Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 56

XA12/15

 

Lady Dorrian

Lady Clark of Calton

Lord McGhie

OPINION OF LADY DORRIAN

in the stated case

by

Malcolm Garden, Esq, Sheriff of Grampian Highlands and Islands at Aberdeen

 

for the opinion of the Court of Session

in the appeal under section 51(11)(b) of the Children (Scotland) Act 1995

 

by

 

AM

Appellant;

against

 

ELIZABETH TEMPLETON, LOCALITY REPORTER MANAGER

Respondent:

Act:  Party

Alt:  C Dickson, Solicitor Advocate;  Anderson Strathern LLP

8 July 2015

[1]        I agree that this appeal is without merit, for the reasons given by Lady Clark of Calton and Lord McGhie.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 56

XA12/15

 

Lady Dorrian

Lady Clark of Calton

Lord McGhie

OPINION OF LADY CLARK OF CALTON

in the stated case

by

Malcolm Garden, Esq, Sheriff of Grampian Highlands and Islands at Aberdeen

 

for the opinion of the Court of Session

in the appeal under section 51(11)(b) of the Children (Scotland) Act 1995

 

by

 

AM

Appellant;

against

 

ELIZABETH TEMPLETON, LOCALITY REPORTER MANAGER

Respondent:

Act:  Party

Alt:  C Dickson, Solicitor Advocate;  Anderson Strathern LLP

8 July 2015

Summary
[2]        The appellant, AM, is the father of HB (born 28 August 2007) and JB (born 27 April 2006).  The mother of the children is TB.  On 7 September 2006, JB was made the subject of a supervision requirement requiring her to reside in foster care.  On 12 October 2009 HB was made the subject of a supervision requirement requiring him to reside with his mother TB. 

[3]        There has been a long history of social work assessment of said parents and said children and decisions by the Children’s Hearing.  The most recent decision of the Children’s Hearing is dated 15 July 2014.  As at that date, as a result of earlier decision making neither child resided with their parents.  Both children as a result of a supervision requirement imposed by the Children’s Hearing resided with LB. 

[4]        On 15 July 2014, the Children’s Hearing having considered the circumstances of both children made the following decisions and gave the following reasons which I have summarised.  Decision 2:  the panel felt the supervision requirement was still needed for the protection and care of the children, the placement with “LB” is going very well and the children are happy and thriving.  Rehabilitation has been tried on three previous occasions and has been unsuccessful, all parties were in agreement that this is the best placement for the children at this time, both children have said they are happy where they are at the moment although JB said she would like to live with mum and dad again.  The childrens’ views were taken into account when making our decisions.  Both children are having respite care with [...].  There are no concerns with this, the children enjoy it and there were no issues raised with this.  Due to ongoing issues with timekeeping contact will be set at once a month, monthly contacts have gone well in June and July but these are still very early days.  There is a condition that the children will not be taken to the contact centre unless the contact centre have informed “LB” that the parents are there at least 45 minutes early.  This is due to large issues with timekeeping for mum and dad, contact has been cancelled due to mum and dad being late or not attending, this causes the children to be upset, and in JB’s words “it’s very distressing”.  It takes in excess of 40 minutes to drive to the contact centre from ... so 45 minutes was thought to be acceptable.  This is to be supervised to ensure contact is meaningful and benefiting the children, also to ensure mum and dad are well presented and not under the influence of substances.

[5]        The result of the decision of the Children’s Hearing was that the residence supervision requirement which provided that the children reside with LB, with respite care with RN and PN, was continued.  The only condition which was varied was the contact condition.  The variation stated that contact with the parents shall be once per month

“and such contact should be supervised by a representative of the social work department and the child shall be brought from (the residence address) for contact when his/her parents are present at the contact centre, 45 minutes prior to contact taking place. 

 

The decision of the sheriff
[6]        There have been many proceedings in this case.  It is essential to focus on the issues which are properly before this court in this appeal. 

[7]        Following the decision of the Children’s Hearing on 15 July 2014, the appellant appealed to the sheriff under and in terms of section 51 of the Children (Scotland) Act 1995 (“the 1995 Act”).  Under section 51, the sheriff has very wide discretionary powers which include the hearing of evidence from or on behalf of the parties in relation to the decision, examining the Principal Reporter, and the authors of any reports or statements.  The sheriff may also call for any further report which may assist him in the appeal.  The sheriff is plainly given the task of fact finding, if the appeal requires such fact finding.  But not all appeals involve this.  It depends on the particular appeal.

[8]        It was agreed by the parties in the appeal before the sheriff that submissions in writing should be lodged and that the appeal would proceed without either party leading evidence.  The sheriff has provided a copy of the lengthy written submissions made by the parties which I have considered.  It is plain from the stated case that the sheriff also considered all the submissions.  The sheriff found certain facts undisputed relating to the dates of birth of the children, the supervision orders and the childrens’ place of residence admitted or proved.  He also found:

“(7) That the supervision requirements for each child had been regularly reviewed and continued and

 

(8) That most recently, each supervision requirement was reviewed and continued by the Children’s Hearing on 15 July 2014 which had the decisions against which the appellant appeals”

 

The sheriff found in fact and in law

“(1)      That there was no procedural irregularity in the conduct of the hearing of 15 July 2014

(2)        That the Children’s Hearing made no error in law in coming to their decisions on 15 July 2014

(3)        That there was no element of unfairness in the conduct of the hearing on 15 July 2014

(4)        That the decisions of the Children’s Hearing on 15 July 2014 should be confirmed.”

 

[9]        In his note, the sheriff records that the written submissions of the appellant lacked specific complaint by the appellant about the conduct of the hearing on 15 July 2014 and that the main thrust of his submissions appeared to be an attack on the alleged non‑compliance of the Children’s Hearing system with the European Convention on Human Rights (ECHR).  The sheriff also records in paragraph 12 that:

“I endeavoured on numerous occasions to elicit from (AM) the basis of his appeal.  I was unable to do so as he clearly wished to argue the issue of the compliance of the system [that is whether the Children’s Hearing system is compliant with the European Convention on Human Rights].  It was not suggested that there had been any procedural irregularity (other than the ECHR point) nor that the hearing had failed to take into account any relevant factors or had taken into account irrelevant factors.  I formed the view that it could not be said that the decision of the hearing was not justified in all the circumstances of the case and refused the appeal.”

 

[10]      The sheriff issued his stated case and fixed a hearing on adjustment.  The appellant did not attend that hearing.  The sheriff did take account of the written note of proposed adjustments by the appellant, most of which he declined to accept on the basis that they were already adequately covered by the stated case or the adjustments  were inaccurate or irrelevant.

[11]      The proposed adjustments by the appellant invited the sheriff to include the following questions:

“i.        Did the proceedings at the children’s hearing on 15 July 2014 constitute a lawful review of the supervision requirement in accordance with the statutory provisions, the ECHR and the judgments of higher courts.

 

ii.         Did the proceedings before the sheriff on 15 September 2014 constitute a lawful hearing of the appeal in accordance with the statutory provisions, the ECHR and the judgments of higher courts.

 

iii.        Is the evidence sufficient to justify the children’s continued accommodation.

 

iv.        Was the sheriff entitled to hold that the decision of the 15 July 2014 children’s hearing was justified in all the circumstances of each case and to confirm the decision of the children’s hearing.

 

v.         Are the current and previous interferences in the family’s lives compatible with articles 6, 8, 13 and 14 of the ECHR.

 

vi.        Does the sheriff’s reservation recorded at paragraph 13 of TB & AM v The Authority Reporter 2007 and the use of the children’s previous accommodations as a reason for their current accommodation mean that the court must examine the undetermined issues from appeals against these previous accommodations.

 

vii.       If the answer to question vi is in the affirmative, were the children’s previous accommodations justified in all the circumstances of the case.

 

viii.      Was the sheriff justified in refusing to admit any of the recording and transcript of 15 July 2014.

 

ix.        Did the private discussion of the case by the panel constitute an irregularity in the conduct of the case.

 

x.         Did the supervision requirements lapse on 02 May 2014.”

 

Questions 1-8 of this list had been the questions posed by the appellant in his original application for a stated case.

[12]      The questions identified for the sheriff for the opinion of this court are as follows:

“1.       Was I, in all the circumstances of each case, entitled to confirm the decision of the Children’s Hearing?

 

2.         Was I entitled to refuse to receive in evidence the Appellant’s clandestine recording of the hearing on 15 July 2014?

 

3.         Did the proceedings at the Children’s hearing on 15 July 2014 and the proceedings before the Sheriff on 15 September 2014 constitute a lawful review of the supervision requirement in accordance with the statutory provisions, the ECHR and the judgments of higher courts. “

 

The submissions by the appellant in the appeal to the sheriff
[13]      I have considered the written submissions including the supplementary submissions by the appellant.  These submissions are important because they form the basis of the appeal which the sheriff was invited to consider and decide by the appellant.  The task of the sheriff was not to consider all the voluminous paperwork in the case and come to his own decision.  He required to consider the appeal as presented to him.

[14]      I consider that the sheriff is entitled to interpret the submissions by the appellant as an attempt to attack in some way the compliance of the Children’s Hearing with the European Convention on Human Rights Act.  The sheriff correctly identified and informed the appellant that a section 51 appeal under the 1995 Act cannot be used to seek a declarator that the legislation establishing and regulating the Children’s Hearing system is incompatible with the ECHR.  Against the background of what appeared to be rather random submissions about the ECHR, training resources standards, Scottish Government responses and some case law, the bald assertion is made by the appellant that the Children’s Hearing of 15 July 2014 had no authority to act and that article 8 of the ECHR had been violated. 

[15]      There are references in the submissions of the appellant to proceedings other than the proceedings on 15 July 2014, to generalities about Children’s Hearings habitually ignoring human rights issues for a number of years, references to other Children’s Hearings involving other children.  There is interspersed a scattering of case law.  There are some scattered references in the submissions to information about the welfare of the children JB and HB considered by the Children’s Hearing.  This culminates in the submission in paragraph 53 that “the entire Children’s Hearings procedure does not satisfy the article 6 requirements. ...”  In paragraphs 54 to 64 of the submissions there are set out various disputed facts from the perspective of the appellant dating back to 2006 tracking through the history of the children from his perspective.

[16]      In paragraph 6 of his note in the stated case the sheriff concludes that

“... the submissions appeared notable for their lack of any specific complaint about the conduct of the hearing on 15 July 2014.  It comprised a somewhat rambling account of historic complaints and a number of claims that the whole system of Children’s Hearings was not ECHR compliant.” 

 

It is also plain from the note in paragraph 12 that during oral submissions, the sheriff attempted to elicit from the appellant some legally relevant basis for the appeal.  The sheriff is unable to identify any such relevant basis.

[17]      It is against that background that the sheriff made his findings in fact and law.  In paragraph 12 the sheriff concludes “that it could not be said that the decision of the hearing on 15 July 2014 was not justified in all the circumstances of the case”.  He refused the appeal.

 

The role of the Court of Session in this appeal and the questions in the stated case
[18]      The appellant appealed to the Court of Session.  The appeal before this court is a statutory appeal under and in terms of section 51(11) of the Children (Scotland) Act 1995 (“the 1995 Act”).  Section 11 states:

“... an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case—

...

(b) to the Court of Session from any decision of the sheriff such as is mentioned in sub-paragraphs (i) to (iii), of paragraph (a) above... and the decision of the Court of Session in the matter shall be final.”

 

[19]      It is essential to understand that there are clear statutory limitations to the appeal process before this court.  The form of the appeal is by way of stated case and the grounds of appeal are limited.  This is a very different kind of appeal from the appeal under section 51 to the sheriff.  It is also necessary to understand the decision making of the sheriff in the appeal and the particular nature of the appeal which he heard.  The statutory appeal to the Court of Session is intended to provide oversight of the decision making of the sheriff within the constraints of the statutory provisions.

[20]      This court does not hear evidence and unlike the sheriff has no fact finding role.  The facts, if in dispute, are a matter for the sheriff to determine.  The facts found by the sheriff insofar as relevant are to be found in the stated case.  As no evidence was led before the sheriff it is not open to the appellant in this case to invite this court to find facts other than that found by the sheriff.

[21]      It is the task of the appellant to identity and focus in this appeal the relevant submissions which bear upon the legal questions which this court has been invited to answer.  It is for the appellant to persuade the court by relevant submission that the sheriff has erred in law or that there has been some other irregularity in the conduct of the appeal before the sheriff.

 

The appeal hearing
[22]      At the hearing this court informed the parties that we had read the stated case, the appendices and all the written submissions by both parties in this appeal and in relation to the appeal before the sheriff including additional submissions which were produced by the appellant at the Bar.  The appellant stated to the court that he was content that the court decide the case on the basis of the written material.  Mr Dickson, for the respondent, in response submitted that he was similarly content for the case to be decided on that basis. 

 

Decision
[23]      Throughout the written submissions, lodged by the appellant in this appeal, various and numerous complaints are made but what is lacking is an attempt to focus the issues in the appeal in a relevant way.  There appears to be a number of fundamental misunderstandings about the role of this court and a misconception that this court should deal with disputed factual matters or resolve complaints raised by the appellant about alleged procedural problems and issues of law not focussed in the stated case.  For example, I observe that in the note of argument for the appellant there are submissions about factual matters including the disability of TB, the circumstances of the children under reference to various reports, and submissions that the current interference in the children’s lives is not in accordance with the law.    There are submissions on the scope of the appeal but these do not refer to the relevant statutory provisions or seek to focus the case in a way which is relevant.  On the day of the hearing of the appeal further detailed submissions were lodged by the appellant detailing factual matters including current issues about the welfare of the children HB and JB.

[24]      As I have stated, this court is not a primary finder of fact and any adjustments proposed by the appellant to add to the findings in fact are not relevant to this appeal.  There is no attempt in the written submissions in the appeal to engage with the questions of law which the sheriff set out in the stated case. 

[25]      There is some criticism by the appellant of a failure by the sheriff to include all the questions which the appellant wished answered in the stated case.  I merely observe that there is a responsibility on the sheriff, in the exercise of his duties, to consider the relevancy of questions and focus the case, if that is possible, for this court taking into account the issues raised by a party.  In this case I am in any event satisfied that the general questions posed by the sheriff are wide enough to cover all the specific questions of the appellant which are set out above at paragraph [11].  Turning to the specific questions put forward by the appellant in the note of adjustments, I am of the opinion that (i) and (ii) are covered by question 3 set out by the sheriff.  In the context of the appeal which was presented to the sheriff, we are unpersuaded that (iii) is relevant but in any event we consider this is covered by question 1.  The appellant’s question (iv) is covered by question 1.  The appellant’s question (v) is sufficiently covered by question 3.  The appellant’s question (vi) in so far as it makes sense, is covered by question 1.  Question (vi) is not in any event relevant in the context of the appeal considered to the sheriff.  The appellant’s question (vii) is covered by question 1 albeit it seems of marginal relevance in the context of the appeal by the sheriff.  The appellant’s question (viii) is covered by question 2.  The appellant’s question (ix) would only arise in the event of a positive answer to the sheriff’s second question. Finally, the appellant’s question (x) is covered by the sheriff’s question 3.

[26]      I turn now to consider the questions of law raised by the sheriff in the stated case.  The first question states:

“Was I, in all the circumstances of each case entitled to confirm the decision of the Children’s Hearing?”

 

In paragraphs [12] to [16], I have considered the sheriff’s approach to the written and oral submissions in the appeal.  We consider that the sheriff was correct in his conclusions that nothing relevant to justify interfering with the decision of the Children’s Hearing was put before him by the appellant.  In these circumstances it was not the task of the sheriff to conduct some kind of open-ended survey of the paperwork with a view to substituting his decision for the decision of the Children’s Hearing.  This is a case in which parties agreed that there would be no evidence.  In the absence of any relevant legal issue arising in the submissions which would justify the sheriff in interfering with the decision of the Children’s Hearing, the sheriff could only reach the decision which he did.

[27]      In this appeal I have looked in vain for any relevant criticism on behalf of the appellant of the sheriff’s decision making in this context.  I therefore answer question 1 in the affirmative. 

[28]      The second question states:

“Was I entitled to refuse to receive in evidence the appellant’s clandestine recording of the hearing on 15 July 2014?”

 

[29]      I accept that the appellant does refer to this issue particularly in paragraphs 32 to 50 of his written submissions albeit the focus is the content of the recording of 15 July 2014, rather than whether or not the sheriff was entitled to refuse to hear such evidence in the appeal before him.  In my opinion, the sheriff has a discretion in the appeal procedure.  In this case it had been agreed in advance that the hearing would be non‑evidential and based on submissions.  I note that the limited form of the appeal hearing is one of the reasons given by the sheriff in paragraph 9 of his note for refusing to admit evidence of the recording.  On that basis alone I consider that the decision was well within the discretion of the sheriff.  I note the other reasons given and consider it unnecessary in this case to determine whether contempt of court applies.  Leaving aside the question of contempt of court, I am of the opinion that there were good reasons given by the sheriff to justify his decision.  I answer question 2 in the affirmative. 

[30]      The third question states:

“Did the proceedings at the Children’s Hearing on 15 July 2014 and the proceedings before the sheriff on 15 September 2014 constitute a lawful review of the supervision requirement in accordance with the statutory provisions, the ECHR and the judgement of higher courts?”

 

In my opinion no error of law by the sheriff has been identified by the appellant in relation to the relevant statutory provisions, ECHR or case law in this appeal, for the reasons given.  I answer question 3 in the affirmative.

[31]      I also note that there is another Children’s Hearing to be held on 9 July 2015 in relation to the children HB and JB.  In my opinion there is no merit in this appeal and the appellant should perhaps consider how best to present his position to the Children’s Hearing.  The factual matters which the appellant wished to raise with this court about the current welfare and circumstances of his children may be raised by him in a few days when the Children’s Hearing sits to consider the case.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 56

XA12/15

 

Lady Dorrian

Lady Clark of Calton

Lord McGhie

OPINION OF LORD MCGHIE

in the stated case

by

Malcolm Garden, Esq, Sheriff of Grampian Highlands and Islands at Aberdeen

 

for the opinion of the Court of Session

in the appeal under section 51(11)(b) of the Children (Scotland) Act 1995

 

by

 

AM

Appellant;

against

 

ELIZABETH TEMPLETON, LOCALITY REPORTER MANAGER

Respondent:

Act:  Party

Alt:  C Dickson, Solicitor Advocate;  Anderson Strathern LLP

8 July 2015

[32]      I am grateful to Lady Clark for her full opinion dealing with the merits of this appeal.  As she makes clear, the role of this court is limited to consideration of the disposal by the sheriff of the material before him.  I entirely agree with her conclusions and observations.  However, I would like to comment on two matters which, even if not fully explored in the court below, can be identified as having been raised by the grounds of appeal to the sheriff.  The considerable amount of work which has gone into the preparation of the appellant’s written note of argument to this court has cast some further light on these specific points.  I hope it may be of some assistance in any subsequent proceedings to set my views out briefly on them. 

[33]      The appellant is plainly keen to have many questions answered.  However, decision making by a children’s hearing is done in the context of a system which has been considered by this court and found to be compliant with the ECHR.  The focus of a hearing is on the practical arrangements for care of the children.  A hearing may have to make a decision on disputed questions of fact.  But it may well be able to make a proper decision about the welfare of the children without having to come to a specific view on all disputed facts.  There is said to be a dispute as to whether the children’s hearing requires to “determine human rights issues”.  But I think it clear that a hearing need not determine any issues unless they consider it essential to do so to allow them to make their decision about the best interests of the children. 

[34]      The two matters I wish to address arise from the original appeal.  That was based on the single contention that “the measures prescribed by the supervision requirements are not appropriate in all the circumstances of the case”.  The appellant sought to support that by a list of eight propositions of which seven referred either generally to “issues” or more specifically to “human rights issues” without identifying the particular issues or attempting to tie them to the arrangements made for the children at any specific time.  One ground, ground 5.3, was a little more specific.  It raised the two matters in the following terms: 

“The children’s hearing of 15 July did not consider the matters which I considered to be the main issues in the case, including the ECHR requirements reviewed in Saviny v Ukraine 2008, and whether the supervision requirements were lawfully reviewed within the statutory year.”

 

As I read it, the decision of the ECtHR in Saviny v Ukraine did not purport to lay down any new principles.  It affirmed certain established principles: for example, that there must be an adequate basis of fact for decisions to keep children from their parents and that the presumption is against such separation.  There is an obligation on the State to take positive steps to facilitate the reuniting of children with the natural parents where possible.  However, these matters are well understood.  Section 73 of the 1995 Act seems to me to be to a broadly similar effect:

“No child shall continue to be subject to a supervision requirement for any period longer than is necessary in the interests of prolonging or safeguarding his welfare.”

 

But it must be recognised that the general onus on the State to show why the children should not be returned to their parents, does not apply to every evidential detail.  The practical burden of proof of particular matters depends on circumstances.  Reference to general principles about onus is seldom of much assistance to a children’s hearing which will inevitably have to weigh up a good deal of material and come to a positive conclusion on the basis of it.  In short, it does not appear to me that any hearing would require to give consideration to the Saviny case, as such.  A children’s hearing does not require to consider case authorities or text books unless there is not only some dispute about an issue of principle but the hearing also considers that dispute is one which has to be resolved before it can make a decision about the welfare of the children. 

[35]      The second point appears to have been the main basis for the assertion, repeated by the appellant in broad terms, that the current interference in the children’s lives is not in accordance with the law.  Specifically, the appellant asserts that the supervision requirements were not lawfully reviewed within the statutory year.  If I have understood matters correctly his intention has been to contend that what was described as a hearing on 22 April was not in law to be treated as a hearing for the purposes of section 73(9).  If so, the requirement that the children be subject to compulsory measures of supervision would have lapsed on 2 May 2014 in terms of section 73(2). 

[36]      Although the basis for this proposition was not set out very clearly, two possible arguments might be found in the material before us.  As the decision of the hearing on 22 April was set aside by the sheriff of consent of the reporter, it might have been contended that the proceedings on that date had to be regarded as not having taken place.  It does not appear that the appellant founded on any such argument.  In any event, I am satisfied that this line of argument has no substance.  There was a hearing and a decision was made.  The fact that the decision was subsequently set aside does not change that. 

[37]      The argument set out before the sheriff appears to have been based on an alleged impropriety in relation to the attendance of one of the children.  It was this argument which the appellant now seeks to support by reference to H v Mearns 1974 SLT 184.  

[38]      Mearns was about an application to a sheriff for establishment of grounds of referral.  The relevant statutory provision said explicitly “the application shall be heard by the sheriff in chambers within twenty-eight days of the lodging of the application.”  The court officials fixed a date for a hearing within the 28 days and duly cited the parents and child.  However, at the same time they wrote to the parents and child to say that they need not attend on that date as no evidence would be led, and to intimate the date fixed for the hearing.  The latter was outside the statutory twenty eight days.  On the first date the sheriff simply signed an interlocutor appointing a hearing on the second date.  On appeal, the court held that what had happened on the first date was not part of a “hearing”.  This was because there had been no discussion of the case before the sheriff on that date:  per Lord Fraser p 185.  The proceedings were purely formal as their outcome had been predetermined.  That is very different from the present situation.  The case is not authority for the proposition that if there is any impropriety, such as wrongful exclusion of an entitled party from part of a hearing, the hearing will be deemed not to have taken place.  

[39]      In the present case it appears that the argument is based on an assertion that although the child should have been entitled to attend the whole hearing, she did not in fact do so.  It is asserted that she went off to get a sandwich and that hearing continued without her.  There is no suggestion that the hearing deliberately decided to exclude her.  But, in any event, I have no doubt that in substance there was a hearing on the 22 April and that the supervision requirements did not expire on 2 May 2014.  Accordingly, the Children’s Hearing on 15 July 2014 was clearly entitled to deal with the matter.

[40]      It may be appropriate to add that in presenting his arguments to any further hearing, the appellant should make sure that he tries to express clearly any submissions about the practical matters relating to the current welfare of the children.  If he thinks that it is essential to his argument to establish the truth of some disputed issues of fact, he will need to present suitable evidence.  The Children’s Hearing will, of course, have to reach its own conclusion as to whether resolution of such issues is relevant to the decision it requires to make.