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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Philip
Lady Cosgrove
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[2007] CSIH 88
XA191/06, XA192/06 and XA193/06
OPINION OF THE COURT
delivered by Lord Nimmo
Smith
in
STATED CASE
From the Sheriffdom of
Glasgow and Strathkelvin at Glasgow
In the cause
MM
Appellant:
against
J McCLAFFERTY,
Authority Reporter,
Glasgow
Respondent:
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Act: Maria Clarke; Drummond
Miller LLP (Appellant)
Alt: Di Rollo, Q.C.; Biggart
Baillie (Respondent)
20 November 2007
[1] We have
before us three Stated Cases brought by MM against the authority reporter for Glasgow.
The appellant is the mother of the three children, who are identified by
initials in the Stated Cases. All three
are female. The eldest of them, KM, was
born on 10 February 1991, the second, LM, was born on 6 January
1995 and the
youngest, CM, was born on 10 June 2001.
The respondent referred the cases of these three children to a
Children's Hearing on the grounds specified in section 52(2)(c) and (d) of the
Children (Scotland) Act 1995 ("the 1995 Act"). The referral in respect of the children KM
and LM was also on the ground specified in section 52(2)(e) of the 1995 Act. The appellant did not accept the grounds of
referral and the case was therefore sent to the sheriff at Glasgow for proof. In due course the sheriff heard proof and in
conclusion, having set out various facts which she found admitted or proved,
she decided that the grounds of referral in respect of each of the three
children were established.
[2] The appellant
has now appealed to this Court under section 51(11) of the 1995 Act, which
provides that an appeal shall lie by way of stated case either on a point of
law or in respect of any irregularity in the conduct of the case. It should be noted in passing that a question
was canvassed briefly before us today as to the scope that there might be for
an examination of a transcript of the evidence led before the sheriff, given
the limited statutory scope of such an appeal. In the event no reference was made
to the notes of evidence, and we therefore reserve our opinion on that
matter.
[3] Two other
points also need to be made at the outset.
In the first place, we were told that there has been a development in
the situation which might put in question whether the appeal against the sheriff's
decision raises any more a live issue.
That is that there has been a recent further hearing before the Children's
Panel at which the local authority have recommended that the supervision
requirement which is the subject of this appeal should no longer remain in
force. The Children's Panel have not yet
reached a decision about that matter and the hearing has been continued until
January 2008. It may well be, in light
of what we have been told, that the recommendation will be accepted, but it
would be premature to make any assumption about that. In any event, as her counsel submitted, the
findings that were made which were adverse to the appellant would still in
effect form part of her record unless we were to decide that the sheriff was
wrong to have made them. So we are
satisfied that there is a live issue for our decision.
[4] The second point
that requires to be made is that in each of the three Stated Cases there are
four questions, which (although the referral in respect of the child CM was not
on the ground specified in section 52(2)(e) of the 1995 Act) are in identical
terms, as follows:
"(1) Was I entitled to make Finding in Fact number
22?
(2)
Upon
the evidence was I entitled to find that the ground for referral under section
52(2)(c) of the Children (Scotland) Act 1995 was established?
(3)
Upon
the evidence was I entitled to find that the ground for referral under section
52(2)(d) of the Children (Scotland) Act 1995 was established?
(4)
Upon
the evidence was I entitled to find that the ground for referral under section
52(2)(e) of the Children (Scotland) Act 1995 was established?"
Before us today counsel for the respondent accepted that we
should answer questions 3 and 4 in the negative and it was not therefore
necessary for us to hear further argument about them. We then proceeded to hear argument about
questions 1 and 2.
[5] So far as the
factual background is concerned, what weighed in particular with the sheriff
was the fact that a man ("the man") had come to live with the appellant, who
was not the father of the three children in question, and by whom, by the time
of the proof, she was expecting a child.
At pages 13-14 of each of the Stated Cases the sheriff makes clear that
what weighs with her is what she has held proved about sexual misconduct by the
man with two 13-year-old children, one male and one female, who are not related
to the appellant and her children and who are the subject of Findings in
Fact 4-9 in each of the Stated Cases.
The matter is brought to a point in Finding in Fact 9 which is that
on 28 April 2005 within a flat in Glasgow, the man committed lewd, indecent
and libidinous practices towards these two children, an offence under
Schedule 1 of the Criminal Procedure (Scotland) Act 1995. It is because of that that the sheriff
decided that compulsory measures of supervision were required, even although
nothing was to be done to prevent the three children who are the subject of
this appeal from continuing to live in household with the appellant and the
man.
[6] The first
question in each of the Stated Cases was whether the sheriff was entitled to
make Finding in Fact 22. This finding
in fact was that contact (between the man and the appellant's three children)
between 25 May 2005 and 9 August
2005 (a
period during which the man was living in household with the appellant and her
children) was not supervised. The
question immediately arises as to what is meant by supervision in the context
of this finding in fact. What is found
by the sheriff in Finding in Fact 14, is that on 25 May 2005 two duty
social workers went to the appellant's home regarding allegations which had
been made by the two 13-year-old children about the man, to voice their concerns
about this man being left alone with the three children. The social workers recommended that all
contact should be supervised by the Social Work Department. In Finding 15, the sheriff found that
the appellant shouted and swore at the two social workers and would not accept
their advice about contact. She told
them that she did not accept the allegations, that she would not restrict
contact in any way and she made threatening remarks about the two
complainers. In Finding in Fact 21, it
is found that on 9 August 2005 the appellant met with a care worker from
the Social Work Department and agreed that all contact between her children and
the man should be supervised.
[7] It appears to
us to be reasonably clear that what is meant by "supervision", at least in
Finding in Fact 21, is supervision by the Social Work Department, which is what
was recommended on 25 May 2005. If
that is right then the same meaning should be attached to the word "supervised"
in Finding in Fact 22. But in any event,
and even if the word is ambiguous and is capable of meaning supervision by a
responsible adult, as was contended by senior counsel for the respondent, this
is an ambiguity which in our view should be resolved in favour of the
appellant. So we are left with the view
that on a proper construction this means supervision by the Social Work Department;
and there is no disputing that there was no supervision by the Social Work
Department between the two dates in question.
If the other interpretation were to be preferred, there would then
require to be further findings in fact from which an inference could be drawn
that there was no supervision by a responsible adult between the two dates in question;
and there are no findings which would support such an inference. But, proceeding on the basis of the
interpretation that we prefer, that what is meant by "supervision" is
supervision by the Social Work Department, we take the view that the sheriff
was entitled to make Finding in Fact 22 and we answer question 1 in each of the
Stated Cases in the affirmative. As will
be seen however, to do so is not of any great consequence for our disposal of
question 2 in each of the Stated Cases, to the consideration of which we now
turn.
[8] Section 52(1)
of the 1995 Act provides that the question of whether compulsory measures of
supervision are necessary in respect of a child arises if at least one of the
conditions mentioned in subsection (2) is satisfied with respect to him (or
her). In subsection (2) the relevant
condition is (c) and that is that the child is likely (i) to suffer
unnecessarily or (ii) be impaired seriously in his (or her) health or
development due to a lack of parental care.
We were referred to various authorities about the proper approach to
this provision and its statutory predecessor.
The leading authority to which we were referred was H. v Harkness 1998 SC 297,
in which emphasis was laid on the need for the sheriff to apply the wording of
the statute and to ask himself or herself therefore the question whether in
terms of the statute it has been demonstrated that the child is likely to
suffer unnecessarily or be impaired seriously in his health or development due
to a lack of parental care. We were referred
to other authorities, in particular H.
v Lees 1993 JC 238 and M. v Constanda
1999 SC 348, which emphasise the need for any decision as to whether or not
the statutory test has been met to be based on evidence.
[9] Obviously
what the statute is looking to is the likelihood of something happening in the
future. We are prepared to accept that
what is meant by the word "likely" in paragraph (c) is not "probably" or "more likely than not",
but nevertheless that there is a significant or substantial risk of the events
set out in that paragraph occurring in the future. In order to decide whether there is such a
likelihood, it is necessary to consider in the first place events in the past
and then to draw inferences by a process of inductive reasoning from those
events and what else is known about the character of the person or persons
involved in them, so that conclusions can if possible be drawn about what is likely
to happen in the future. In short, it
takes the form of a risk assessment, which must be based on evidence.
[10] As has been
seen, the sheriff has held that the man was engaged in committing sexual
offences against two unrelated children; but she has made no finding that there
was any improper conduct at any time between him and any of the appellant's
three children. Nor was there any
finding as to a risk assessment having been carried out that suggested that
there was a risk of his behaving improperly, nor any other finding from which
an inference to that effect could be drawn.
The absence of such findings in fact, or, for that matter of any
evidence from which such findings in fact could be derived is, in our opinion,
vital to the question whether the statutory test has been fulfilled. There is no finding about the character of
the man or of his past behaviour from which the sheriff could infer that there
was a likelihood, in the sense in which we have interpreted that word, of any
harm to the three children with whom he was living in family. It follows therefore that the statutory test
which the sheriff was bound to apply cannot be said to have been met by her own
findings.
[11] That is
sufficient for disposal of this matter and we shall therefore answer, as we
have indicated, in each of the Stated Cases, question 1 in the affirmative,
question 2 in the negative and of consent, questions 3 and 4 also in the
negative.
