Scottish Court of Session Decisions

Shankley for Judicial Review [2002] ScotCS 107 (10th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MENZIES in the petition of MOIRA SHANKLEY Petitioner; for Judicial Review of the Decision of the Children's Hearing for Stirling Council dated 14 September 2002, refusing an application under Section 51(9) of the Children (Scotland) Act ________________

Petitioner: Dowdalls; Balfour & Manson

Respondents: J. J. Mitchell, Q.C.; Biggart Baillie

10 April 2002

1. The petitioner is the mother of a child Kevin Shankley in respect of whom a supervision requirement in terms of Section 70 of the Children (Scotland) Act 1995 was imposed by the Children's Hearing for Stirling Council on 13 August 2001. This required the child "to be under the supervision of the chief social work officer of Stirling Council and to comply with the conditions stated below". There were two conditions stated:

"1. For educational purposes, Kevin shall attend Ochil Tower School, 140 High Street, Auchterarder on a residential basis, Mondays to Thursdays.

2. At weekends and during holidays, Kevin shall reside at Rivendell Unit, Quarriers Village, Bridge of Weir or at Ochil Tower School when facilities at the school are available."

2. On 31 August 2002 the petitioner lodged an appeal under Section 51(1) of the Children (Scotland) Act 1995 with the Sheriff Clerk at Stirling Sheriff Court in respect of said supervision requirement. The only aspect of the supervision requirement with which the petitioner took issue in this appeal was the second condition, relating to residence at weekends and during holidays. The petitioner maintained in the appeal that the child should reside with her at weekends and during holidays. The petitioner also made an application to the Children's Hearing for Stirling Council in terms of Section 51(9) of the Children (Scotland) Act 1995 for the second condition of the supervision requirement to be suspended pending determination of the appeal by the Sheriff.
3. On 14 September 2001 the Children's Hearing refused this application. No. 7/1 of process is the report of the proceedings of the Children's Hearing on 14 September 2001, which gives the Hearing's reasons for its decision. Attached to these reasons is a note in the following terms:

"Prior to a full discussion, the Hearing raised the question of what their powers were in relation to this application. Mr Crawford"(who was the Solicitor acting for the petitioner) "submitted that the Hearing could suspend a condition of the supervision requirement and leave the requirement and any other conditions in place. The reporter disagreed and the Hearing proceeded on the reporter's advice, namely that the Hearing could only suspend the whole supervision requirement or not. They do not have the power to only suspend a condition. Mr Crawford's application had indicated that he was not seeking suspension of the whole supervision requirement, but the Hearing allowed the matter to proceed upon an indication from Mr Crawford that he wished to have the application fully considered, and that it was in the interests of the child for this to be done."

The petitioner in these Judicial Review proceedings seeks declarator that the Children's Hearing erred in refusing to suspend the requirement in so far as it contained the second condition.

4. For the petitioner, Miss Dowdalls submitted that the Children's Hearing had misdirected itself in law in interpreting Section 51(9) of the 1995 Act as preventing it from suspending a part of the requirement such as the second condition. She referred me to Section 16(1) of the 1995 Act, which provides as follows:

"Where under or by virtue of this Part of this Act, a Children's Hearing decide, or a Court determines, any matter with respect to a child, the welfare of that child throughout his childhood shall be their or its paramount consideration."

She submitted that this required the Children's Hearing to construe Section 51(9) broadly, and consistently with Section 16(1). She pointed out that the Sheriff on an appeal to him in terms of Section 51(5) has a wide range of options open to him in disposing of the appeal, including (by virtue of Section 51(5)(c)(iii)) substituting for the disposal by the Children's Hearing, any requirement which could be imposed by them under Section 70 of the Act. She said that there was no explanation for the difference between the Sheriff's powers on appeal and the powers of the Children's Hearing ad interim, that it was not logical that there should be any difference, and that this was not consistent with the requirement of Section 16(1). She drew an analogy with the case of Ali v Ali 1999 SLT 943, in which an Extra Division held that where a decree is the object of suspension, it is for that purpose severable into constituent parts, so that, although it is incompetent to suspend a decree of divorce, a decree of for both divorce and payment of a capital sum may be suspended in so far as it ordains payment. She submitted that on a proper interpretation of Section 51(9) of the 1995 Act (which interpretation must take account of the paramount consideration referred to in Section 16(1)) the second condition attached to this supervision requirement was severable from the rest of the requirement, and was capable of being suspended on its own without resulting in the suspension of the whole requirement.

5. For the respondent, Mr Mitchell accepted that the conditions do form part of the requirement. However, he submitted that in a supervision requirement with no conditions attached, it is for the chief social work officer to determine where the child would stay and what contact there might be. It did not follow, he submitted, that if the second condition were to be suspended, the child would return at weekends and at holidays to stay with his parents - this would then be a matter for the discretion of the chief social work officer. He also observed that a decision of the Children's Hearing under Section 51(9) is appealable to the Sheriff, under reference to Kearney's Children's Hearings in the Sheriff Court (Section Edition) paragraph 53.15, but, he indicated that he did not wish to take this point as a matter of competency of the present proceedings.
6. However, he did take the point that the petitioner had failed to exhaust her statutory remedies, under reference to Section 73 of the Act. Section 73(6) provides inter alia that:

"... a child or any relevant person may require a review of a supervision requirement in respect of the child at any time at least three months after (a) the date on which the requirement is made ...".

In this case the supervision requirement containing the contentious condition was made on 13 August 2001, and so the petitioner had a right to require a review of it at any time after 13 November 2001. The petitioner has not chosen to exhaust this remedy. Had she done so, it would have been the duty of the principal reporter in terms of Section 73(8) to arrange for a Children's Hearing to review the supervision requirement, and this would have been done in very early course. If the Children's Hearing in reviewing the supervision requirement were satisfied that the second condition was unnecessary or inappropriate, they had the power to vary the requirement by deleting the condition and by requiring the child to stay with his parents at weekends and during school holidays, if they considered this appropriate. This remedy has been available to the petitioner since 13 November 2001, but she has never availed herself of it. The present petition was not lodged in Court until 7 February 2002.

7. Turning to the substance of the argument against him, Mr Mitchell submitted that on a proper construction of Section 51(9) of the 1995 Act, the Children's Hearing had power only to suspend the whole of the supervision requirement, and had no power to suspend parts of it and therefore effectively to vary it or substitute parts of it. He contrasted the provisions of Section 51(9) with the powers available to the Court on appeal at Section 51(5), and also with the powers of the Children's Hearing on review under Section 73(9). In these Sections, Parliament had expressly provided for a power of variation or substitution. He submitted that Section 16 has nothing to do with this issue. He accepted that where the Children's Hearing has a jurisdiction, it must exercise that jurisdiction in accordance with the principle set out in Section 16(1), but it does not follow that in answering the question, what is the jurisdiction of the Children's Hearing (or indeed of the Sheriff), it is necessary to ask what is in the best interests of the child. It is not for the Children's Hearing to decide the meaning of Section 51(9) - that it a matter for the law. He referred me to Kearney (supra) at paragraph 25.09, and submitted that there were limits to the paramount principle; not every decision is subject to Section 16. The question here is whether the Children's Hearing has any power to suspend only part of a supervision requirement, and Section 16(1) has no application to that question.
8. In reply, Miss Dowdalls submitted that Section 73(6) of the Act did not provide a remedy for the petitioner, because there had been no material change of circumstances, so the Children's Hearing on review would be likely to reach the same conclusion as it had reached in August 2001. Quoad ultra she maintained her earlier submissions.
9. I accept the preliminary submission on behalf of the respondents to the effect that by the time this petition was raised, the petitioner had an alternative statutory remedy available to her. In these circumstances there is no supervisory jurisdiction vested in the Court, and the petition is incompetent. (See generally Clyde and Edwards on Judicial Review, Chapter 12; Rule of Court 58.3(2)). What the petitioner is complaining of in this case is that the Children's Hearing incorrectly fettered their discretion on 14 September 2001 by not focusing their attention solely on the appropriateness of condition 2 attached to the supervision requirement. The petitioner wanted them to review only that condition, and to suspend it ad interim - effectively, to vary the supervision requirement to enable to child to stay with the petitioner at weekends and over the school holidays. The Children's Hearing declined to look at this condition in isolation, because they did not consider that they had power to do so. However, from 13 November 2001 the petitioner could have availed herself of her right to require a review of the supervision requirement, and if she had done so, it would clearly have been open to the Children's Hearing on review to vary the requirement by deleting condition 2 and, if so advised, insert a requirement that the child should live with his parents at weekends and during school holidays. Accordingly, as at the date of raising this petition in February 2002, the petitioner had a statutory remedy which remained open to her. I do not accept that she would require to show material change of circumstances at a review Hearing arranged in terms of Section 73(8) of the Act - at that Hearing I consider that she would be able to argue that condition 2 was not in the best interests of the child. In these circumstances, the present petition is incompetent.
10. In any event, if I am wrong in my views as to the competency of the petition, I agree with the two substantive submissions for the respondents (although I express no view on his remarks about the effect of a supervision requirement with no conditions attached, and the discretion of the chief social worker officer in that situation). First, I agree that the principle enunciated in Section 16(1) of the 1995 Act applies to any decision which properly falls within the discretion of the Children's Hearing, but it does not apply to the consideration of the question of the extent of the jurisdiction of the Hearing. Whether it is competent for a Children's Hearing to do something is a question of law, and Section 16 is not relevant to the answering of that question. It is only once the Children's Hearing is acting within its powers and competence that the principle contained in Section 16(1) applies. Second, having regard to the contrast between the powers which Parliament has conferred on a Children's Hearing in terms of Section 51(9) with the powers conferred on a Sheriff in Section 51(5), and on a Children's Hearing in Section 73(9), I am satisfied that the Children's Hearing in this case correctly determined that they had no power to suspend only one condition, without suspending the whole supervision requirement. To do so would result in a variation or substitution, which they were not entitled to make.
11. For these reasons I refuse the petition.