the provisions of the 2011 Act.  The first question posed by the sheriff in each of the stated cases is directed to that issue.  Argument was heard on that issue at an earlier hearing on the summar roll, during the course of which it was conceded that the proper construction of the transitional provisions was such as to bring the appeals within the procedure of the 2011 Act.  We shall therefore, of consent, answer question 1 in the stated cases in the affirmative, that is to say to the effect that the appeals to the sheriff against the decision of the pre-hearing panel were competently brought.

 

The statutory provisions respecting a “relevant person”

[3]        At base these appeals are concerned with the issue of who may be given the standing to be a party in proceedings before a children’s hearing.  The 2011 Act uses the term “relevant person”.  Being a “relevant person” confers not only rights but also obligations.  It gives not only the right to attend the children’s hearing, but also the obligation to do so, failure to attend being a criminal offence (see section 74(4) of the 2011 Act).  A relevant person is entitled to be legally represented at the hearing and to make submissions.  A relevant person has  the various rights of appeal to be found at various points in the legislation governing the conduct of children’s hearings.

[4]        The primary definition of a “relevant person” is in section 200 of the 2011 Act.  It provides:-

“200.    Meaning of ‘relevant person’

(1)        In this Act, ‘relevant person’, in relation to a child, means –

(a)        a parent or guardian having parental responsibilities or parental rights in relation to the child under Part 1 of the 1995 Act,

(b)        a person in whom parental responsibilities or parental rights are vested by virtue of section 11(2)(b) of the 1995 Act,

(c)        a person having parental responsibilities or parental rights by virtue of section 11(12) of the 1995 Act,

(d)       a parent having parental responsibility for the child under Part 1 of the Children Act 1989 (c.41) (‘the 1989 Act’),

(e)        a person having parental responsibility for the child by virtue of –

(i)         section 12(2) of the 1989 Act,

(ii)        section 14C of the 1989 Act, or

(iii)       section 25(3) of the Adoption and Children Act 2002 (c.38),

(f)        a person in whom parental responsibilities or parental rights are vested by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007(asp 4)),

(g)        any other person specified by order made by the Scottish Ministers.

(2)        For the purposes of subsection (1)(a), a parent does not have parental responsibilities or rights merely by virtue of an order under section 11(2)(d) or (e) of the 1995 Act.

(3)        An order made under subsection (1)(g) is subject to the affirmative procedure”.

 

[5]        However, the catalogue in section 200 of the 2011 Act is not exhaustive.  Section 79(2) of that Act provides:-

“(2)      The Principal Reporter –

(a)        must refer the matter of whether a particular individual should be deemed to be a relevant person in relation to the child for determination by three members of the Children’s Panel selected by the National Convener (a ‘pre-hearing panel’) if requested to do so by –

(i)        the individual in question

(ii)       the child, or

(iii)      a relevant person in relation to the child,

(b)       may refer that matter for determination by a pre-hearing panel on the Principal Reporter’s own initiative,

(c)       ......”.

 

The test whether an individual may be deemed a “relevant person” is contained in section 81(3) of the 2011 Act which provides:-

“(3)      The pre-hearing panel must deem the individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in the upbringing of the child”.

 

The decision of the pre-hearing panel

[6]        As already indicated, the foster carers did not themselves seek to acquire the rights and obligations of being a “relevant person”.  The application was made by the reporter of her own motion.  The grounds of that application were set out thus:

“Mr and Mrs R are [the children’s] foster carers – the girls are subject to supervision requirements with conditions that they reside with Mr and Mrs R.  [The children] have been in their care since February 2012 and the social work plan is that [the children] will remain in their care.  The upcoming hearing has been arranged at [the father’s] request because he stated that contact conditions are not being adhered to by the local authority.  Mr and Mrs R have had, and will continue to have significant involvement in the upbringing of both girls.  I believe they meet the criteria which would allow them to be deemed relevant persons in relation to [the children]”.  [Anonymity supplied]

 

A letter of objection by solicitors acting for the mother was sent to the locality reporter with the request that it be placed before the hearing by the pre-hearing panel.

[7]        The reasons given by the pre-hearing panel for its decision, following a 10 minute hearing, deeming the foster parent to be relevant persons are expressed thus:

“The panel deemed Mr and Mrs R to be considered relevant persons.  It is the panel’s view that the foster carers, having cared for [the respective child] within their own home for the previous months, have had ‘significant involvement in the child’s upbringing’ thus meeting the panel’s guidance criteria for relevant person status”.

 

The sheriff’s decision

[8]        As already indicated, both parents appealed to the sheriff.  In terms of section 160(3) of the 2011 Act, if the sheriff “is satisfied that the determination is justified”, the sheriff must confirm the determination; and if the sheriff is not so satisfied, the terms of section 160(4) direct the sheriff to quash the determination.  A very tight timescale for disposing of the appeal is imposed by the legislation.  By virtue of section 160(6)(b) of the 2011 Act, the appeal must be dealt with completely within three days from its being lodged.  We are therefore very sympathetic of the difficulties faced by the sheriff of meeting that timescale in the present case in which the issues before him raised some difficult points of interpretation of the legislation and possible infringement of the rights conferred by article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms and made applicable by virtue of the Human Rights Act 1998.  The timescale allows little time for the necessary reflection and consideration of the important issues involved in this, and no doubt many other, cases.

[9]        No evidence was led before the sheriff.  He therefore required to proceed upon a factual basis seemingly accepted by the parties then and now. That acceptance resulted in the sheriff’s making findings in fact 1 to 4 which are in these terms:

“[1]      that the children MT and CT have been for some years under the supervision of the local authority, following decisions by various Children’s Hearings, requiring them to reside with foster carers.

[2]        that grounds of referral were established at this court on 17 June 2011, and since then the appellant has enjoyed contact, with the latest arrangements set down by the panel on 16 April 2013.

[3]        that the appellant AG sought to revisit the issue of contact, and prior to a hearing taking place, the Reporter convened a Pre-Hearing Panel to consider the issue of whether the foster carers should be deemed as relevant persons.

[4]        that the foster carers had been acting in that capacity to the children since February 2012”.

 

The sheriff’s further, fifth finding in fact, which is disputed, must necessarily follow by way of conclusion from those findings in fact.  It states:

“[5]      that the foster carers have and have had a significant involvement in the upbringing of the children”.

 

[10]      Subject to some adjustments, the note which the sheriff annexed to his findings in fact contains the terms of the judgment which he issued on orally advising the appeal within the timescale which he, understandably in the circumstances of these two cases, describes as being almost impossible.  Having narrated in summary the legislative background and the contentions advanced by the parties, the sheriff expresses his decision, and the reasons for it, in paragraph 9 of his note:

“[9]      It is clear to me that by deeming an individual a relevant person a significant step is being taken.  It creates rights such as the receipt of papers, and the power of appeal.  It gives foster carers the same position within the 2011 Act framework as that of the natural parents.  It may create conflicts as between the foster carers on the one hand and the local authority responsible for them on the other, for example over an award of contact.  But any decision taken by a Pre Hearing Panel must have the child’s welfare as its paramount consideration.  I can see no real prejudice to the children in the decision.  It was suggested that sight of information about the parents in reports might have the effect of changing the foster carer’s views of the parents, which might have the effect or enable them to influence the views of the children or disrupt the contact arrangements.  In my opinion, such possible prejudice is removed and can be managed both by the children’s hearing and social work.  I accept that foster carers are by their very nature a transient involver in a child’s life, but the carers in this present case are there at present and, in my view, it is clear and obvious that they do have a significant involvement in the current upbringing of the children.  Even if their involvement is to end soon, should it be the case that the placement is breaking down, the wording of the section to include the recent past would cover their current position.  I do not consider that this is necessarily what Parliament intended but, on the facts of this case, I find the determination justified and I confirm it.  As I indicated in the course of the discussions, I could see a role as relevant persons for those foster carers who had been approved as prospective adopters for a child.  Such carers would clearly be more than transient in a child’s life, and their involvement would obviously be significant.  But there is no such restriction in the 2011 Act, as one might have expected.  Thus each application for deemed relevant person status must be dealt with on its own merits”.

 

The criticisms of the sheriff’s decision

[11]      As is evident from the fifth sentence in paragraph [9] of the sheriff’s note, reproduced above, the sheriff considered that any decision taken by a pre-hearing panel on the question whether an individual might qualify standing as a “relevant person” required to have the welfare of the child in question as its paramount consideration.

[12]      Both parties to the appeals to this court were in agreement that in that respect the sheriff was in error.  The test in section 81(3) of the 2011 Act was a factual one, albeit a conclusion which had to be derived from other agreed or established primary facts.  It was not a decision which, reflecting the terms of section 25(1) of the 2011 Act, was a “matter relating to the child”.  The basis for the criticism that the sheriff had wrongly applied the child welfare test to a matter which was not subject to that test in terms of the statute reflected in its essentials the basis of the criticism advanced by Professor Kenneth Norrie in his article published in the Family Law Bulletin 2014, 128-4. 

[13]      In our view, and essentially for the reasons given by Professor Norrie, the criticism of the sheriff’s having had regard to the paramount consideration of the welfare of the child as a determinant in a decision respecting the issue for a pre-hearing panel under section 81(3) of the 2011 Act is well founded.  While, of course, the overall exercise upon which a children’s hearing is embarked is concerned with the welfare of the child, the particular decision which a pre-hearing panel requires to reach under section 81(3) is not related to the welfare of the child as such.  It is concerned with standing in the proceedings, and whether the individual concerned should be made a party to the proceedings with the obligations and rights which flow from the conferral of that locus standi.  It depends upon whether the state of present and recent past facts can justify the conclusion that the individual concerned has had “a significant involvement in the upbringing of the child”.  Contrary to what was at some points suggested by Mr Dickson in his submissions for the respondent, the test is not whether the individual concerned might be able to assist by giving information helpful to the hearing which would deal with the merits of the case.  There are a wide variety of individuals, including foster carers, who may provide such assistance;  but there are means for securing the assistance of the children’s hearing with that information other than that of conferring the status of a party to the proceedings.

[14]      By way of elaboration of what we have just said, it may be noted that the primary definitions of a “relevant person” (in section 200 of the 2011 Act) are directed to parental relationships.  The locus standi so conferred by the statute is not qualified by any welfare test.  Since the task entrusted to the pre-hearing panel under section 81(3) of the 2011 Act is directed towards conferring such standing, it appears to us that the focus of the provision should be on whether the individual in question has had an involvement in the upbringing of the child of such significance as to give rise to a relationship between the individual and the child which calls for the procedural protection of constituting the individual as a party to the proceedings, with all the procedural obligations and rights which that status entails.  In other words,  since the adjective “significant” has a lack of precision, it requires to be construed purposively; its colour should be taken from the context that the provision is concerned with standing in the proceedings.  As was observed in paragraph [68] of the opinion of the Supreme Court of the United Kingdom delivered jointly by Lord Hope and Lady Hale in Principal Reporter v K [2010] UKSC 56; 2010 SC (UKSC) 91, it is not every involvement in the life of the child which calls for such procedural protection.

[15]      The solicitor advocate for the reporter submitted, perhaps somewhat faintly, that the sheriff’s reliance on the welfare test might not have been a material misdirection in his decision.  We do not agree.  It appears to us to have occupied a central part of his thinking.

[16]      While the identification of that error in the sheriff’s approach might be sufficient in itself to require us to allow the appeal from the sheriff, it is appropriate for us to express our views on the wider criticism of the decision of the pre-hearing panel advanced by the appellant. 

[17]      That criticism can, we think, be described relatively shortly.  The only basis upon which the pre-hearing panel granted the reporter’s application was that the foster carers had cared for the two children for almost 18 months.  While, of course, cases might arise in which a foster carer had been given, or had created, a relationship with the child which demonstrated a sufficiently significant involvement in the upbringing of the child to warrant deeming the foster carer a “relevant person”, a very detailed consideration of the care arrangements was required.  A significant involvement in the upbringing of the child – as opposed to a significant involvement in the child’s day to day care – was what the test required.  Contrary to the suggestion from the solicitor representing the respondent, a fostering relationship was not a uniform relationship.  The relevant delegated legislation – the Looked After Children (Scotland) Regulations 2009 - SSI 2009/210- required a written fostering agreement; but much would turn on the terms of the agreement and how it had been implemented in practice.  The pre-hearing panel had proceeded upon the mere fact of the existence of some foster carer arrangement during a period approaching 18 months.  Without further inquiry, and further information, that mere fact did not enable the pre-hearing panel, or the sheriff, properly to conclude that the foster carers had created a relationship with the children involving a significant involvement in their upbringing.

[18]      In our view that criticism is well founded.  The pre-hearing panel did not proceed to any consideration of the particular circumstances of the case.  The pre-hearing panel refers to “national guidance”, being, we understand, guidance issued by the National Convenor to panel members.  That guidance was placed before us.  Our attention was drawn to the following:-

“4.3      This [the test under section 81(3) of the 2011Act] is a factual test.  Decisions should therefore be based on the facts and circumstances of each individual child.  Making decisions in this area will sometimes involve sensitive issues and some complexity.  There are no set rules as each child’s relationships must be considered individually.  Some suggested factors to consider are given below, along with some case examples, however these should not be considered as fixed rules to be applied.  It is likely that interpretation of the definition will develop over time as a result of case law.

4.4       The test is of significant involvement in the upbringing of the child, rather than any particular care of, or contact with, the child.  The Oxford English Dictionary definition of ‘upbringing’ is ‘the treatment and instruction received by a child from its parents throughout its childhood’.  Other considerations such as the best interests of the child or the character of the individual are not relevant considerations for being deemed a relevant person.

4.5       In general terms the children’s hearing might consider the following criteria:

• The nature of the involvement in the child’s life, for example is the person fulfilling a parental role in relation to the child – this could be involvement in key decisions in relation to the child, such as education or medical treatment, without necessarily having care of the child
• The length of time the person has been involved in the child’s life
• Living arrangements, for example do the child and person live in the same house
• Where the person and the child do not live in the same house, the level and quality of contact the person has with the child
• The child’s view, if they (sic) are old enough to provide it, of the significance of their (sic) relationship with the person”.

 

Later, within paragraph 4.7, one finds as respects foster carers:-

“As a group, many long term foster carers are likely to meet the test to become a deemed relevant person for the child they have in their care.  However, this is not an absolute rule and panel members must closely consider whether the carer has a significant involvement in the upbringing of the child.  Being a foster carer alone will not automatically mean a person is a deemed relevant person”.

 

[19]      Counsel for the appellants did not take any serious issue with the general terms of this advice to panel members.  His complaint, which we think evidently well based, was that the pre-hearing panel in the present case had not in any way applied that advice since they had not given the detailed consideration to the foster carer relationship which was required before they could hold that the foster carers had had a significant involvement in the upbringing (as opposed to care) of the children in question.

[20]      For all of these reasons the appeals to us succeed. Other than the first question in the stated cases, which we have already answered, the remaining pertinent questions in the stated cases to which we should supply an answer are these:

            “2.   Was the correct statutory test applied in the determination of whether foster            carers are entitled (sic) persons?”

            4.  Was I entitled to confirm the decision of the Pre Hearing Panel?

            5. Did I err in law in holding that the decision of the Pre Hearing Panel was        justified?”

 

While reiterating our sympathy for the sheriff faced with the timescale imposed by the legislature, for the reasons already explained we must answer questions 2 and 4 in the negative and question 5 in the affirmative.

[21]      We now address the disposal of the appeals. Section 164 (6) of the 2011 Act stipulates that we must remit to the sheriff with such directions as are considered appropriate. It is plainly appropriate that the sheriff be directed to allow the appeals to him and to refuse to confirm the decisions of the pre hearing panel of 23 August 2013 as justified. But parties were also agreed that the sheriff should not thereafter remit to the pre hearing panel for reconsideration of the reporter’s applications. With the passage of time, the circumstances of the children had changed and the fostering relationship had partially broken down. Any question of the foster carers now being given the status of a relevant person required a fresh application, were that advised.  We shall follow that procedural course.