Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK

 

[2016] SC LER 41

B15/16

JUDGMENT OF SHERIFF PHILIP MANN

 

In causa

 

Appeal under section 154 of the Children’s Hearings (Scotland) Act 2011

 

by

CP

relative to

The Child E

 

 

Lerwick 13 May 2016

Act: Mr Mallon for the appellant (mother of the child), personally present   

Alt:  Mrs McKay, Children’s Reporter

Mr Black, solicitor for the relevant person W P (maternal grandmother of the child), personally J P, Relevant person (Father of the child), personally present

V B, Relevant person (maternal great grandmother of the child), personally present

The sheriff, having heard Mr Mallon for the appellant, Mr Black for WP and Mrs McKay for the Reporter, the other relevant persons having declined to address the court, Allows the appeal; Requires the Principal Reporter to arrange a children’s hearing for the purpose of reviewing the compulsory supervision order, in particular by considering the appellant’s request for a rehabilitation plan to return the child to the care of the appellant to be put in place.

 

Note

1.         Introduction

1.1       This is an appeal in terms of section 154 of the Children’s Hearings (Scotland) Act 2011 against a decision of the Children’s Hearing to review a compulsory supervision order.

1.2       The appellant is the child’s mother.  The other relevant persons who attended the hearing of the appeal were the child’s father, the child’s maternal grandmother and the child’s maternal great grandmother.

 

2.         Statutory Provisions relevant to the Appeal

2.1       The following are the statutory provisions relevant to the appeal: -

The Children’s Hearings (Scotland) Act 2011

131 Duty of implementation authority to require review

(1) The implementation authority must, by notice to the Principal Reporter, require a review of a compulsory supervision order in relation to a child where the authority is satisfied that one or more of the circumstances set out in subsection (2) exist.

(2) Those circumstances are

(a) the compulsory supervision order ought to be terminated or varied,

132 Right of child or relevant person to require review

(1) This section applies where a compulsory supervision order is in force in relation to a child.

(2) The child may by giving notice to the Principal Reporter require a review of the order.

(3) A relevant person in relation to the child may by giving notice to the Principal Reporter require a review of the order.

(4) The order may not be reviewed

(a) during the period of 3 months beginning with the day on which the order is made,

(b) if the order is continued or varied, during the period of 3 months beginning with the day on which it is continued or varied.

133 Principal Reporter's duty to initiate review

The Principal Reporter must initiate a review of a compulsory supervision order in relation to a child if

(a) the order will expire within 3 months, and

(b) the order would not otherwise be reviewed before it expires.

138 Powers of children's hearing on review

(1) This section applies where a children's hearing is carrying out a review of a compulsory supervision order in relation to a child.

(2) If the children's hearing considers that it is appropriate to do so, the children's hearing may defer making a decision about the compulsory supervision order until a subsequent children's hearing under this section.

(3) Otherwise, the children's hearing may

(a) terminate the compulsory supervision order,

(b) vary the compulsory supervision order,

(c) continue the compulsory supervision order for a period not exceeding one year.

139 Powers of children's hearing on deferral under section 138

(1) This section applies where under subsection (2) of section 138 a children's hearing defers making a decision about the compulsory supervision order in relation to a child until a subsequent children's hearing under that section.

(2) The children's hearing may continue the compulsory supervision order until the subsequent children's hearing.

(3) If the children's hearing considers that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary as a matter of urgency that the compulsory supervision order be varied, the children's hearing may make an interim variation of the compulsory supervision order.

154 Appeal to sheriff against decision of children's hearing

(1) A person mentioned in subsection (2) may appeal to the sheriff against a relevant decision of a children's hearing in relation to a child.

(2) The persons are

(a) the child,

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

(c) a safeguarder appointed in relation to the child by virtue of section 30.

(3) A relevant decision is

(a) a decision to make, vary or continue a compulsory supervision order…

156 Determination of appeal

(1) If satisfied that the decision to which an appeal under section 154 relates is justified, the sheriff

(a) must confirm the decision, and

(b) may take one or more of the steps mentioned in subsection (3) if satisfied that the

circumstances of the child in relation to whom the decision was made have changed since the decision was made.

(2) In any other case, the sheriff

(a) must

(i) where the decision is a decision to grant a warrant to secure attendance, recall

the warrant,

(ii) where the decision is a decision to make an interim compulsory supervision

order or a medical examination order, terminate the order,

(b) may take one or more of the steps mentioned in subsection (3).

(3) Those steps are

(a) require the Principal Reporter to arrange a children's hearing for any purpose for which a hearing can be arranged under this Act,

(b) continue, vary or terminate any order, interim variation or warrant which is in effect,

(c) discharge the child from any further hearing or other proceedings in relation to the grounds that gave rise to the decision,

(d) make an interim compulsory supervision order or interim variation of a compulsory supervision order, or

(e) grant a warrant to secure attendance.

 

            The Children’s Hearings Rules 2013

Rule 61

(1) Where the children's hearing proceeds under section 91(2), 119(2) or 138(2) of the Act, without prejudice to the powers of the children's hearing in section 92 (powers of grounds hearing on deferral), 120 (powers of children's hearing on deferral under section 119) or 139 (powers of children's hearing on deferral under section 138) of the Act, the children's hearing may

(a) …

(b) require the Reporter to obtain any report from any person which the children's hearing considers would be relevant to any matter to be determined by the hearing;

(c) set a date for the subsequent children's hearing to be held under section 119 or 139 of the Act, as the case may be…

 

3.         History of the Case

3.1       On 10 July 2015 at Lerwick Sheriff Court it was established that in terms of section 67(2)(b) of the Children’s Hearings (Scotland) Act 2011 a schedule 1 offence was committed in respect of E.  Amongst the supporting facts established were the following: -

1. E was born on 23 January 2014.
2. On or around 13 February 2015, E was assaulted, resulting in significant bruising to her face, head, neck and back.
3. The time of the assault is not known.During the twenty-four hours prior to her injuries coming to light E was in the care of either or both [her mother] and [her mother’s then partner], including several hours in the sole care of [her mother’s then partner].

3.2       The case was remitted to the children’s hearing which, in due course, made a compulsory supervision order with an expiry date of 30 July 2016.  The child has been subject to compulsory measures of care in terms of interim compulsory supervision orders and then the compulsory supervision order since early 2014.  In terms of these orders the child has resided with one or other of her grandmothers with her mother having extensive contact supervised by one or other of the grandmothers or by the child’s maternal great-grandmother.  No contact has been allowed between the child and the mother’s then partner who featured in the grounds hearing before the sheriff.

 

4          The Children’s Hearing to Which the Appeal Relates

4.1       On 12 April 2016 a children’s hearing was convened at the behest of the implementation authority in terms of section 138(2).

4.2       At that hearing the child’s maternal great-grandmother was deemed to be a relevant person.

4.3       The child’s mother took advantage of the hearing to request that the children’s hearing consider putting in place a rehabilitation plan to return the child to her care. She requested, in effect, that the hearing defer making a decision until a subsequent children’s hearing to allow receipt and consideration of a report of an assessment of the mother by a child psychologist which had been carried out some months previously.

4.4       The hearing declined to defer consideration of the matter.  They concluded the review of the compulsory supervision order by varying it in regard to the child’s residence and issues of contact.  No other significant variations were made.

4.5       Included in the reason for varying the order was the following: - “While there are outstanding reports it was acknowledged that social work could bring this back at any time.”

4.6       The mother appeals against the decision of the children’s hearing to vary the compulsory supervision order.

 

5          The Appeal

5.1       In her note of appeal, the mother complains that the children’s hearing fettered their discretion by refusing to consider her request for “a continuation”.  She complains that the refusal had been on the basis that the hearing had been convened only to consider a request to change the child’s place of residence.  Whilst she acknowledged that she had been interviewed by the police under caution but not charged with any crime, she complained that the children’s hearing had taken account of an irrelevant consideration, namely that they would have to await the outcome of a criminal charge of attempted murder against her.  Finally, she complained that by delaying a decision on her request for consideration of a rehabilitation plan on the basis that there may be a criminal prosecution at some undetermined time in the future amounted to a breach of her right in terms of Article 6 of the European Convention on Human Rights to have her civil rights and obligations determined by the children’s hearing within a reasonable time.

5.2       In her written answers to the note of appeal the Reporter maintains that the children’s hearing did consider the appellant’s request for a deferment but refused it on the basis that there was enough information available to them to enable them to make a substantive decision.  They had made the decision not to continue the compulsory supervision order beyond its expiry date of July 2016 “in order to ensure that the order would be reviewed again in a timely manner when the psychological assessment was likely to be available.”

5.3       At the appeal hearing Mr Mallon appeared for the appellant.  Mr Black appeared for the child’s maternal grandmother.  Mrs McKay appeared for the Reporter.  The child’s maternal great grandmother and the child’s father were also present but were not represented.  They took no active part in the appeal.

5.4       Mr Mallon adopted the terms of the written note of appeal.  He made it clear that no issue was taken with the actual variations made to the compulsory supervision order.  He was supported in the appeal by Mr Black.  Mrs McKay formally maintained her opposition to the appeal but came to acknowledge that although the children’s hearing had considered the appellant’s request for a deferment of the hearing they, effectively, had not considered her request for a rehabilitation plan to be put in place.  She maintained that there had been no procedural irregularity.

 

6          Discussion and Decision

6.1       In this appeal the mother complains that the children’s hearing wrongly refused to entertain her request for a rehabilitation plan to be put in place and instead concluded the review after considering only the issue raised by the implementation authority.  She complains also that the children’s hearing wrongly refused to defer consideration of the order to enable them to obtain and consider a report from the child psychologist who had carried out the assessment of her at the behest of the social work department.

6.2       The Reporter’s position was that the children’s hearing thought that it had all the information necessary to carry out and conclude the review.  She conceded that, effectively, the hearing had not considered the issue of a rehabilitation plan.

6.3       When reviewing a compulsory supervision order the children’s hearing ought not to restrict itself to a consideration of the issue raised by the party seeking the review.  It ought to consider all issues pertinent to the order reasonably raised by all parties, particularly those other than the implementation authority.  If it were otherwise then, depending on the timing of the review, this could have a significantly detrimental impact on the ability, and indeed the right, of those parties to have the order reviewed.  This is because upon conclusion of a review those parties are precluded by section 132(4) from requiring any further review for a further period of three months.  This is in contrast to the implementation authority who can, and must, require a review at any time in terms of section 131 if they are satisfied that the order should be terminated or varied.

6.4       In this case the child’s mother took advantage of the review required by the implementation authority to request consideration of the implementation of a rehabilitation plan.  Given the passage of time since the order was made, the fact that the child had all along been cared for within the birth family and the fact that the mother had all along been exercising extensive contact with the child this was, in my view, a reasonable request.

6.5       It was known that a psychologist had carried out an assessment of the mother some considerable time before the hearing and that no report of that assessment had ever been made available.  Such a report would be highly relevant to the issue of a rehabilitation plan. In my view, no reasonable children’s hearing would have concluded the review of the order at that time without seeking to consider such a report.

6.6       There was also the issue of the possible prosecution of the mother in connection with the assault on the child which led to the section 67(2)(b) ground being established.  I leave aside whether the mother was actually charged with attempted murder or whether she had simply been interviewed under caution without charge.  Quite apart from that, more than a year had elapsed since the assault had taken place.  The issue of potential criminal charges against the mother was clearly a major stumbling block to consideration of a rehabilitation plan.  Given the passage of time and the importance of the matter any reasonable children’s hearing would have wanted to have more information on that issue before concluding the review at that time.  I do not accept the appellant’s contention that this was an irrelevant consideration.

6.7       The children’s hearing had the power to take a proactive approach in regard to these matters and should have done so.  They could and, in my opinion, should have deferred making a decision in terms of section 138(2).  They then could and, in my opinion, should have required the reporter, in terms of rule 61(1)(b), to obtain reports from the child psychologist in regard to the assessment of the mother and from the police and/or the procurator fiscal in regard to the issue of criminal charges.  To have not done these things was unfair to the mother and amounted to a procedural irregularity.

6.8       By concluding the review, the children’s hearing put back by a further three months the ability of the mother to require a further review.  Even then there was no indication when the necessary further information would be available.  It is no answer for the children’s hearing to say “While there are outstanding reports it was acknowledged that social work could bring this back at any time”; or for the Reporter to suggest, no doubt with section 133 in mind, that the children’s hearing had made the decision not to continue the compulsory supervision order beyond its expiry date of July 2016 “in order to ensure that the order would be reviewed again in a timely manner when the psychological assessment was likely to be available.”

6.9       The children’s hearing could have varied the compulsory supervision order on an interim basis in terms of section 139(3) if they considered there to be an urgent need to do so.

6.10     I am not satisfied that the decision of the children’s hearing to conclude the review by varying the compulsory supervision order was justified.  Accordingly, I have allowed the appeal.

6.11     In the circumstances of this case the only appropriate step for me to take is, in terms of section 156(2) and (3)(a), to require the Reporter to arrange a children’s hearing to consider the mother’s request for a rehabilitation plan to be put in place.

6.12     I have no power to direct the children’s hearing as to how they should proceed at such a hearing but no doubt they will consider matters in light of this note.

6.13     I find it unnecessary to resort to European Convention jurisprudence to determine this appeal.