Scottish Court of Session Decisions

At advising, on 12th June 1991, the opinion of the court was delivered by the Lord President (Hope).

OPINION OF THE COURT.—This is an appeal by the acting reporter to the children's panel of Orkney Islands Council by way of stated case under sec. 50 of the Social Work (Scotland) Act 1968. It has been taken against a decision of the sheriff to dismiss applications made to him under sec. 42 of the Act as incompetent. The stated case was signed by the sheriff on 14th May 1991. It was lodged in this court on 21st May, and the appeal was then heard by us over a period of five days from 3rd to 7th June. The case contains 16 questions and deals at considerable length with the history of the case and the sheriff's reasons for what he did. For reasons which will appear later in this opinion we do not propose to deal with all the questions which the sheriff has put before us. But it may be helpful by way of background to summarise the procedural steps which have brought the case to its present stage and the framework of the legislation within which they were being taken. One reason for doing this is to make it clear at the outset that, although the case raised difficult and sensitive issues which aroused strong feelings on either side and have attracted much publicity, there was ample provision within the existing rules of procedure for the taking of the appropriate decisions in a judicial and orderly manner in the best interests of all parties with the minimum of delay. We are in no position to comment on the initial investigations which were carried out prior to the referral of each of these cases by the reporter to a children's hearing under the Act. But once that step had been taken the cases were placed within a well established system of statutory rules of procedure which are open to us to review. It is also necessary to correct the sheriff on some points of detail which were drawn to our attention by counsel where his findings do not set out accurately what took place.

We are concerned in this case with the provisions of Pt. III of the 1968 Act which deals with children in need of compulsory measures of care. Section 32 (1) provides that a child may be in need of compulsory measures of care within the meaning of that Part of the Act if any of the conditions mentioned in subsec. (2) are satisfied with respect to him. One of these conditions, which appears in subsec. (2) (d)of the section, is if any of the offences against children which are mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 has been committed in respect of him or in respect of a child who is a member of the same household. The offences mentioned in that Schedule include any offence involving the use of lewd, indecent or libidinous practices or behaviour towards a child under the age of 17 years—in short, any offence of the character now commonly referred to as child sexual abuse. There are various other conditions listed in subsec. (2) such as if the child is beyond the control of his parent or is falling into bad associations or is exposed to moral danger or has committed an offence. The only conditions which arise in the present case are that under subsec. (2) (d) to which we have referred and also the condition mentioned in subsec. (2) (b) that the child is falling into bad associations or is exposed to moral danger. Section 37 (1A) provides that where a local authority receive information suggesting that a child may be in need of compulsory measures of care they shall cause enquiries to be made into the case and give to the reporter, who is an officer appointed by the local authority under sec. 36 (1), such information about the child as they may have been able to discover. Provision is also made by sec. 37 (2), in the case of any child in respect of whom any of the offences mentioned in Sched. 1 to the 1975 Act has been or is believed to have been committed, for a constable or any person authorised by any court or by any justice of the peace to take that child to a place of safety, to be detained there until arrangements can be made for him to be brought before a children's hearing under the following provisions of Pt. III of the Act. It was a result of information obtained by the Orkney Islands social work department when interviewing three children during February 1991 that an application was made to the sheriff in Kirkwall for warrants to detain the children with whom the present case is concerned. These were nine children from four different families of various ages between 8 and 15 years. The warrants were granted on 26th February 1991 and the children were all detained early the following morning. They were taken to places of safety on the mainland of Scotland from their homes on South Ronaldsay.

Although this case is not concerned directly with the granting and renewal of the warrants for the children's detention, it is important to note the system which sec. 37 lays down for this to be done. Subsection (3) (c) provides that a child who has been taken to a place of safety under a warrant granted under subsec. (2) shall not continue to be detained under that subsection after the day on which a children's hearing first sit to consider his case or for a period exceeding seven days. The intention is that, if any further detention is necessary, that should be decided upon as soon as possible by a children's hearing. The reporter is required, wherever practicable, to arrange a children's hearing to sit not later than in the course of the first lawful day after the commencement of the child's detention to consider the case. If the children's hearing are unable to dispose of the case then and are satisfied that his further detention is necessary in his own interest, they may issue a warrant requiring the child to be detained for such a period not exceeding 21 days as may be necessary. Provision is made by subsec. (5) for a warrant authorising detention to be renewed on cause shown, on one occasion only, for a further period of 21 days. If a further period of detention is then required, the reporter may apply to the sheriff for a warrant under subsec. (5A) for such period not exceeding 21 days as may be necessary, and this warrant may also be renewed under subsec. (5B) for a further period of 21 days. It can be seen that provision is made for the detention of the child on cause shown for a total period of not more than 13 weeks. The policy of the Act is that the children's hearing should be in a position to decide whether or not the child is in need of compulsory measures of care within that period and, if so, to dispose of the case either by discharging the referral or by making a supervision requirement under sec. 44. There is provision for appeals to be taken to the sheriff under sec. 49 against the issue by a children's hearing of a warrant for the detention of the child.

A children's hearing met to consider the cases of seven of the nine children on 1st March 1991. The cases of the remaining two children, who were the T. children, were considered at a similar meeting early on 5th March 1991. These were meetings of which no notification had been given to the children or to their parents. No decision was taken at that stage about the further detention of the children or the issuing of a warrant under sec. 37 (4), no doubt for the reason that these were preliminary meetings only and not a children's hearing convened in terms of the Act. The only persons present at these meetings were the chairman and members of the children's hearing and the reporter. It was decided to dispense in each case with the presence of the children at the initial hearing of their cases under the Act for reasons which were expressed in the following terms:

"1. In order to avoid a traumatic experience for the child, in what will be a formal putting of the grounds and probable referral to proof, it was felt unnecessary to have the children present at the initial hearing, though the hearing were satisfied that in the event of a substantive hearing to dispose of the case then the children's attendance was essential. 2. The grounds for referral are in terms of Schedule 1 to the Criminal Procedure (Scotland) Act 1975."

It may be noted in passing at this stage that sec. 40 (2) provides that where a children's hearing are satisfied in a case concerned with an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 that the attendance of a child is not necessary for the just hearing of that case, or in any case where they are satisfied that it would be detrimental to the interest of the child to be present at the hearing of his case, the case, in whole or in part, may be considered in the absence of the child. It is not necessary, in terms of that subsection, that a decision to dispense with the child's presence should have been taken in advance of the hearing at which his case is to be considered. No provision is made in the Act or in the Children's Hearings (Scotland) Rules 1971 for a preliminary hearing of the kind which took place in this case to be held. But, in the circumstances of this case, where the children's hearing was to be convened in Kirkwall and the children were already in places of safety on the mainland, it was obviously necessary for the reporter, whose responsibility it was in terms of sec. 40 (3) to secure the attendance of the children at the hearing of their cases before the children's hearing, to be told whether it was thought necessary for the children to attend. The sheriff has described the decision which was taken on 1st March 1991 as totally illegal and no doubt he would extend that description to that taken at the similar meeting early on 5th March. But in our opinion, properly understood and in its context, it was within the discretion of the children's hearing to meet and deal with the point at the reporter's request so that he could receive necessary guidance as to the steps which he was to take in preparation for the hearing which was to sit to consider these cases in terms of the Act. It was an eminently sensible step in the procedure, even although it had no place in the statutory framework. And provided it was understood that the decision to dispense with the attendance of the children under sec. 40 (2) was being taken only for the guidance of the reporter and had to be considered again when the children's hearing first met to perform its functions in terms of the Act, we can see no illegality or unfairness in what took place.

The children's hearing then sat to consider the cases of all nine children on 5th March 1991. Rule 7(1) of the 1986 Rules provides that where a reporter arranges a children's hearing to consider under sec. 37 (4) the case of a child detained in a place of safety he shall as soon as possible before the hearing give to the child notification of the hearing in the form of a Form 1 in the Schedule to the Rules. That is the form of notification of a children's hearing which is to be given to a child required to attend the hearing, and it is designed to provide him with details of the date, time and place of the hearing at which he is required to attend. The notes attached to the form include the following sentence:

"You must attend the hearing unless you have been told by me that the hearing have decided that your attendance is not necessary."

The reporter prepared forms of notification in the case of each of the nine children addressed to them at their parents' homes dated 4th March 1991. We understand from the stated case that none of these forms were ever posted or delivered to the addresses which they bore. In any event, since the children were no longer living at those addresses and their parents were not aware of the places to which they had been taken, there was no question of them being notified of the hearing by this means. There is no finding in the stated case as to whether or not, and if so when, they were notified that their cases had been referred to a children's hearing and when the hearing was to take place. Section 41 (2) requires a child's parent to attend at all stages of the hearing at which the child's case is being considered unless a children's hearing are satisfied that it would be unreasonable to require his attendance or that his attendance would be unnecessary. Although there is no express finding in the stated case to this effect, we understand that the parents of each of the nine children were present and were represented by counsel when the hearing took place on 5th March 1991. But the children themselves were not present and the hearing proceeded in their absence to consider each case.

The grounds for the referral in each case were identical. They contained allegations that the children were falling into bad associations or were exposed to moral danger and that an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 involving the use of lewd, indecent or libidinous practices or behaviour had been committed in respect of the child or in respect of a child who was a member of the same household. The behaviour was said to include sexual intercourse and/or simulated sexual intercourse between adults and children and between adults which took place during the hours of darkness and included the use of ritualised music, dancing and dress. Section 42 (1) provides: [their Lordships quoted the subsection as set out supra and continued thereafter].

It is not suggested that the chairman failed in his duty so far as the parents were concerned, and we understand—although here again there is no express finding to this effect in the stated case—that it was ascertained that none of the grounds for referral were accepted by any of them. But it was not possible for the chairman to explain the grounds for referral to the children or ascertain whether or not they were accepted by them because the children were not there. The hearing decided to dispense with the presence of the children, in terms of sec. 40 (2) of the Act, since their cases were all concerned with an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975. They also decided to grant a warrant for their further detention under sec. 37 (4), as was necessary if they were to continue to be detained in a place of safety since the sec. 37 (2) warrants had now ceased to have effect. And they decided that each case was to go to proof, so that the sheriff could make a finding as to whether the grounds for referral were established in an application made to him by the reporter to that effect under sec. 42. None of these decisions were in themselves remarkable or at variance with the powers given to a children's hearing by the Act. But the fact that they were taken in the absence of the children, and thus without any explanation having been given to them by the chairman of the grounds stated by the reporter for the referral of their cases to a children's hearing, formed the basis for an argument about the competency of the proceedings which was to be raised repeatedly at later stages in the case and to lead ultimately to the sheriff's decision to dismiss the applications.

We shall return in a moment to the provisions of sec. 42, but it is necessary at this stage to say something more about the provisions of sec. 49 under which appeals may be made to the sheriff against the decisions taken by a children's hearing. Subsection (1) provides that a child or his parent may, within a period of three weeks beginning with the date of any decision of a children's hearing, appeal to the sheriff in chambers against that decision and that the child or his parent or both shall be heard as to the reasons for the appeal. In H and H v. McGregor 1973 S.C. 95, it was held that normal steps taken in the procedural process are not "decisions" within the meaning of this subsection. That was a case where an appeal had been taken under sec. 49 against a decision of a children's hearing by which the reporter was directed to make application to the sheriff under sec. 42 (2) (c) for a finding as to whether the ground for referral was established. It was held that the appeal to the sheriff was incompetent because no "decision" within the meaning of sec. 49 (1) had been made, since the children's hearing were not disposing of the referral. But sec. 49 (5) (a) makes reference to what the sheriff may do where an appeal is taken against the issue of a warrant for detention, so it is at least clear that decisions taken by a children's hearing under sec. 37 (4) and (5) to issue and renew a warrant for a child's detention may be taken to appeal.

In due course an appeal was taken to the sheriff under sec. 49 against that part of the decision of 5th March 1991 by which a warrant was issued under sec. 37 (4). It was heard by the sheriff principal sitting as a sheriff on 6th March 1991, and he issued a judgment on 7th March 1991 confirming the decisions in this respect. One of the points taken in the appeal was that, by dispensing with the presence of the children, the hearing had deprived themselves of the benefit of the children's views on the allegations, and on whether they wished to return home. The sheriff principal's response to this argument was as follows:

"I do not regard that criticism as justified. Section 40 (2) of the Act confers on the hearing a discretionary power to hear any part of the case in the absence of the child. In the exercise of that discretion the hearing were entitled to take the view that at this stage of the proceedings it would be detrimental to the interests of the children to bring them to a hearing with the parents present, to go through the grounds of referral with them, and then possibly to subject them to the distress of having to be taken away again. There may well be occasions in the course of a case like this on which it would be proper for the hearing to have regard to the views of the children. But sec. 40 (2) shows that they are not bound to do so at every stage of the proceedings, and their decision on 5th March to dispense with the attendance of the children was a proper exercise of their discretion which should not be disturbed."

He held that the hearing had material on which they could properly come to a decision that the issue of a warrant under sec. 37 (4) was necessary in the interests of the children and he refused the appeal.

It is worth pausing at this point and noting the significance of the decision which the sheriff principal took at this stage. The immediate effect of the decision was, of course, that the sec. 37 (4) warrants were to continue in force for a period not exceeding 21 days. But the sheriff principal was made aware by counsel of the fact that the grounds for referral had been denied by the parents, so that the hearing were required by sec. 42 (2) (c) to direct the reporter to apply to the sheriff to hear the evidence. It is clear that it was appreciated by all concerned at that stage that the hearing were not able to dispose of the case themselves in these circumstances until the sheriff had made a finding that the grounds for referral were established. It does not appear to have occurred to anybody at that stage that an application to the sheriff under sec. 42 to hear the evidence was incompetent because the children had not been present at the hearing on 5th May 1991. Furthermore, the sheriff principal gave cogent reasons for holding that the decision taken by the hearing on that date to dispense with the attendance of the children was a proper exercise of their discretion which should not be disturbed by granting the appeal. This is not to say that it was not open to the parents or the children, through the curators ad litem who were appointed subsequently in terms of the sheriff principal's interlocutor of 7th March 1991 to represent their interests in the application under sec. 42, to raise the issue again at later stages in the case. And no doubt the sheriff, when he came to deal with the applications, was entitled to take a different view on this issue when the point was raised with him. But we would have expected him at least to appreciate that, since he was differing from the sheriff principal on the point, it was open to argument and that his own view might well not prevail if it were to be taken to appeal.

Meantime, the reporter was taking steps to comply with the instruction which he had been given on 5th March 1991 that he was to apply to the sheriff under sec. 42 to hear the evidence. No record has been shown to us of the precise grounds on which that direction was made. Section 42 (2) (c) provides that in any case other than where the child and his parent accept the grounds stated by the reporter for the referral, or at least do so in part and the children's hearing consider it proper to proceed in respect of the grounds so accepted, they shall, unless they decide to discharge the referral, direct the reporter to make application to the sheriff for a finding as to whether such grounds for the referral as are not accepted by the child or his parent are established having regard to the provisions of sec. 32 of the Act. In the present case it was by now clear, as the sheriff principal pointed out, that a direction under sec. 42 (2) (c) was required because the parents had declined to accept any of the grounds for the referral. Section 42 (7) makes provision for cases where a children's hearing are satisfied that the child for any reason is not capable of understanding the explanation of the grounds of referral or in the course of, or at the conclusion of that explanation, it appears not to be understood by the child. In either of these cases, unless the hearing decide to discharge the referral, it is provided that they shall direct the reporter to make application to the sheriff for a finding as to whether any of the grounds for the referral have been established. A direction under sec. 42 (7) would seem not to be necessary in a case where the parent does not accept the grounds for the referral, since an application to the sheriff will be required in any event. Nevertheless the reporter stated in his applications that they were being made both under sec. 42 (2) (c) and under sec. 42 (7). Perhaps he felt bound to adhere to the form as set out in Form 1 to the Act of Sederunt (Social Work) (Sheriff Court Procedure Rules) 1971. But it would have been better if he had adapted that form to the circumstances of the case, in accordance with r. 4 (2) which states that the application shall be made "as nearly as may be" in that form. As it is, the manner in which he completed the applications led him to assert that:

"The Children's Hearing were satisfied that the said [child] did not understand the explanation of the grounds of referral given under sec. 42 (1) of the said statement of grounds of referral."

As the sheriff has pointed out in the stated case, this was not possible since none of the children were in fact present at the hearing on 5th March. This inattention to detail was unfortunate because it encouraged the argument that the applications were incompetent on the ground that the children's hearing could not have been satisfied that the children did not understand the explanation of the grounds of referral. But there is no doubt that an application to the sheriff under sec. 42 (2) (c) had become necessary because the parents had disputed the grounds for the referral in each case. We shall return to this point when we come to examine the sheriff's reason for his decision to dismiss the applications.

Mention is then made in the stated case of an application to the nobile officium of this court seeking an order to transfer the hearing of the case to another court within the sheriffdom but on the mainland. This application was heard on 26th March 1991, when an interlocutor was pronounced ordaining the sheriff to hear any evidence to be given by any of the children named in the petition in the sheriff's chambers at Inverness. The sheriff has subjected the court's reasons for its decision to some criticism and, although not asked to do so by any of the parties to the appeal, has included questions in the stated case which are directed to those criticisms. We were not invited to deal with these questions by any party at the hearing before us and we decline to answer them. But it is appropriate to add a word or two of explanation in order to dispel any doubts which the sheriff's comments may have raised. It is suggested that in making the order which it did the court overlooked the provisions of sec. 42 (3) of the Act which requires the child to be present throughout the hearing of the application unless the sheriff directs otherwise in terms of r. 8 (3) of the 1971 Procedure Rules. But no reference was made in the opinion to these provisions because the court, in an application to its nobile officium, was not in a position to direct the sheriff as to how he should exercise his discretion under them. It was of course for the sheriff to decide whether, in the exercise of his discretion, the children were to be absent at any stage of the hearing of the application. Nevertheless it was not anticipated that the sheriff would do otherwise than exercise his discretion to that effect when he was hearing the case in Kirkwall in view of the difficulties which were explained by counsel to the court. No general conclusions on this matter are to be drawn from the decision, which was entirely special to the quite exceptional circumstances of this case. The sheriff has also suggested that the court overlooked the point that it is inherent in the office of sheriff that he has jurisdiction to sit, subject to the directions of the sheriff principal, anywhere within his sheriffdom. But the special feature of the present case is that the area of the local authority in Orkney is the islands area which is coextensive with the sheriff court district. It may be that where the local authority area embraces an entire sheriffdom a sheriff can sit to deal with applications under sec. 42 in any part of his sheriffdom. But the view which was taken by the court is that an application under sec. 42 cannot competently be dealt with outside the area of the local authority from which it originates. That meant that in the present case it could not be dealt with, unless by a direction of the court in the exercise of its nobile officium, anywhere outside the sheriff court district of Orkney.

The warrants which had been issued by the children's hearing on 5th March 1991 being due to expire, the hearing met again on 14th March 1991. The hearing decided, in the absence of the parents and the children, to dispense once again with the presence of the children at the next hearing on 25th March 1991 when the question of the renewal of the warrants was to be considered. On 25th March 1991 they were renewed by the hearing under sec. 37 (5) for a further period of 21 days. On 28th March 1991 the parents lodged appeals against these decisions under sec. 49 which came before the sheriff on 29th March 1991. It should be mentioned that he had been sitting in the sheriff court at Kirkwall on 28th March to deal with a number of preliminary motions in connection with the applications under sec. 42 which he had been appointed to hear. Among these was a motion to conjoin all the referrals. He decided on that date to grant the motion in all cases except that he conjoined the applications in relation to the T. children with each other but not with the other applications since at that stage that was all counsel for the T. children were willing to agree. On 3rd April 1991, which was the date when the hearing under sec. 42 commenced, counsel intimated their agreement to conjoining all the applications and this was done. It will be appreciated that one consequence of this step was that any decisions taken in regard to one application had to extend to them all. This has a significance in regard to the sheriff's decision on the competency of the applications to which we shall return.

The children were not represented at the hearing of the appeals under sec. 49 on 29th March 1991. Their curators ad litem, who had been appointed only for the purpose of the applications under sec. 42, were not present nor were their counsel. The sheriff, having heard argument from counsel for the parents and for the reporter, decided to refuse the appeals. No reasons were given by him in writing for this decision at that stage, but the stated case contains a summary of the arguments and the sheriff has taken the opportunity to record his unhappiness at the sufficiency of the information which was placed before him. Section 49 (3) enables a sheriff who hears an appeal under that section to examine the reporter and the authors or compilers of any reports and statements and to call for any further report which he considers may assist him in deciding the appeal. The sheriff did not take any of these steps, but as he points out in the stated case time was short. Section 49 (7) requires that an appeal under that section in respect of the issue of a warrant by a children's hearing must be disposed of within three days of the lodging of the appeal, added to which 29th March 1991 happened to be Good Friday. The sheriff noted that, on the basis of what he had been told of the evidence, if it were true, the children might be at some risk, if not from further sexual abuse then from intimidation in relation to the evidence which they might give. He also noted that, so far as any damage that might be caused to the children by removal and detention in a place of safety was concerned, the damage had been largely caused already, and the commencement of the hearing of the evidence under sec. 42 was only days away. The warrants would be in force for a period of 21 days only from their renewal on 25th March, and when any application was made to him for further warrants under sec. 37 (5A) he would be in a very much better position to deal with them as by then he would have heard at least some of the evidence. His decision in terms of sec. 49 (4) was to confirm the decision of the children's hearing with the result that the warrants continued to have effect.

At the conclusion of the hearing on 29th March which, it should be recalled, had taken place in the absence of the children and their representatives, the sheriff was informed by the reporter's counsel that the hearing under sec. 42 would involve a very large number of productions, including tapes of interviews with children and transcripts of their interviews which were still in preparation. The sheriff understood counsel to be saying that it would be helpful if these could be made available to him as early as possible and if he were to take the opportunity of studying these productions. No one else present took exception to this proposal, and he provided his home address in Aberdeen to which on Sunday, 31st March a large consignment of tapes and documents was delivered with a further delivery on the following day. It was, as he understood it, at the invitation of senior counsel for the reporter that he then read all these documents and listened to the tapes. He thought that he was doing this to assist the presentation of the appellant's case so that he would have a good idea of the sort of evidence to be given when it came to dealing with child witnesses. Unfortunately he did not confine himself to familiarising himself with these productions. As we shall mention later, he went further than that, and it is the use which he then made of this information and the views which he allowed himself to express publicly about their contents before any evidence had been given about them which gave rise to much of the criticism by counsel for the reporter about his handling of this case.

It was on 3rd April 1991 that the hearing under sec. 42 commenced. It was held in the sheriff court at Kirkwall and was largely taken up with arguments on the competency of the proceedings. In the course of the morning the sheriff was informed that the press were asking questions as to why they were not allowed to be present at the hearing and what they would be entitled to report. The sheriff was well aware that there were a number of representatives of the press outside the building and that the case was of great importance which raised matters of intense public interest. The press had been present as of right in terms of sec. 35 (3) at the proceedings before the children's hearing and in other respects the cases had already been very widely publicised. He took no decision at that stage, but after lunch, having been advised that none of the counsel for the curators or for the parents had any objections, he decided to allow representatives of the press to be present, at least for the procedural submissions. Counsel for the reporter had objected to this on the ground of her concern at the level of publicity to date and the sensitive matters which were in issue and because sec. 42 (4) directed the sheriff to hear the applications in chambers. She had submitted that this meant that the applications had to be heard in private, so that it was not competent for the sheriff to allow the press to be present even with the consent of all parties, but he disagreed. The arguments on competency then continued, and the sheriff adjourned the applications until the following morning to consider the matter. The next morning, 4th April 1991, he delivered a judgment by which he sustained the submissions of counsel for some of the curatorsand parents and dismissed the applications as incompetent. He did so despite the fact that counsel for the curator to the T. children had argued that the proceedings were not so fundamentally flawed as to be incompetent and that submission had been adopted by counsel for Mr and Mrs T. Counsel for Mr and Mrs H. also indicated that he did not wish to argue that the proceedings were incompetent. Nevertheless the sheriff took the view that the arguments on competency must apply to all of the children or none of them, and in any event the applications had all been conjoined by this stage so it was not open to him to distinguish between them.

Having given his reasons for the view which he took on the issue of competency and dismissed the applications, the sheriff then went on, in the presence of the press and without pausing to consult with parties about what he was intending to do, to express views on the merits of the case. These views were based on his consideration of the documentary productions and of the tapes of what he described as the crucial interviews. This passage of his judgment amounted in effect to a review of the decision which he had taken six days previously when dealing with the appeals under sec. 49 against the decision of the children's hearing to renew the warrants under which the children were being detained. He asserted that, had he known what he knew now, he certainly would have allowed these appeals and, although conscious of the fact that he had not heard a proof in the case, he allowed himself to express views on the way in which the children had been interviewed. This passage contains severe criticism of the manner in which each of these interviews had been conducted and there are other comments about the difficulty which would be encountered in assessing the reliability of these children in view of the way the interviews had been carried out. There is also comment on certain other productions which had been lodged by the reporter as being likely to have little evidential significance unless one starts off determined to see it. He concluded his remarks with this passage:

"Whatever the truth of the matter, putting what the first three children have said at its highest, I am in no doubt that the risks to the welfare of these nine children in returning them to their parents are far outweighed by the certain damage being done by their continued detention and the sooner they are returned to their parents the better. And if the reporter is still minded to take this matter further I hope he will give very serious consideration, in relation to each child separately, just what is the nature and quality of the evidence he relies on and the manner in which it was obtained, and perhaps also to the wealth of contrary evidence, before he does so."

These remarks were followed by events which are not described in the stated case but were widely reported in the press and on radio and television. They were regarded by many as a direct attack on the reporter and the social work department and led, after a confrontation between various parties involved in the case, to return the children to their homes in Orkney later the same day. We were informed by the reporter's counsel that the damage caused by these events to the evidence of potential witnesses had been very grave. She told us that the whole basis of the cases had been subjected to an unjustified and public attack, the result of which was that it would now be almost impossible to find a witness whose views had not been affected by what had occurred. The decision had therefore been taken on her advice, in view of the prejudice to the interests of justice and the incalculable effect on potential witnesses, that the cases would not be referred back to the sheriff for a decision on the evidence if these appeals were to be allowed.

It is against this background that we must now turn to the questions in the case. The first point to consider is whether we should attempt to deal with them at all, in view of what we have been told by the reporter's counsel as to what his position would be if we were to decide the appeal in favour of his arguments. It is not our function to deal with matters which have become academic and are no longer of any practical importance to anybody involved in the case. But we were assured by counsel for the reporter that he still had an interest in the outcome of the appeal in view of the manner in which the sheriff had disposed of the applications, and that there was also a wider public interest to be served because of the confusion which had arisen out of what the sheriff had done. We recognise the force of these submissions and we have decided that we should proceed to a decision in this appeal. There are some important questions raised in it, especially in regard to the sheriff's decision about the competency of the applications, which has serious implications for the conduct of children's hearings throughout Scotland. It is appropriate that we should give such guidance as we can on these matters to sheriffs and children's hearings in the light of what has occurred. A similar approach to the function of this court was taken in Humphries v. S. 1986 S.L.T. 683 at p. 684H. Also the respondent is entitled to have our views on the question of competency so that, if the sheriff was wrong on this point, the referrals can be discharged on a correct basis at his own instance. Counsel for the curator ad litem to the M. children very properly pointed out that he no longer had an interest to resist the appeal and he expressed doubt as to whether it was proper for him to make any submissions to that effect. Nevertheless he proceeded at our invitation to do so, and we are indebted to him, to senior counsel for the reporter and to all the other counsel who addressed us for the full submissions which they made. As a result we heard argument on all the questions with which we propose to deal.

But, as we said at the outset of this opinion, we do not propose to answer all the questions which the sheriff has included in the stated case. He appears to have overlooked the fact that this is an appeal which must be conducted in accordance with the procedure regulated by the Rules of Court. This was pointed out to him in Kennedy v. A. 1986 S.L.T. 358 at p. 361A, and we have to say once again that it is unfortunate that he has still failed to appreciate the importance of adhering to this procedure. The criticism which was directed at him in that case was for failing to confine himself to facts only without comment when stating in numbered paragraphs the facts and circumstances out of which the case arose, as is required by r. 279 (a). The same criticism can be made of him in this case under reference, for example, to what appears in para. 24. But it is his decision to include questions which were not asked for by any party which is of greater concern here. Rule 289A, which deals with appeals under sec. 50 of the Social Work (Scotland) Act 1968, must be read together with r. 277 which provides for the preparation of the case for the court. This rule allows each party by minute to propose questions as to the subject matter of the case: see para. (a) and (b) of that rule. Paragraph (f) (ii) then provides that the tribunal—which means the sheriff in the present context—may add to the stated case such additional questions as it may think necessary for the due disposal of the subject matter of the case. The words "the case" are defined in r. 276, and they mean the appeal which has been taken against the decision of the tribunal, not the case before the tribunal which gave rise to the appeal. Questions 1 to 9 are directed to various decisions which the sheriff took in the course of the proceedings which were before him at an earlier stage, including the appeals under sec. 49 which were concerned with the warrants which had been renewed under sec. 37 (5). They do not form the subject matter of the appeal to us by way of stated case which has been taken only with regard to the hearing on 3rd April 1991 and the delivery of the judgment the next day. None of the previous decisions were appealed to this court, and they have no bearing on the five questions which were set forth in the reporter's application for the stated case which appear as questions 10 to 14. For this reason, they are not competently before us and we decline to answer them.

There is a further point to be made about questions 15 and 16, which the sheriff has added in response to the reporter's criticism of the comments which he made about the documents and tapes of the interviews. The sheriff has introduced this part of the stated case by saying that in view of these comments he feels bound to offer some justification of them by reference to the transcripts. He then invites us to answer these questions as being of great importance for future cases. We are asked to express a view on the method of questioning by the social work department which took place in this case, and to say whether in view of the manner in which the interviews were conducted the evidence of the statements made by any of the children in the course of the interviews would be admissible as evidence. It would be entirely wrong for us even to attempt to comply with this request. We do not for one moment doubt the importance of these questions to all those who are concerned with cases of this kind. But it is simply not possible for us in this process to conduct the kind of investigation and analysis which would be needed to answer them. The sheriff has provided us with a summary of his own impression of the interviews of three of the children involved in this case, but he has not attempted to provide us with any findings of fact on these matters in the manner appropriate to an appeal by way of stated case. This is an elementary point of practice, and in any event, as the sheriff must have known, this entire chapter of the stated case has no place in the procedure appropriate to an appeal under sec. 50 of the Act.

We are left therefore with five questions, which appear as questions 10 to 14 in the stated case, with which we can competently deal under sec. 50 as raising points of law or irregularities in the conduct of the case which was before the sheriff under sec. 42. Senior counsel for the reporter told us that she did not intend to argue the point raised by question 12, and since no one else sought to address us on this point we need not answer it. She then submitted that we should deal with questions 10 and 14 before dealing with questions 11 and 13, which are concerned with the sheriff's decision on the issue of competency. This was on the view that answers in her favour on questions 10 and 14 would be sufficient to enable us to recall the sheriff's interlocutor and allow the appeal. Question 10, as amended at the bar, and question 14 are in these terms:

"10. Was the sheriff entitled (a) to allow into the hearing in chambers journalists at their request, to be present during part of the submissions made by counsel on 3rd April 1991; (b) to allow journalists to be present during the verbal delivery by the sheriff of his decision in draft form on 4th April 1991 which was in similar but not identical terms to his interlocutor and note of 4th April 1991; and (c) to subsequently issue said interlocutor and note to the media? 14. Was the sheriff entitled to consider and express the views about the merits and disposal, which he does at pages 12–16 of his note, based on some of the productions lodged in respect of applications which the sheriff did not proceed to consider and accordingly in respect of which no evidence was ever before the sheriff?"

It can be seen that these two questions are concerned only with alleged irregularities in the conduct of the case. The argument was that the sheriff exceeded his powers by permitting journalists to be present and by making the remarks which he did at the end of the judgment which he delivered. It was submitted that what he did by making these remarks, especially in the presence of the journalists, was a breach of the rules of natural justice which so undermined his decision on the issue of competency that this in itself was enough to entitle us to reverse that decision and remit the case with a direction to hear the evidence. We do not accept this argument. Assuming that what the sheriff did in these respects was irregular, this does not necessarily mean that he was wrong on the issue of competency. We must examine that issue on its merits in order to decide whether or not the sheriff was entitled to dismiss the applications as incompetent. The manner in which he delivered his judgment on that issue does not mean that the decision itself must be held to be wrong.

So we propose to deal first with the issues of competency, which have been focused in questions 11 and 13, as amended at the bar, in these terms:

"11. In the applications to the sheriff under the Social Work (Scotland) Act 1968 sec. 42, was the sheriff entitled to deal with the point of competency arising out of alleged defects in prior procedure without hearing evidence and without coming to a decision in terms of the 1968 Act sec. 42 (5) and (6)? 13. Was the sheriff entitled in all the circumstances to reach the conclusion in respect of each application that the applications were so fatally flawed as to be incompetent and to dismiss the applications?"

The issues to which these questions are directed are, in short, (1) whether the sheriff was entitled to deal with the question of competency at all, or at least without first hearing the evidence, and (2) whether, even if he was, the decision which he reached was correct. We shall examine the two questions in that order and consider first whether the sheriff was entitled to deal with the issue at all in applications made to him under sec. 42.

The reporter's argument was that the sheriff had no power under the statutory scheme to take notice of or deal with questions of competency. His powers were prescribed for him by sec. 42 (5) and (6) by which he could either, having heard evidence, dismiss the applications and discharge the referrals, or hold the grounds for the referral established and remit the case to the reporter to make arrangements for a children's hearing to consider and determine the case. He had power to dispense with the hearing of evidence in the circumstances described by sec. 42 (6A) and (7), but nowhere in this section was he given power to dismiss an application on the ground that it was incompetent. The only point in the statute which came near to enabling issues as to the competency of decisions by children's hearings to be raised in the course of the proceedings was sec. 49, which provides that any decision of a children's hearing may be taken to the sheriff in chambers on appeal. Counsel recognised however that, in view of the decision in H. and H. v. McGregor 1973 S.C. 95 decisions of a procedural nature, such as to direct the reporter to make application to the sheriff under sec. 42, were not of the kind to which sec. 49 refers. As Lord Wheatley said at p. 101, a decision for the purposes of sec. 49 (1) is a decision disposing finally of the referral. A further indication that decisions of a procedural nature were not intended to be challenged on the ground of competency was to be found in McGregor v. D. 1977 S.C. 330, where it was held that the sheriff was not entitled to dismiss an application under sec. 42 on the ground that it was irrelevant. Lord President Emslie pointed out at p. 337 that the code of procedure contained in the Social Work (Sheriff Court Procedure Rules) 1971 contained no express power to dismiss an application on a preliminary plea to the relevancy without hearing the reporter's evidence. Thus no decision was to be taken on the application until, at the earliest, the conclusion of that evidence. In each of these cases it was pointed out that the Act is designed to secure an informal and expeditious procedure for dealing with children in need of compulsory care, avoiding so far as possible technicalities of legal process. In H. v. Mearns 1974 S.C. 152 the sheriff took the view that he had no power to deal with an objection to competency and he heard the evidence and found the ground for the referral established before the case went to the Court of Session on appeal under sec. 50. The court sustained the objection to competency but did not criticise the view which the sheriff had taken of his powers. Merrin v. S. 1987 S.L.T. 193, where the sheriff dismissed an application under sec. 42 as incompetent on the ground of nonage, was of no assistance in this case because that was a ground for referral which could not as a matter of law ever be established. So, as the Lord Justice-Clerk (Ross) said at p. 196L, there would have been no point whatsoever in the sheriff hearing the evidence.

The sheriff's approach, which was supported by those of the respondents to this appeal who addressed us on this issue, was that it was pars judicis to notice any illegality in the course of the proceedings. He took the view that the illegality was obvious on the face of it, since there was an obviously false statement in the applications that an explanation had been given to the children and not understood by them. We were referred to McGregor v. L. 1983 S.L.T. (Sh. Ct.) 7, where the sheriff took the view that it was pars judicis to consider whether the application before him was a lawful one. He dealt with a plea to competency on the ground that the referral was time barred, which in the event he repelled. Another example of an application under sec. 42 in which the sheriff dealt with a plea to competency is L. v. McGregor 1980 S.L.T. 17. In that case a preliminary plea taken on the grounds of no jurisdiction was repelled and the Court of Session did not criticise the sheriff for dealing with it. As counsel for the curator ad litem to the M. children pointed out, in none of the cases which we have mentioned was it asserted that it is not open to the sheriff to consider a question of competency as a preliminary to hearing evidence in an application made to him under sec. 42. Nevertheless the only previous case where a sheriff has sustained a plea to the competency without hearing evidence is Merrins, where the grounds for referral were incapable of being established because the child was under the age of eight years and as a matter of law could not have committed the offences. And it should be noted that in none of the cases where a sheriff has previously dealt with a plea to the competency was the issue raised one of an irregularity in the proceedings which could be corrected. They were all cases where the point taken, if sound, would have brought the referral by the reporter to an end.

Had this been a case such as Merrins where it would have been altogether pointless to hear any evidence we would have agreed with the sheriff that it was open to him to deal with the plea. A sheriff is not bound to hear evidence in an application made to him under sec. 42 where he is satisfied that under no circumstances whatsoever, whatever the evidence might be, could he hold the ground for the referral established. But there is a sharp distinction between cases of that type and the present case where the alleged incompetency arose because of a defect in the procedure which could be put right. The sheriff's criticism of the children's hearing on 5th March 1991 was that it never put itself in a position to be capable of directing an application to him because the children were not there. But there has been no suggestion by him or by anyone else in this case that the grounds for the referral themselves were incompetent, or that all proceedings in respect of them were necessarily at an end. The sheriff's comment at the end of his judgment about what the reporter should do next if he was still minded to take the matter further shows that he recognised that the cases were still before the children's hearing for consideration in terms of sec. 39 (3) and that further steps could be taken with a view to evidence being led. We agree with senior counsel for the first-named respondent that the problem which had been identified could have been dealt with by the reporter, if necessary, within a matter of days with the result that the applications could have been brought back before the sheriff within a very short time for him to hear evidence. For the reasons discussed by Lord Wheatley in H. and H. v. McGregor at pp. 100–101, it is contrary to the intention of the Act that proceedings before the sheriff under sec. 42 for a finding as to whether the grounds for referral are established should be delayed by preliminary objections of this kind. Much was made in the argument of the fact that the hearing of the evidence was likely to take a long time and that the sheriff was right to be concerned about the possibility that the whole proceedings might be rendered worthless by a challenge to their competency at the end of the day. But the rules of procedure which apply to these cases did not permit him to adopt this approach. No distinction can be drawn between one case and another simply on the ground of the time to be taken or the complexity of the evidence. So it was the sheriff's duty in this case to proceed to hear the evidence which was to be led by the reporter. Unless he was in a position to repel the plea there and then he should have reserved his decision on it until he had made a finding based on the evidence as to whether or not the grounds for the referral were established.

There is another objection to the sheriff's approach which we should mention at this stage. Counsel for the reporter sought to persuade him that what the hearing had done was to exercise their discretion in terms of sec. 42 (7) to decide that the children were not capable of understanding the explanation of the grounds for the referral. The sheriff's response to this was to select the case of the 15 year old boy, and to assert that it was quite clear that in his case the hearing never considered whether he was capable of understanding the explanation, let alone that he was not. But it was no part of the sheriff's function under sec. 42 to review the decisions taken by the children's hearing in the exercise of their statutory powers. His only function was to consider the grounds for the referral in the light of the evidence. It was not for him to say whether or not the children's hearing were or were not entitled to be satisfied on the matters set out in sec. 42 (7). That was a matter for them, and it was a decision which they were entitled to take on such information as they thought appropriate and, if they thought fit, in the absence of the child. Furthermore, judicial review is a procedure which is reserved to the Court of Session and it was not competent for the sheriff to undertake such a review himself. In any event he did not have the information which was needed to carry out this exercise. The reasons for the direction under sec. 42 (7) were not before him, so he had no material on which he could properly review this decision, even if it had been open to him to do so. And his selection of the example of the 15 year old boy was inappropriate to a case where all the other children involved were aged between eight and 13 years. The cases were all conjoined so they had to be decided together. If the sheriff was to embark on this exercise he should at least have examined the entire range of ages before concluding that the circumstances giving rise to a power in the hearing to direct an application in terms of sec. 42 (7) never arose. In fairness to the children's hearing therefore it must be said that the sheriff's criticisms of them in this passage were not justified.

For these reasons we shall answer question 11 in the negative. But the sheriff's decision that the applications were incompetent because the children were not present to receive the explanation required by sec. 42 (1) raises an issue of general importance, and it is right that we should now examine it on its merits as we are invited to do by question 13.

The sheriff held that the applications were incompetent because the children's hearing never put itself into a position where it was capable of directing the reporter to make application to the sheriff under sec. 42. He based this decision upon his analysis of various provisions in the Act and the rules about the attendance of the child at a hearing to which his case had been referred, and in particular upon the provisions of sec. 42 (1) which is in these terms: [their Lordships quoted the subsection as set out supra and continued thereafter].

He held that the child is obliged to be present, that at a point between the commencement of the hearing and the consideration of the case the chairman must explain to the child the grounds for referral of his case and that the child has a right to be there and to hear the explanation. He pointed out that since the children were not present on 5th March the chairman could not have given the explanation to which sec. 42 (1) refers. And he was critical of the applications which stated in terms that the children's hearing were satisfied that the children "did not understand the explanation of the grounds of referral given under sec. 42 (1) of the said statement of grounds of referral". Section 42 (7) provides that where a children's hearing are satisfied that the child for any reason is not capable of understanding the explanation or, in the course of or at the conclusion of that explanation, it appears not to be understood by the child, the hearing shall, unless they decide to discharge the referral, direct the reporter to make applications to the sheriff as to whether the grounds for the referral have been established. Taking the case of S. M. as an example, since he was a 15 year old boy and the failure seemed to him to be particularly difficult to understand in his case, he said that it was quite clear that the hearing never considered whether S.M. was capable of understanding the explanation, let alone satisfied themselves that he was not. The statement that he was given an explanation which was not understood was false because he was not there, and the provision for the making of a reference under sec. 42 (2) (c) did not come into effect because the word "thereafter" which introduces this subsection shows that the explanation required by sec. 42 (1) must be given first and that until it has been given, or sec. 42 (7) applies, the hearing is not entitled to make the direction.

There is no doubt that the paperwork in this case left a great deal to be desired. The decision of the children's hearing on 5th March 1991 was that the cases were to go "to proof", but no reasons are given to explain the basis upon which this decision was taken in the absence of the child. The applications which were then made to the sheriff under the Social Work (Sheriff Court Procedure Rules) 1971 were on printed forms in terms of form 1 in Sched. 1 to the Rules, which provides for various alternative bases upon which applications under sec. 42 may proceed and for deletions to be made as appropriate. The forms stated by means of the appropriate deletions and the insertion of appropriate names that the parents of the children did not accept the grounds of referral, which was both an accurate statement and a sufficient basis for an application to be made under sec. 42 (2) (c). But they also asserted, falsely as the sheriff was right to point out, that the children's hearing was satisfied that the children did not understand the explanation of the grounds of referral given under sec. 42 (1) and that the application was being made under sec. 42 (7). It is hard to see why the reporter thought it appropriate to complete the forms in this way. It would have been sufficient for him to confine himself to an application in terms of sec. 42 (2) (c). As the form itself points out the details for an application under sec. 42 (2) (c) and sec. 42 (7) are included in it as alternatives, and it is not necessary for them to be stated cumulatively. Furthermore, r. 4 (2) provides that an application shall be made in the form "as nearly as may be" of form 1, and it can be adapted to say, if this was indeed the case, that the children's hearing were satisfied that the child for any reason was not capable of understanding the explanation of the grounds, despite the fact that the child was absent from the hearing when the decision to that effect was made. As it is, while the applications appeared on the face of them to be in order and there was no reason to suspect that they were at variance with the facts, it was obvious in this case from other undisputed facts which were available to the sheriff—namely that none of the children were present at the hearing on 5th March 1991—that they contained a statement which could not be correct.

The question of competency must be decided however, as the sheriff appreciated, by reference to what was actually done by the children's hearing and not the way in which the application forms were completed by the reporter. The crucial question is whether it was necessary for the children to be present and for the grounds for referral to be explained to them before the children's hearing could direct the reporter to make an application to the sheriff in terms of sec. 42. In our opinion the sheriff reached the wrong conclusion on this point and for this reason also, as well as those given in answer to question 11, he ought not to have dismissed the applications as incompetent.

The starting point for an analysis of this matter is sec. 42 (1) which sets out the duty of the chairman to explain to the child and his parent the grounds stated by the reporter for the referral of the case. Much was made in the course of the argument before us of the purpose of this provision and of the rights of the child. It was suggested that the children were entitled to be present, to receive an explanation of what was going on and to participate even at this early stage in a discussion of their case. It was said that they had been grossly prejudiced by what had occurred, in particular because they had been deprived of the opportunity to influence the discussion and avoid having their cases being sent to the sheriff, which could have been achieved if the hearing had been persuaded to decide to discharge the referral there and then. But the only purpose of the explanation, in terms of sec. 42 (1), is to enable the children's hearing to ascertain whether the grounds are accepted in whole or in part by the child and his parent. The right which is in issue in this context is the right of the child and the parent to dispute the grounds: see sec. 35 (5) (b). If the grounds are accepted by them then the way is clear for the hearing to proceed to a consideration of the case in terms of sec. 42 (2) (a) or (b) as the case may be. This may lead to the taking of the various steps mentioned in sec. 43 and to the making of the supervision requirement in terms of sec. 44. The protection which exists, both for the child and the parent, lies in the right of the child and the parent to dispute the grounds, in which event the matter goes to the sheriff for a finding as to whether they have been established. It was this separation between the issues of adjudication of the allegations in the grounds for the referral and the consideration of the measures to be applied which lay at the heart of the recommendations of the Kilbrandon Report on Children and Young Persons, Scotland (Cmnd. 2306) of April 1964 which were in due course implemented by the Social Work (Scotland) Act 1968. The genius of this reform, which has earned it so much praise which the misfortunes of this case should not be allowed in any way to diminish, was that the responsibility for the consideration of the measures to be applied was to lie with what was essentially a lay body while disputed questions of fact as to the allegations made were to be resolved by the sheriff sitting in chambers as a court of law. The right to dispute the grounds for the referral is an essential part of the system, and it provides the protection which is needed to ensure that the children's hearing do not proceed to a consideration of the case with a view to the compulsory measures of care which may be required until any such dispute has been resolved. It is this right, and not some more general right to discuss or to be informed, which is the subject matter of sec. 42 (1).

But it is enough that either the parent or the child disputes the grounds for the referral for it to become necessary for the matter to go to the sheriff for the grounds to be established. This is because it is only if both of them accept the grounds—and they can only do this if an explanation is given of them by the chairman—that sec. 42 (2) (a) or (b)can apply. The question is therefore whether, in a case where the parent has received the explanation and has not accepted the grounds for the referral, it is necessary for the child also to attend and have the grounds explained so that he also may decide whether he accepts or does not accept them. It was argued that there could be only one answer to this question, because this was precisely what sec. 42 (1) requires. But this would seem to be a mere formality because, even if the child were to accept the grounds, this would not be sufficient to entitle the children's hearing to proceed under sec. 42 (2) (a) or (b), since the parent has disputed them. And if the child were to dispute them this could add nothing to what had occurred already to make it necessary for them to be a direction to the reporter to make an application under sec. 42 (2) (c). No doubt the children's hearing has a right nevertheless to decide to discharge the referral as they have power to do under sec. 42 (2) (c). But, as Lord Avonside pointed out in H. and H. v. McGregor at p. 102, such a decision is entirely in their discretion, and neither the child nor the parent is given the right to ask for this to be done.

Of course, since sec. 42 (1) requires the explanation to be given to both the child and the parent this is the duty which the chairman must perform in every case where both the child and the parent are present, subject only to what subsec. (7) of sec. 42 provides in those cases where the children's hearing are satisfied that the child is not capable of understanding the explanation or appears not to do so when it is given. But sec. 40 (2) provides that in certain cases the case, in whole or in part, may be considered in the child's absence. It is in these terms: [their Lordships quoted the subsection as set out supraand continued thereafter].

It will be recalled that the grounds for the referral in this case were all concerned with an offence mentioned in Sched. 1 to the 1975 Act, so it was open to the children's hearing to make a ruling under this subsection that the children should not attend. And, as has already been mentioned, they did indeed make a decision to this effect both at the preliminary meetings on 1st and 5th March and again at the hearing which was held on 5th March at which the parents were present and the decision was taken to send the matter to proof. The sheriff principal held, in the appeal which was taken under sec. 49 against the warrants issued by the children's hearing on that date under sec. 37 (4), that this was a proper exercise of their discretion which should not be disturbed. But the sheriff held on 4th April in his decision on competency that the hearing were precluded from proceeding to consider making a ruling under sec. 40 (2) because this provision only arose after the requirements of sec. 42 (1) had been satisfied. In his view the children's hearing had ignored the words "without prejudice to the provisions of section 42 (1)" by which sec. 40 (2) is introduced.

In our opinion this approach reads too much into the words "without prejudice", and it gives insufficient weight to the discretion which the children's hearing may exercise in the best interests of the child. The purpose of sec. 40 (2) is to enable the children's hearing to dispense with the children's attendance where they are satisfied in the cases defined by that subsection either that it is not necessary for a just hearing or their case or that it would be detrimental to the child's interest to be present. This is a provision which has obvious importance in those cases of child abuse where a child has been severely injured or is so disturbed or distressed by what has happened or may for any reason be exposed to risk or harm if his attendance were to be insisted upon. It would defeat its purpose if the children's hearing were to be disabled from making progress with the case because the attendance of the child was always necessary in order that an explanation be given to them under sec. 42 (1). It should be noted that the parent has a right to attend at all stages of a children's hearing who are considering the case of his child: sec. 41 (1). So, there is no way of avoiding contact between the parent and the child at the hearing except by the exercise of the discretion under sec. 40 (2). Of course, the children's hearing cannot proceed to the consideration of the case until the way has been cleared for it to do so either by an acceptance of the grounds for the referral both by the child and his parent or because the sheriff, following an application to him for a finding as to whether the grounds have been established, has remitted the case to the children's hearing for consideration in terms of sec. 42 (6). So it is necessary, if the protection is to apply, that the child attend the children's hearing and be given the opportunity to dispute the grounds in those cases where the parent has accepted them, unless the children's hearing is satisfied for any reason that the child is not capable of understanding the explanation and that a decision in terms of sec. 42 (7) is thus appropriate. If the child did not attend the hearing in these circumstances he clearly would be prejudiced, and since sec. 40 (2) is expressed to be without prejudice to sec. 42 (1) his attendance is required. On the other hand, since no prejudice could be suffered in cases where the parent has disputed the grounds for referral or where the children's hearing are satisfied for any reason on information placed before them in the child's absence that he could not understand the explanation, it is competent in those cases to which sec. 40 (2) applies for the children's hearing in their discretion to dispense with the attendance of the child. This was a decision which was open to the children's hearing to take in the present case. Moreover, as the sheriff recognised at the very outset of his judgment on the issue of competency, it is unlikely that matters would have taken a course any different from that which they did take even if the children had been present. The parents exercised their right to dispute the grounds of referral. It is inconceivable, in view of the allegations in the grounds for referral, that the children's hearing would have been persuaded to discharge the referrals and thus wash their hands of the matter by anything that the children might have had to say. An acceptance by the children of the grounds would simply have confirmed the necessity for the case to go to the sheriff in view of the parents' denial. A denial of the grounds would have had the same effect. Any attempt to explain them away would inevitably have led into disputed facts which an application to the sheriff could resolve. The essential flaw in the sheriff's reasoning therefore was to fail to appreciate that the presence of the children was, in this case, unnecessary for the protection which sec. 42 (1) was designed to give them to take effect.

We wish it to be understood, before we leave this topic, that what we have just said is not intended to minimise the rights of the children in any way. On the contrary, what we have been doing is to analyse where the balance lies between the two important provisions for their protection which Parliament has laid down in the Act. The protection against harm or distress, which is what sec. 40 (2) is all about, is as important as the protection against a determination of the case until the grounds for referral have been accepted or established, which is what sec. 42 (1) is designed to achieve. It is not appropriate, in a discussion of the effect of these provisions, to rely on broad generalisations about children's rights or rights to be present or to be heard. The detailed provisions of the Act require a more objective and precise approach in order to identify what these rights are at each stage in the case. The discretion which is given to the children's hearing in sec. 40 (2) may seem at first sight to involve a denial of rights to the children. But properly understood its true purpose is that of protection where the children's hearing are satisfied that this is required, and it is important that the opportunity to provide that protection where it is most needed should not be denied to them.

It is not necessary for us to deal in detail with the various arguments which were placed before us as to whether the provisions of sec. 42 (1) are mandatory or merely directory. We are in no doubt that they are mandatory in those cases to which they apply. We were referred to Coney v. Choyce [1975] 1 W.L.R. 422; Grunwick Processing Laboratories Ltd. v. Advisory Conciliation and Arbitration Service [1978] A.C. 655 and London and Clydeside Estates Ltd. v. Aberdeen District Council 1980 S.C. (H.L.) 1 as illustrations of the application of the relevant principles. We derive no assistance from the particular facts of those cases, since the issue is one of statutory construction and the provisions in question must be examined according to its own context and the object intended to be served by it, having regard to the scope and purpose of the enactment as a whole. But in the Grunwick case, where the requirement that ACAS were to ascertain the opinion of the workers to whom the issue of trade union recognition related was held to be mandatory, Lord Diplock said at p. 690E, of the requirement in sec. 14 (1) of the Employment Protection Act 1975 which was introduced by the word "shall":

"Prima facie this expression appearing in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it, or to do something like it instead. This is particularly so when, as in section 14 (1), the imposition of the duty on ACAS is followed by an express grant of a discretion which does not derogate from the duty itself but is limited to determining the means by which the duty is to be carried out."

There is, as senior counsel for the first-named respondent pointed out, a similarity between the point which was being made in that case and the provisions of sec. 42 (1), which are qualified by sec. 42 (7) which gives a discretion to the children's hearing as to what they may do if they are satisfied that the child is not capable of understanding the explanation or it appears not to be understood by the child. Taking the provision in its whole context, however, it is plainly of critical importance to the protection of the rights of the child that he should be given an opportunity to dispute the grounds for the referral before the children's hearing proceed to a consideration of the question whether he is in need of compulsory measures of care. This point can be most clearly seen when the ground for the referral is that the child has committed an offence. But sec. 42 (1) is of general application and in all cases where it applies the requirement is mandatory. For the reasons already given there may be cases where, in the proper exercise of its discretion, the children's hearing are satisfied that the child's attendance should be dispensed with in the circumstances referred to by sec. 40 (2), on the view that an explanation to him would be unnecessary for his protection because the ground for the referral is not accepted by his parent and there is no question of the referral being discharged. In such cases the duty does not apply and it does not require to be performed. The general rule however is that it is mandatory for the chairman to give the explanation before the children's hearing proceed to a consideration of the child's case so that he may have an opportunity to dispute the grounds and have them sent to the sheriff for a finding whether they are established. For the children's hearing to proceed without that duty having been fulfilled by the chairman would be a breach of sec. 42 (1) which would invalidate any decision taken under sec. 44.

We come back now to the issues of alleged misconduct of the proceedings raised by questions 10 and 14, the terms of which we quoted earlier in this opinion and need not repeat. The first point relates to the sheriff's decision to allow journalists into the hearing in the sheriff court. The second, which is best seen as a separate point although the context for it is set by the first, relates to what the sheriff said at the end of the judgment once he had completed his observations on competency.

There is no doubt that as a general rule the proceedings of a court are open to the public, and thus to public scrutiny, at all times. Exceptions have to be made in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done. But that is always the exception, and the general principle which applies equally in the sheriff court as it does in the Court of Session is that the court sits both for the hearing of cases and for the advising of them with open doors: Mackay's Practice of the Court of Session vol. i, p. 90. It is simply by an application of the same principle that it has long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting in the media. For an early example of the application of the rule to publication in the newspapers reference may be made to Richardson v. Wilson (1879) 7 R. 237, where Lord President Inglis said at p. 241:

"The publication by newspapers of what takes place in Court at the hearing of any cause is undoubtedly lawful; and if it be reported in a fair and faithful manner the publisher is not responsible though the report contain statements or details of evidence affecting the character of either of the parties or of other persons; and whatever takes place in open Court falls under the same rule, though it may be either before or after the proper hearing of the cause. The principle on which this rule is founded seems to be that, as Courts of Justice are open to the public, anything that takes place before a Judge or Judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished without inferring any responsibility."

The authorities were reviewed recently by Lord Clyde in Cunningham v. The Scotsman Publications Ltd. 1987 SC 107, which was a case about the qualified privilege which attaches to such reports.

The question which arises in this case about proceedings in chambers appears not to have been the subject of any previous decision. It is of course open to parliament to prescribe by enactment that judicial proceedings are to be conducted otherwise than in open court. Various examples were put before us, of which those of immediate relevance are the provisions in the Social Work (Scotland) Act 1968 itself. Section 42 (4) provides that an application under subsec. (2) shall be heard by the sheriff in chambers: see also sec. 49 (1) which applies to appeals. This is an expression which has been used from time to time in other enactments such as the Criminal Procedure (Scotland) Act 1975, sec. 20 (3C) of which provides that any proceedings under that section before the sheriff in examination or further examination on any charge shall be conducted in chambers and outwith the presence of any co-accused; see also sec. 31 (4) in regard to the disposal of bail appeals. Rule of Court 231 (e), which applies to cases which parties are agreed are to proceed by summary trial in the Court of Session, provides that the proof may be taken before the Lord Ordinary either in court or in chambers. On the other hand, with regard to the proceedings of children's hearings, sec. 35 (1) provides: [their Lordships quoted the subsection as set out supra and continued thereafter].

The chairman is required by subsec. (2) to take all reasonable steps to ensure that the number of persons present at a children's hearing at any one time is kept to a minimum. Subsection (3) provides that nothing in the preceding provisions of the section is to authorise the exclusion of bona fide representatives of a newspaper or news agency. This provision is in keeping with those of secs. 166 and 362 of the 1975 Act, which give power to the court under both solemn and summary procedure to clear the court while a child is giving evidence in certain cases during a criminal trial, but are subject to a proviso in the same terms. There are, of course, restrictions on the reports which may be published in any newspaper or by sound or television broadcasting of proceedings concerning persons under 16: 1975 Act, secs. 169 and 374. Similar restrictions are to be found in the 1968 Act: see sec. 58, which applies to proceedings in any children's hearings, before the sheriff or in any appeal to this court. Thus, even where members of the public are excluded, the press are entitled in these cases to remain and, subject to restrictions, to report what goes on. In other cases they have no such right. Section 57 of the Adoption (Scotland) Act 1978, for example, provides that all proceedings before the court with regard to adoption orders shall be heard and determined in private unless the court otherwise directs. There is no saving provision to enable the press as of right to attend. Section 21 (4) of the Mental Health (Scotland) Act 1984 provides that any proceedings under that section shall be conducted in private where the patient or applicant so desires or the sheriff thinks fit, and once again there is no saving provision for the press. The words "in camera" are also used to distinguish proceedings from those which are held in open court. The examples of the use of this phrase which we were given were taken mainly from enactments which do not extend to Scotland, but sec. 21 (4) of the now repealed Children Act 1975 used this expression in regard to proceedings taken in Scotland in applications relating to adoption.

It was submitted for the reporter that the words "in chambers" which appear in sec. 42 (4) of the 1968 Act mean that the proceedings before the sheriff were to be conducted in private, and that for this reason he had no power to allow the journalists to attend. This argument was presented as if it was inevitable, unless Parliament directs otherwise, that proceedings in private cannot ever be observed by the press—and we use the word press here as extending to all representatives of the media. "Private" means that all must be excluded except those who had a duty or a right to attend. The expression "in chambers" was just another way of saying the same thing. We prefer to approach the matter in this way. The general rule is that proceedings in court are in public with open doors. Proceedings in chambers are not in public, and the doors are closed. But it is in the discretion of the judge or sheriff to permit anybody including the press to attend the proceedings which are being conducted in his chambers. This is because there is no general rule which prevents this from being done. Whether it is appropriate that he should do so is another matter. It all depends upon the context and the purpose for which the proceedings are not to be conducted in open court. In some cases the proceedings are in chambers for reasons only of convenience, because they are being heard out of court hours or because informality is desired. In such cases there would seem to be no good reason why the press should not attend. In others, as under sec. 20 of the Criminal Procedure (Scotland) Act 1975, the guiding principle will be that of privacy, from which it follows that the press will be excluded unless Parliament has said otherwise. In the context of Pt. III of the Social Work (Scotland) Act 1968 informality and privacy both have a part to play, but sec. 35 (3) shows that the need for privacy is not so compelling that bona fide representatives of a newspaper or news agency cannot attend. It does not seem logical that they can attend the proceedings of a children's hearing, but must be excluded from the sheriff's chambers when he is dealing with the same matter under sec. 49 (1) on appeal. No doubt there will be cases, especially where the sheriff is hearing evidence under sec. 42 (4), where the press should not be allowed to attend at all. But by providing that the proceedings are to be in chambers, Parliament has done what was necessary to allow him to decide this matter as he thinks fit. It is a matter for his discretion and thus subject entirely to his control as to who, other than those who have a duty or right to be there, may attend, and for how long they may remain.

We have no criticism to make therefore of the sheriff's decision to allow the journalists to attend the proceedings on 3rd April and to return next day to listen to his judgment on the question of competency. The sheriff had to deal with the situation as he found it when he opened the proceedings for which he was responsible in the sheriff court. The press had been present at the proceedings before the children's hearing, and the case had already received a great deal of publicity which was likely to continue. It was suggested that he was wrong to allow the journalists to attend at their request, not on the motion of any party, and to do so when the debate on competency had reached such a stage that they could not get a balanced view of it. But these were matters for the sheriff, and for what it is worth we think that he was right to exercise his discretion as he did in the exceptional circumstances of this case by admitting the journalists to hear the rest of the debate and to listen to his judgment the next day. It was what he said at the end of it which exposes him to criticism, and our comments on that matter are best reserved to the next question, with which we now deal.

We have already described the circumstances in which the sheriff had access to the tapes and transcripts of the interviews which were delivered to his home address in Aberdeen. He understood that he had been invited to listen to the tapes and to read the transcripts in advance to assist the presentation of the case for the reporter. We accept what he says on this point, and if there was a misunderstanding as to what he was to do with them we need only say that we can see nothing wrong in his doing what he thought he had been invited to do, so long as he did not prejudge the evidence. Practice varies as to whether a judge will examine the productions in advance. But there are some cases, and this may well have been one of them, where it will be of assistance to the parties if he has familiarised himself with them beforehand so that time will be saved when they are referred to by the witnesses. Nevertheless the rule is that no production becomes evidence in the case until it has been agreed or has been spoken to by a witness in evidence. So a judge must guard against forming any views on the terms or content of the productions until that stage has been reached. Some productions may never become evidence at all, and they must therefore be left out of account. Others may take on a different aspect once spoken to by the witnesses than they may have when examined, unaided, by the judge. These are elementary propositions of which the sheriff was no doubt well aware. Unfortunately he said things at the end of his judgment which make it plain to us that he went far beyond the legitimate exercise of preparation. He allowed himself to form views about the content of the productions, and then to express these views publicly, which would have made it impossible for him to bring a fair and balanced judgment to the issues which were before him when evidence was being led.

We have not seen or listened to the productions. That is not our function, since we must deal with this case only on the facts which are before us in the stated case. It is partly for this reason that we have declined to answer the last two questions in the case which the sheriff has added in the mistaken view that it would be open to us to examine them for ourselves. For similar reasons we cannot accept the submissions which were urged upon us from either side in this case about the consequences of the sheriff's conduct by saying what he did. We cannot attribute any blame to him for any effect which there may have been on the evidence of witnesses or the various procedural difficulties which were mentioned by senior counsel for the reporter. Equally we cannot, as we were invited to do, excuse his conduct on the ground that the release of the children that same day showed that he was right. We do not have the facts before us which would be needed to form a judgment on these matters. We base our comments only on what we have before us, which are his own words and what he himself has told us about the context in which they were delivered.

We have to say that we find here a deliberate attempt by the sheriff to undermine the effects of the decision which he took only a few days earlier that the warrants should remain in force. That matter was over and done with as far as his judicial functions were concerned. The question would no doubt have arisen later if the warrants were to be renewed, but his sole function at this stage was to deal with the competency of the applications which had been made to him under sec. 42. The remarks at the end of his judgment were therefore irrelevant to the only issue which he had to decide, and they were made without warning or consultation with anybody and without giving an opportunity to the reporter to be heard. By passing judgment on the reporter's conduct without doing so and on those who conducted the enquiries before he had seen and heard the witnesses he was in clear breach of elementary rules of natural justice. It was said that he was acting according to his conscience, but we cannot accept this excuse. It was his duty to conduct the proceedings within the law. He owed that duty as much to the children and their parents as he did to the reporter. The children and the parents were entitled to findings which were based on a proper examination of the law and the evidence. Those with important responsibilities under the Social Work (Scotland) Act were entitled to be heard before their actions, perhaps in ignorance of the true facts, were condemned. Nothing which we have said is intended to cast doubt on the sincerity of his views, but that is not the point. If he had things to say to the reporter he should have addressed them to counsel in private, and not in the presence of the press. He should not have said them in the course of his judgment, because by doing so he gave all the authority to his views which went with the performance of his function on the bench. The effect of what he did was incalculable, and there is no doubt that he disqualified himself from taking any further part in the proceedings.

We answer the questions in the case as follows. We decline to answer questions 1 to 9 and questions 15 and 16 for the reason that they are not questions with which we can deal. Question 12 is superseded because it was not argued. We answer questions 11 and 13 in the negative, which means that the reporter succeeds in this appeal because in our opinion the sheriff was not entitled to dismiss the applications as incompetent. We answer question 10 (a) in the affirmative because the sheriff was entitled to allow the journalists into the hearing in chambers at their request. But we answer question 10 (b) and (c) and question 14 all in the negative because of the view which we take of the sheriff's conduct in saying what he did at the end of his judgment and doing so in the presence of the press. We shall recall the sheriff's interlocutor and remit the case to the sheriff for disposal, under direction that any further proceedings which may be necessary must be conducted before a different sheriff from that whose decision was under appeal.