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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Authority Reporter for Glasgow City Council v. J.L.N. [2003] ScotCS 281 (07 November 2003)
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Cite as: [2003] ScotCS 281
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Authority Reporter for Glasgow City Council v. J.L.N. [2003] ScotCS 281 (07 November 2003)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Osborne Lord Sutherland
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XA163/02 OPINION OF THE COURT delivered by THE LORD PRESIDENT in STATED CASE FOR THE OPINION OF THE COURT OF SESSION under Section 51(11) of the Children (Scotland) Act 1995 in the cause MARIAN MARTIN, Authority Reporter for Glasgow City Council Appellant; against J.L.N. Respondents; _______ |
Act: J.J. Mitchell, Q.C.; Biggart Baillie (Appellant)
Alt: Targowski, Q.C., M.M. Hughes; Brodies (Respondent)
7 November 2003
[1] This is an appeal against the decision of the sheriff at Glasgow in which he recalled a warrant granted by a children's hearing under section 66(1) and (6) of the Children (Scotland) Act 1995, to which we will refer as "the Act". As we will explain in the course of this opinion, there is no longer a live issue in regard to the warrant. However, his decision raises a matter of some general importance.[2] We begin with the history of this case, which illustrates the general point with which we are concerned. The respondent, who was born on 3 July 1987, was the subject of a supervision order under the children's hearings system for many years. The initial ground of referral indicated that she was in need of protection. Latterly there was concern as to her potential for offending and generally getting out of control. She was due to appear on 17 July 2002 at a review hearing, but failed to do so. The children's hearing was informed on that occasion that she had been missing for a week. In view of the concerns as to her safety and her failure to appear, the children's hearing issued a warrant under section 45(5) of the Act, to find the respondent, keep her in a place of safety and bring her before a children's hearing.
[3] On 19 July 2002, which was a Friday, the respondent was apprehended by police officers on the warrant. She was taken to a police office, where she was detained over the weekend. Arrangements were made for her to appear before a children's hearing on the earliest practicable date, which was the following Monday, 22 July 2002. On that date the respondent was visited by a solicitor. She had no papers relating to her appearance before a children's hearing. He had not previously been involved with her case or acted for her. He explained to her that he would be unable to represent her that day as he had other commitments.
[4] Later in the day the respondent appeared before the children's hearing. She was not legally represented, and neither of her parents were present. The children's hearing was unable to dispose of the case that day. They decided to dispense with the attendance of the respondent's mother, to appoint a legal representative and not a safeguarder for the respondent, and to issue a warrant under section 66(1) and (6) authorising her detention in secure accommodation for a period not exceeding 22 days and for her to be brought before a children's hearing. The decision of the children's hearing proceeded on the basis that they were satisfied that it was necessary to keep the respondent in a place of safety in order to promote her welfare, and that there was reason to believe that she might not attend at any hearing of her case; and that they were satisfied that she was likely to abscond unless kept in secure accommodation and, if she absconded, it was likely that her physical, mental or moral welfare would be at risk, and that she was likely to injure herself or some other person unless she was kept in such accommodation. The children's hearing did not specify any particular person as the legal representative of the respondent and did not specify the date on which the respondent was to appear.
[5] Following the granting of the warrant the respondent was detained at Kenmure St. Mary's. In view of the limited duration of the warrant, the reporter arranged for the next children's hearing to take place on 12 August 2002, when it would consider whether the warrant which had been granted on 22 July should be continued. A solicitor, who was not the solicitor who had visited the respondent on 22 July, was instructed to represent her at that hearing.
[6] In the meantime the respondent appealed to the sheriff under section 51 of the Act against the warrant that had been granted on 22 July. The grounds of appeal maintained that the granting of the warrant had been unnecessary and inappropriate.
[7] At the hearing before the sheriff on 31 July 2002 the respondent was legally represented by another solicitor. Having heard submissions from the parties the sheriff allowed the appeal and recalled the warrant. It appears that he took the view that the proceedings before the children's hearing on 22 July had involved a fundamental procedural irregularity in breach of the respondent's rights under Article 6 of the European Convention on Human Rights, in respect that she had not been legally represented. He also declined to hear evidence and submissions as to whether the warrant should be granted de novo, on the ground that the protection of the respondent by means of legal representation had been overridden.
[8] It may be noted that on the same day, some time after the sheriff's decision, the Head of Service, Children & Families/Criminal Justice in the social work services department of Glasgow City Council authorised the placing of the respondent in secure accommodation under Regulation 6 of the Secure Accommodation (Scotland) Regulations 1996. Thereafter the respondent's case was reviewed by a children's hearing in accordance with that Regulation. The respondent has remained throughout subject to a supervision requirement. Standing the decision of the sheriff to recall the warrant, the respondent was entitled to her liberty. The only means by which she could be detained immediately was by means of this being authorised under the Regulation. If this was done there ceased to be a live question in regard to the warrant which had been granted by the children's hearing.
[9] It is convenient to begin by considering the effect of Article 5 of the Convention. Article 5(1) states:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the competent legal authority ... ".
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
[12] Article 5(1) does not itself require that the detention should be ordered by a court or other judicial authority. As counsel for the appellant pointed out, the detention of a person by a police officer is an example of detention which is not so ordered. If a decision that a minor should be detained in accordance with Article 5(1)(d) is not made by a court or judicial authority, the minor has a right under Article 5(4) to have its lawfulness decided speedily by a competent legal authority (cf. A v. Scottish Ministers 2002 SC (PC) 63). Section 51 of the Act satisfies the requirements of Article 5(4). Under that section a minor such as the respondent can appeal to the sheriff within a period of three weeks of the decision of the children's hearing. The sheriff is empowered to hear evidence from or on behalf of the parties and call for any further report which he considers necessary, and decide whether the decision of the children's hearing should be confirmed, or that it was "not justified in all the circumstances of the case". The sheriff also has the power to remit the case to the children's hearing for their further consideration.
[13] Alternatively the lawfulness of the respondent's detention can be decided speedily by a subsequent children's hearing, provided that it offers the guarantees which are expected of a court or other judicial authority. As counsel for the appellant pointed out, it is undesirable that a child should have to rely on an appeal under section 51. He did not accept that the children's hearing had a duty to arrange for its decision to be reviewed speedily, but said that it was in accordance with good practice for it to do so. This had the advantage of keeping the matter within the Children's Hearing system. No fixed period had been laid down for this purpose in decisions of the European Court of Human Rights. The appropriate period in the individual case would depend on its facts and circumstances. It should be limited, he suggested, to a period of, say, seven days.
[14] As regards legal representation of the child, if it was not practicable for it to be provided for the child at the stage when warrant was granted, the children's hearing can include a condition that the early review of the warrant should take place when a legal representative for the child had been appointed and was in a position to represent the child before that hearing.
[15] As counsel pointed out, this was in accordance with paragraph 17 of the Advice to Panel Members in Annex A to the letter from the Scottish Executive to the Chairmen of Children's Panel Advisory Committees and others dated 10 January 2002 in connection with the Children's Hearings (Legal Representation)(Scotland) Rules 2001, which came into force on 23 February 2002. Having stated in paragraph 16 that wherever possible a hearing should adjourn or continue if there is a possibility that the services of a legal representative can be secured, paragraph 17 states:
"However, in some exceptional cases, the hearing may conclude that, notwithstanding the need to appoint a legal representative, the circumstances of the child are such that any delay in a decision would be detrimental to the child's interests. In the event of a legal representative being unavailable, the hearing should proceed immediately to act in the best interest of the child and to make such recommendation, as they consider appropriate. The hearing should record fully the reasons for so proceeding and arrange for an early review once a legal representative has been appointed, and notify the child of the right to appeal".
[17] It follows from what we have said that the detention of the respondent under the warrant which was granted by the children's hearing on 22 July was within the scope of Article 5(1)(d) of the Convention, and that this is unaffected by the fact that she was not legally represented before the children's hearing. The right of the respondent under Article 5(4) could then have been satisfied, as it was, by appealing to the sheriff. However, it could have been satisfied by the legal representation of the respondent at a speedy review of the warrant which had been granted. The children's hearing on 22 July plainly considered that the respondent should have legal representation at such a review. We can well appreciate that, having regard to the urgency of the matter, it was not practicable for such representation to be arranged in time to enable the respondent to be represented at the meeting on 22 July. In the present case, therefore, the children's hearing should have arranged for the review at which the respondent would be legally represented to take place at as early a date as was possible. In the event almost the whole of the period of 22 days elapsed before the date when the review was to take place. That was too long. It thus appears that the children's hearing did not follow the advice as to good practice which had been issued by the Scottish Executive.
[18] However, the decision of the children's hearing to grant the warrant was not vitiated by any procedural irregularity. Whether or not this was the case, the sheriff had the responsibility of determining whether the warrant was or was not "justified in all the circumstances". For this purpose, like the children's hearing, he required to consider whether the case satisfied the criteria in the relevant subsections of sections 66 and 70, and whether on the whole the detention of the respondent was in accordance with the principle set out in section 16(1). It was not open to him to take the view that, because he considered that the warrant was invalidated, he would not consider whether the warrant was justified. In the present case there was, of course, no question as to whether or not the case fell outside the jurisdiction of the children's hearings system. In the event the sheriff never reached a consideration of the merits of the matter.
[19] So far as Article 6 of the Convention is concerned, the respondent's rights under that Article were not infringed. Looking to the proceedings as a whole her complaint about lack of legal representation was unfounded (cf. Sutherland-Fisher v. Law Society of Scotland 2003 SCLR 568).
[20] In the course of his note the sheriff comments that any difficulty of arranging legal representation in advance of the hearing did not appear to him to be intrinsically insuperable. He observes that such representation was arranged each day in the Sheriff Court upon a shorter time period and for persons often much older than the respondent. We do not consider that these observations were realistic. As it was pointed out to us, only two or three cases come before a children's hearing within the sheriffdom each week. A children's hearing may require to be arranged, as was this one, at short notice. The solicitor would require to be identified, to obtain information from the child, give advice and take the child's instructions, assuming that the child is able to give them. Questions of confidentiality would prevent the reporter from divulging details of the case to the solicitor in advance of these steps being taken.
[21] In the circumstances we are satisfied that the sheriff reached the wrong conclusion, both as to the effect of what had happened before the children's hearing and in failing to address the justification for the warrant. The questions in the stated case will be answered as follows: Question 1 in the affirmative, Question 2 in the negative and Question 3 in the affirmative. Question 4 does not arise, and Question 5 is answered in the affirmative.