EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord McEwan	[2010] CSIH 85 XA156/09 OPINION OF LADY PATON in the cause BJ Appellant; against PAULINE PROUDFOOT, Children's Reporter for Stirling Respondent: and THE LORD ADVOCATE Sisted Party _______

Appellant: O'Brien QC, Halley; Drummond Miller LLP (For Jardine Donaldson)

Respondent (the Reporter): Moynihan QC; Brodies LLP (For McSparran McCormick)

The Lord Advocate: Mure QC, McBrearty; Scottish Government Legal Directorate

26 October 2010

Child in secure accommodation: whether human rights breached

[1] On 16 February 2009, a children's hearing in Stirling varied a supervision requirement in respect of a child BJ born on 7 December 1993 ("the appellant"), and decided that she was liable to be placed in secure accommodation in terms of section 70 of the Children (Scotland) Act 1995 as amended by section 135 of the Antisocial Behaviour etc (Scotland) Act 2004. The actual placement of the child was effected by two officials, namely the chief of social work for the area, and the head of the secure accommodation. As the placing and keeping of the child in secure accommodation constituted a deprivation of liberty, articles 5 and 6 of the European Convention on Human Rights (ECHR) were engaged. The appellant contends that section 70 as amended does not comply with articles 5(4) and 6(1), in respect that the deprivation of liberty was left in the hands of two officials who had the power to subvert the hearing's decision. Thus the appellant's human rights were breached.

Articles 5 and 6 of the European Convention on Human Rights

[2] Article 5 of the ECHR provides:

"1. 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; ...

4. 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."

[3] Article 6 provides:

"1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

The domestic legislation

[4] Section 70 of the Children (Scotland) Act 1995 ("the Act"), as amended by section 135 of the Antisocial Behaviour etc (Scotland) Act 2004 ("the 2004 Act"), provides:

"(1) Where the children's hearing to whom a child's case has been referred under section 65(1) of this Act are satisfied that compulsory measures of supervision are necessary in respect of the child they may make a requirement under this section (to be known as a "supervision requirement") ...

(3) A supervision requirement may require the child -

(a) to reside at any place or places specified in the requirement; and

(b) to comply with any condition contained in the requirement...

(7) A children's hearing who make a supervision requirement may determine that the requirement shall be reviewed at such time during the duration of the requirement as they determine ...

(9) A children's hearing may exercise a power mentioned in subsection (9A) below in relation to a child if they are satisfied -

(a) that one of the conditions mentioned in subsection (10) below is met; and

(b) that it is necessary to exercise the power concerned.

(9A) The powers are -

(a) that the children's hearing may specify in the supervision requirement that the child shall be liable to be placed and kept in secure accommodation in a residential establishment specified, under subsection (3)(a) above, in the requirement, during such period as the person in charge of that establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary; and

(b) that the children's hearing may impose, under subsection (3)(b) above, a movement restriction condition.

(10) The conditions are -

(a) that the child, having previously absconded, is likely to abscond and, if he absconds, it is likely that his physical, mental or moral welfare will be at risk; and

(b) that the child is likely to injure himself or some other person ..."

[5] Subordinate legislation, namely The Secure Accommodation (Scotland) Regulations 1996 (SI 1996/3255) ("the Regulations") further provides:

"Welfare of children in secure accommodation

4. - (1) Subject to paragraph (2), the managers in consultation with the person in charge shall ensure that the welfare of a child placed and kept in [secure] accommodation is safeguarded and promoted and that the child receives such provision for his education, development and control as is conducive to his best interests ...

Maximum period in secure accommodation under the Act without authority

5. - Subject to the provisions of regulation 8 the maximum period during which a child may be kept under the Act or the 1995 Act [the Criminal Procedure (Scotland) Act 1995] in secure accommodation without the authority of a children's hearing, or, as the case may be, of the sheriff, is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days.

Children subject to certain supervision requirements - interim placement

6. - [Sub-sections (1) and (2) provide for the placement in secure accommodation of a child who is subject to a supervision requirement but not subject to a condition that he be liable to be placed and kept in secure accommodation, provided that the chief social work officer of the local authority (who gives effect to the supervision requirement) and the person in charge of the secure accommodation are satisfied that the criteria specified in paragraph (a) or (b) of section 70(10) are met, which placement must be accompanied by an immediate written report to the Principal Reporter] ...

(3) On receipt by the Principal Reporter of the referral and information under paragraph 2(b), he shall arrange for a review of the child's case by a children's hearing ...

(4) The review of the child's case referred to in paragraph (3) shall take place no later than 72 hours from the time of the placement of the child in secure accommodation.

Information provided to a children's hearing by a local authority in relation to the use of secure accommodation

10. - A local authority may submit a report in writing to the children's hearing recommending that a child be placed in a named residential establishment providing secure accommodation subject to a condition or order that he is liable to be kept in secure accommodation only if they are satisfied that the matters referred to in regulation 6(1)(a) and (b) are met.

Review of supervision requirement

11. - Where a children's hearing imposes or continues a condition under section 70(9) of the Act, either on the making of a supervision requirement under section 70(1) of the Act or the continuation of a supervision requirement under section 73(9)(e) of that Act, the Principal Reporter shall arrange a review of the supervision requirement under section 73(8) within 3 months of the condition under section 70(9) being made or continued ...

12. - (1) A child subject to a supervision requirement with a condition imposed under section 70(9) of the Act or any relevant person may, in writing, require the Principal Reporter to make arrangements under section 73 of the Act to have the supervision requirement reviewed by a children's hearing if in the preceding 6 weeks the child has not been placed in secure accommodation by virtue of that condition.

(2) Where a notice is given to the Principal Reporter by a child or any relevant person under paragraph (1), the Principal Reporter shall arrange a children's hearing within 21 days of the receipt by him of the notice."

The appellant's history

[6] The appellant was born on 7 December 1993. Her early childhood was troubled, contributing factors being the separation of her parents; suspected sexual abuse by a local man; and her mother's failure properly to care for her. From March 2003 until April 2007, the appellant lived with foster parents. She was then placed in a residential school. That placement broke down, and on 9 May 2007 she was accommodated in a residential care unit at Bannockburn. On 3 September 2008 the children's hearing continued a supervision requirement in terms of section 73(9)(e) of the Act. On 24 October 2008 there was an emergency transfer of the appellant to The Elms Secure Unit, Dundee. On 24 October and 11 November 2008, two secure warrants were issued in terms of section 66 of the Act. On 2 December 2008 a Place of Safety Warrant resulted in a termination of the secure accommodation, with the appellant being placed at the residential care unit in Bannockburn, the Brucefield Unit. On 16 December 2008 a secure warrant was issued, and the appellant was again placed in secure accommodation in The Elms. On 5 January 2009 the children's hearing applied to the sheriff to find established certain grounds of referral not accepted by the appellant and her mother. The hearing issued a warrant in terms of section 66, ordering the appellant to be placed in secure accommodation. On 30 January 2009, amended grounds of referral were accepted by the appellant and her mother. As a result, the sheriff dispensed with the hearing of evidence, found the grounds established, and remitted the matter to the children's hearing for disposal. On 3 February 2009, the appellant was charged with wilful fire-raising and resisting arrest, arising from an incident which occurred while the appellant was resident at The Elms Secure Unit. The appellant denied any involvement. On 16 February 2009, her case came before the children's hearing.

The children's hearing on 16 February 2009

[7] At the hearing on 16 February 2009, the appellant was present throughout, and was represented by her solicitor Mr Kee. There had been three separate grounds of referral, dated 21 March 2003, 11 September 2007 and 30 January 2009. There were four reports from The Elms Unit, the latest being 11 February 2009; four social work reports, the latest being 10 February 2009; and two reports from the unit in Bannockburn, the latest being 16 December 2008. There were ten recordings of the appellant's views, the latest being 12 February 2009. In addition, the hearing considered the emergency transfer report dated 23 October 2008, and the safeguarder's report of 9 July 2007.

[8] The reports included the following information:

Report from the Brucefield unit, Bannockburn, dated 23 October 2008

" ... [BJ]'s behaviour continues to deteriorate. Within the community we believe [BJ] is again placing herself in vulnerable situations with older males....Due to our concerns the police were contacted and asked to investigate, however due to [BJ]'s refusal to make a complaint there has been no further action to date. She has also been involved in acts of vandalism - such as, breaking windows, graffitiing [sic] and latterly and more worryingly, setting fires within the building and disabling the fire system by continually breaking the glass fire points, which exposes the building to the risk of fire. Other unacceptable behaviours include being verbally abusive and threatening to staff."

Report from the social worker dated 11 December 2008

" ... following BJ's return to the Brucefield Unit in Bannockburn on 2 December 2008 there were three reports of her absconding to different places, once to Glasgow and twice to Dundee and had been later found in the company of other young persons whom she knew after reporting herself to the police."

Update report from the Brucefield unit dated 16 December 2008

" ... On Monday 15 December [2008] [BJ] got out of bed and immediately began to confront members of the Care Team. Her behaviour escalated and she made threats to trash the cars parked outside the unit. In addition to this she began to 'trash' the fabric and furnishings in the building. Once again [BJ] found her way into the attic space and began to throw stored items around the unit. [BJ] also made threats to harm members of the care team. Police were again contacted in an attempt to de-escalate the situation, as [BJ] was not prepared to accept advice, guidance or support from anyone in Brucefield. Such was the seriousness of the situation that another resident had to be removed in order to keep her safe. [BJ] was taken to Randolphfield [Central Scotland Police Headquarters] where she received charges of vandalism and breach of the peace. Following on from this, [BJ] returned to Brucefield and again immediately disrupted the unit. [BJ] barricaded herself in the lounge area and police had to intervene once again."

[9] The hearing considered all the papers and reports. They heard from the Reporter and the appellant's solicitor. They heard the appellant's views, as she spoke for herself at the hearing. They had a full discussion about the appellant's circumstances. The hearing then issued the following decision:

"A children's hearing for Stirling ... being satisfied (firstly) that the child is in need of compulsory measures of supervision, and (secondly) that she has previously absconded and is likely to abscond unless she is kept in secure accommodation, and, that if she absconds, it is likely that her physical, mental or moral welfare will be at risk, that she is likely to injure herself or some other person unless she is kept in secure accommodation, grant continuation of the supervision requirement dated 3 September 2008 ... subject to the insertion of a requirement on her to be under the supervision of the chief social work officer for Stirling Council and to reside in Good Shepherd Secure/Close Support Unit ... subject to the conditions noted below and any other insertions in or variation of the supervision requirement noted below.

CONDITIONS, VARIATIONS AND INSERTIONS REFERRED TO IN THE SUPERVISION REQUIREMENT

1.     The child is liable to be placed and kept in secure accommodation in Good Shepherd Secure/Close Support Unit ... at such times as the person in charge of the residential establishment, with the agreement of the chief social work officer of Stirling Council, considers necessary ...

Note: If the residential establishment providing secure accommodation does not have an open residential facility there will also need to be a reference to some such place ...

Decision(s) of children's hearing

1.     Not to appoint a safeguarder, s.41

2.     To vary the supervision requirement, s.73(9) as following:

(1)  The condition that [BJ] shall reside at the Brucefield Unit ... is varied to [BJ] shall reside at the Good Shepherd Secure/Close Support Unit ...

(2)  Insert the condition authorising placement in secure accommodation.

Reasons for decision(s).

This was a difficult hearing. [BJ] meets the criteria for secure accommodation for the following reasons, she has a history of absconding if not in a secure place; in addition, she puts herself at serious risk and those with whom she may come into contact.

[BJ] made a strong point that she did not want to go into a secure unit. [BJ] is of the view that nobody is listening to her and to get attention she needs to behave badly. [BJ]'s solution is to be moved to a close support unit as this would give her a chance to prove that she can control her actions.

Much of the discussion was about whether [BJ]'s proposal could lead to a positive way forward. The social worker felt that [BJ] needed the specialist support over a period to provide an analysis of her problems. He felt that this could only be achieved within a secure environment. The staff member from The Elms was highly frustrated by the current situation because he felt that he had a progressive relationship with [BJ]. However he could not provide a full assurance that [BJ] would not put herself at risk, or risk others' safety.

The panel felt that [BJ]'s situation should be monitored closely and if she behaved positively, this should be an incentive for an early release from secure. [BJ]'s mother is critical to a positive future and it is critical that she is given full support to visit [BJ].

There were no issues about contact. A safeguarder was presently not deemed necessary and there were no issues not discussed and BJ's legal representative represented her interests.

The supervision requirement remains in place. Historically voluntary arrangements would not work. [BJ] is 15, vulnerable, and needs the care and protection and guidance of such an order."

[10] Before us, it was not disputed that the appellant would be deprived of her liberty only if she were placed in the secure unit at the Good Shepherd. If, instead, she were to be placed in the close support unit, she would be free to leave that unit at any time, and would not be deprived of her liberty. Following upon the decision of the children's hearing, the appellant was admitted to the Good Shepherd secure unit, as arranged by the social work department and the deputy head of care at the unit, and as described in Messrs McSparran McCormick's letter dated 21 August 2009, production 8 page 12.

Appeal to the sheriff (section 51), devolution minute, and further appeal to the Court of Session

[11] The appellant appealed to the sheriff in terms of section 51 of the Act, but only in relation to the variation authorising her placement in secure accommodation. In the written Appeal (number 6/3 of process) the appellant narrated the sequence of events leading to the decision to authorise secure accommodation, and contended that the decision was not reasonable and that the appellant should have been moved to an open unit as was her wish. The appellant's first four grounds of appeal were that (i) the panel's decision to place her in secure accommodation was unreasonable; (ii) the appellant did not meet the criteria for secure accommodation; (iii) the panel failed to have regard to the appellant's views (in particular that she should not be placed in secure accommodation); and (iv) the panel failed to give sufficiently clear reasons for the decision to place her in secure accommodation. The fifth ground of appeal contended that the panel's decision was in breach of articles 6 and 8 of the ECHR as -

" ... The decision of panel members in authorising placement in secure accommodation means that whether or not the appellant has her liberty further restricted will be by the decision of the chief social worker and person in charge of the residential establishment. In the event [that] she disagrees [with] their decision, she is provided with no right in law to appeal and in these circumstances is deprived of an entitlement to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The appellant further maintained that her right to respect for private and family life was interfered with.

[12] The sheriff deferred hearing the fifth ground to a later date inter alia to allow the appellant to lodge a devolution minute. On Friday 27 March 2009, the sheriff heard argument on the first four grounds. Part of the appellant's argument was that the children's hearing had wrongly taken into account the allegation relating to fire-raising. On Monday 30 March 2009, the sheriff partially refused the appeal under section 51, and confirmed the decision of the children's hearing "so far as relating to the arguments heard on Friday 27 March 2009". He issued written reasons including inter alia the following:

"[8] It is quite clear to me from the submissions and the answers lodged on behalf of the reporter, that even without consideration of the events of 3 February 2009 [i.e. the alleged fire-raising] there was ample material before the hearing, from previous hearings and previous reports lodged since October 2008, that entitled the hearing to conclude that the appellant had a history of absconding and puts herself at serious risk and those with whom she may come in contact. It is also clear to me from the reasons given by the hearing that there was proper and appropriate discussion about whether, the criteria for secure accommodation having been met, it was necessary to exercise the power concerned. It is clear that the hearing considered BJ's view that secure accommodation was not required, and that there had been no improvement in her behaviour since October 2008 to suggest that the imposition of a condition of secure accommodation was unnecessary.

[9] Turning to the reasons that are provided, they disclose not only that the hearing considers that BJ meets the criteria for secure accommodation, but goes on to specify why, insofar as it observes a history of absconding and that she puts herself at serious risk and those with whom she may come into contact. This meets the statutory test. It is clear that this decision was made with reference to the reports before the hearing and the discussions which took place at the hearing. It is in my view strictly sufficient without going into the detail of the facts upon which that conclusion is reached. It goes on to reveal that there was a discussion which took into account the appellant's view, which was noted as being a strong point, and there was then a discussion about whether it was necessary for the condition of secure accommodation to be imposed. It is stated that BJ required the specialist support over a period to provide an analysis of her problems and that this could only be achieved within a secure environment. This, in my view, is a legitimate consideration when considering whether it is necessary to impose the condition. It would not be a relevant consideration, of course, in considering whether she met the secure criteria, but I am not persuaded that the hearing erred in this way.

[10] Accordingly, in these circumstances, I have come to the conclusion, on the arguments so far presented to me, that the decision of the children's hearing was justified in all the circumstances and that the appeal should be refused."

[13] The appellant lodged a devolution minute which (as ultimately adjusted) stated inter alia:

"9. In terms of section 70(9) and (9A) of [the Act] the power of the children's hearing is restricted to specifying that the appellant is liable to be placed and kept in secure accommodation in the residential establishment specified.

10. The actual decision as to whether or not the appellant is to be placed and kept in secure accommodation is not amenable to appeal to, or correction by, an independent and impartial tribunal. The actual decision falls to be made with the agreement of the chief social work officer of the local authority in relation to which the appellant is a looked after child. The appellant avers that, in these circumstances, the provisions of section 70(9) and (9A) of [the Act] are incompatible with the appellant's right to a fair trial because the decision as to whether the appellant is to be placed and kept in secure accommodation is not made, and cannot be made, by an independent and impartial tribunal established by law. Furthermore, the provisions of section 70(9) and (9A) of [the Act] require the said decision to be made in a manner which is not independent of the local authority in relation to which the appellant is a looked after child.

11. In the circumstances, the provisions of section 70(9) and (9A) of [the Act] are averred to be incompatible with the appellant's rights under article 6(1) of the ECHR. A devolution issue arises in terms of schedule 6, Part I, paragraph 1(e) of the Scotland Act 1998. [There followed an averment relating to an alleged failure to act on the part of the Scottish Ministers, which was not insisted upon in the Inner House.]

12. [Paragraph 12 contained a contention that a devolution issue arose, which was no longer in issue in the Inner House.]

13. Section 135 of the [2004 Act], which amends the provisions in section 70(9), (9A) and (10) aforesaid, is incompatible with the Convention rights of the appellant, as previous condescended upon. The said provisions are accordingly outside the legislative competence of the Scottish Parliament. They are not law, and have no effect. The decision of the children's hearing on 16 February 2009, which was made in exercise of their powers in terms of section 70(9A), is accordingly unlawful. The purported legal basis for the deprivation of the appellant's liberty is not law. Her continued detention is unlawful ...

14. [Paragraph 14 contained a contention that the appellant was a "victim" of an unlawful act, for the purposes of article 34 of the ECHR, which was no longer contested in the Inner House.]

15. [On several bases specified in this paragraph] ... the appellant craves the court now to direct that the condition imposed by children's hearing at Stirling on 16 February 2009 shall cease to have effect, but only insofar as it specifies that the appellant is liable to be placed and kept in secure accommodation. Alternatively, she craves the court to release her from the said secure accommodation ad interim.

16. As this court has no power to declare the provisions already specified in [the Act] unlawful, the appellant craves the court to remit the devolution issues herein to the Inner House. Ultimately, the appellant intends to seek a declaration of incompatibility in terms of the Human Rights Act 1998, section 4, and further section 21(1), which defines Acts of the Scottish Parliament as subordinate legislation. Other remedies may be sought, in due course, such as damages for breach of the appellant's Convention rights."

[14] The sheriff sisted the Lord Advocate as a party to the proceedings. On 12 May 2009, the children's hearing removed the condition relating to secure accommodation, and BJ was accordingly released from secure accommodation (although she continued to live at the Good Shepherd unit under close supervision). On 25 May 2009, the sheriff heard a debate on the issue whether or not a devolution issue arose in the proceedings. On 28 May 2009, the sheriff held inter alia that, as the appellant was no longer liable to be placed and kept in secure accommodation, there was no live issue in relation to the fifth ground of appeal, the matter was academic, and no devolution issue arose. He refused the remaining parts of the appeal, and confirmed the decision of the children's hearing of 16 February 2009.

[15] The appellant then requested that a case be stated to the Court of Session in terms of section 51(11)(b) of the Act, contending that the sheriff's confirmation of the children's hearing decision of 16 February 2009 necessarily meant confirming and legitimising a past breach of the appellant's rights under article 5(4) of the ECHR, and in particular an unlawful deprivation of liberty between 16 February 2009 and 12 May 2009. The sheriff prepared a Stated Case, and submitted the following questions:

1.     Did I err in law in determining that no devolution issue arises in these proceedings?

2.     Did I err in law in determining that the section 51 appeal was academic because, by the time it came to be determined, the appellant was no longer liable to be placed and kept in secure accommodation?

3.     Having determined that no devolution issue arises, did I err in law in failing to allow the appellant a separate opportunity to make submissions in terms of the Human Rights Act 1998, sections 6(1), 7(1) and (6) and 8(1)?

4.     Notwithstanding that by the time the section 51 appeal came to be determined the appellant was no longer liable to be placed and kept in secure accommodation, is the appellant a 'victim' of an unlawful act for the purposes of article 34 of the ECHR, section 7 of the Human Rights Act 1998 and section 100(1) of the Scotland Act 1998?

5.     Did I err in law in confirming the decision of the children's hearing dated 16 February 2009?

[16] Two additional questions 6 and 7 were proposed by the Reporter. However in this appeal, counsel for the Reporter did not insist upon those questions, and indeed specifically invited the court not to answer them in case of confusion or misunderstanding in the future. Ultimately the parties agreed that the only live issue was that contained in question 5.

[17] On 17 May 2010, one week before the hearing in the Inner House, BJ ceased to be under supervision.

Submissions

Submissions for the appellant

[18] Counsel explained that parties were agreed that (i) the appeal raised a devolution issue; (ii) the appeal was not academic: the sheriff's decision was challenged inter alia on the basis that his confirmation of the children's hearing decision of 16 February 2009 in effect confirmed and legitimised a past breach of the appellant's article 5(4) rights, and in particular the unlawful deprivation of her liberty between 16 February 2009 and 12 May 2009; (iii) BJ was a "victim" for the purposes of the ECHR; and (iv) the crucial question in the Stated Case was question 5. That question should be answered in the affirmative, thus overturning the sheriff's decision which proceeded upon a past breach of articles 5 and 6 of the ECHR. Section 70 of the Act had been amended by the 2004 Act. The amended sub-sections 70(9), (9A) and (10) did not comply with the ECHR.

[19] The issue central to the appeal was that the children's hearing could only order that a child was "liable" to be placed and kept in secure accommodation: the actual decision whether and when a child should be so placed and kept was made by two officials, namely the person in charge of the secure accommodation, and the chief social work officer of the local authority. In relation to that decision, there was no right to be heard, no right of appeal, and no transparency. Letters from the appellant's representatives seeking reasons for the decisions taken by the officials had met with no clear response. The appellant had no confidence that the officials' decision had not relied upon the piece of disputed information, namely the alleged fire-raising, involvement in which the appellant wholly denied. The decision of the children's hearing could be subverted by the two officials, who were not independent, who did not have to hear the child's representations, and who did not have to give reasons. In the present case, for example, the children's hearing seemed to have in mind secure accommodation for a period shorter than three months, as they had commented that "[t]he panel felt that [BJ]'s situation should be monitored closely and if she behaved positively, this should be an incentive for an early release from secure". However the two officials appeared to be working on the basis of a period in secure accommodation of the full three months. While the children's hearing was an independent tribunal, (S v Miller 2001 SC 977), the two officials were not. The decision-making of the two officials did not meet the requirements of articles 5(4) and 6(1). Reference was made to Weeks v United Kingdom (1987) 10 EHRR 293 paragraph 61; De Wilde, Ooms and Versyp v Belgium (No. 1) (1971) 1 EHRR 373; Winterwerp v The Netherlands (1979) 2 EHRR 387 paragraphs 60 and 67; section 25 of the Children Act 1989 (the equivalent English legislation); Clayton & Tomlinson, Human Rights (2^nd ed) paragraphs 10.196 to 10.200, 10.244; the Regulations; proposed new Scottish legislation namely the Children's Hearings (Scotland) Bill, currently at Stage 1 in the Scottish Parliament; Reid v United Kingdom (2003) 37 EHRR 9, paragraphs 63 to 65, 77; and Van de Hurk v The Netherlands (1994) 18 EHRR 481 (a milk quota case in which it was held that the binding decision of an impartial tribunal could not be altered by a non-judicial authority to the detriment of an individual). Counsel added that judicial review was not sufficiently expeditious to provide an adequate remedy in relation to the decisions of the two officials. For example, the obtaining of Legal Aid would take time. Article 5(4) required a speedy review.

[20] Counsel initially sought a declarator of incompatibility of the relevant legislation as being non-Convention-compliant. Reference was made to section 4(4) of the Human Rights Act 1998, and to Smith v Scott 2007 SC 345. However in the course of the submissions presented on behalf of the Lord Advocate, counsel for the appellant accepted that such a remedy was not available in relation to Scottish legislation (in the present case, the amending 2004 Act). What was required was a declarator that the Scottish Parliament had acted outwith its legislative competence in terms of section 29 of the Scotland Act 1998. In the event that the court were persuaded that parts of section 70 of the Act did not comply with the ECHR, it would be necessary to have the case put out By Order (with such intimation as was necessary, for example to the Advocate General) to discuss further procedure, including specification of precisely which parts of section 70(9), (9A) and (10) should be declared "not law", and the relevance and effect (if any) of section 102 of the Scotland Act 1998.

Submissions for the Reporter

[21] Counsel submitted that question 5 should be answered in the negative. The court should focus on the circumstances of the particular case rather than embarking upon an abstract assessment of the legislation. The question was: had the legislation operated in a way consistent with the appellant's Convention rights, cf K v Authority Reporter 2009 SLT 1019. In the present case, there had been compliance with articles 5(4) and 6(1). The fact that the government was considering new legislation for children's hearings did not mean that the existing provisions were not ECHR-compliant. The content of the 2010 Bill was therefore of interest, but strictly irrelevant to the current dispute.

[22] The Reporter's position was that the children's hearing and the steps taken by the two officials constituted procedure which was compliant with articles 5 and 6. Article 5 did not require that the detention be "ordered" by a court: Martin v N 2004 SC 358; cf the English secure accommodation order in terms of section 25 of the Children Act 1989, as explained in LM v Essex County Council [1999] 1 FLR 988. What was required was judicial supervision: In re K (A Child) (Secure Accommodation Order: Right to Liberty)
[2001] Fam LR 377 paragraph 94. Access to a court was required at the outset of the detention procedure, in order to have the lawfulness of the detention tested: Reid v United Kingdom (2003) EHRR 9 paragraphs 63-65; Van Droogenbroeck v Belgium (1982) 4 EHRR 443; E v Norway (1990) 17 EHRR 30. In the present case, the advance authorisation by the children's hearing complied with the ECHR: cf Scordino v Italy (2007) 45 EHRR 7 paragraph 183; S v Knowsley Borough Council [2004] 2 FLR 716 paragraphs 44-46. Where a change of circumstances was foreseeable, there had to be periodic and regular review: Reid cit sup. The review period would vary according to circumstances. The children's hearing was a "court" in terms of article 6: S v Miller 2001 SC 977. Moreover there was an appeal to the sheriff in terms of section 51, and an appeal to the Court of Session. Further supervision was available in that if the child was not placed in secure accommodation within six weeks of the children's hearing decision, the child could apply for a review by the hearing. Furthermore, in terms of section 70(7), the hearing could impose a limit by requiring a review within a period they thought fit (for example, two weeks); otherwise there was a mandatory review at not longer than 3-monthly intervals. The flexibility built into the system by the involvement of the two officials facilitated compliance with the UN Convention on the Rights of the Child, which provided in Article 37(b) that detention of a child should be a last resort "and for the shortest appropriate period of time". The remedy of judicial review was a residual safeguard for the appellant. Emergency legal aid could be obtained, and the procedure could be swift. The sheriff's note recorded that he considered that there was enough of concern in the appellant's circumstances excluding any question of fire-raising (which had not been established) to make a placement in secure accommodation in her interests: paragraph [8] of the sheriff's decision, quoted in paragraph [12] above. The sheriff was entitled to take that view.

Submissions for the Lord Advocate

Question 5 of the Stated Case

[23] Counsel adopted the submissions made on behalf of the Reporter. The Lord Advocate's position was that the legislation complied with articles 5 and 6. What occurred on 16 February 2009 was a review of the lawfulness of detention by an independent and impartial tribunal. Thereafter the need for regular review was satisfied by various provisions in the statutory scheme: cf Winterwerp v The Netherlands (1979) 2 EHRR 387; Van Droogenbroeck v Belgium (1982) 4 EHRR 443; Salford County Council v BJ [2009] EWHC 3310 (Fam). In particular section 70(7) empowered the children's hearing to fix the period in secure accommodation at less than 3 months; the regulations required review at no longer than 3-monthly intervals; in terms of regulation 12, if the child had not been placed in secure accommodation within six weeks of the authorisation given by the children's hearing, the child could seek a review from the children's hearing; the child could appeal to the sheriff in terms of section 51; section 51(9) allowed the child to apply to the children's hearing to suspend the requirement of secure accommodation pending the appeal; and the local authority's obligations under their own legislation continued throughout. There were further time-limits in the legislation: for example, the need to bring a child before an independent tribunal within three days of his or her detention (regulation 5); the warrant procedure which permitted detention for 22 days, or if a continuation were obtained, 66 days; and the overarching maximum period of 3 months, when review was automatically required (regulation 11 and section 73(6) of the Act). Thus the legislative scheme contained many time-limits to ensure regular review by an independent tribunal. The legislation complied with the ECHR.

The devolution minute

[24] The appellant had lodged a devolution minute. The sheriff decided that there was no devolution issue, but the Lord Advocate, having carefully considered matters, conceded that there was a devolution issue. The minute as adjusted raised two devolution issues in terms of Schedule 6 to the Scotland Act 1998, namely (i) under paragraph 1 (a) of Schedule 6, were the provisions of section 135 of the 2004 Act not law, as being incompatible with convention rights; (ii) under paragraph 1(e) of Schedule 6, had the Scottish Ministers failed to provide a Convention-compliant process. Thus by her minute, the appellant not only challenged the lawfulness of her detention following the children's hearing on 16 February 2009, but also made a general attack upon the legislation as not complying with the ECHR (although the minute did not in fact specify how the Scottish Ministers had failed to provide a Convention-compliant process). Most of the argument in the Inner House had focused upon issue (i). It was for the appellant to demonstrate that the legislation failed to protect ECHR rights: K v Authority Reporter 2009 SLT 1019 paragraph [62]. An acceptance by the Lord Advocate that the appellant had "victim" status simply enabled her to argue her complaint, but did not mean that her argument should succeed, and it was not accepted that the legislation violated ECHR rights. The fact that new legislation was being contemplated (namely the Children's Hearings (Scotland) Bill 2010) did not mean that the existing legislation violated the ECHR. The appropriate remedy where an Act of the Scottish Parliament failed in some way to comply with the ECHR was a declarator that certain provisions of that Act were outside the legislative competence of the Scottish Parliament and accordingly were "not law": sections 4(3) and (4), and 29(1) of the Scotland Act 1998. But bearing in mind the disruption that such a declarator would cause, the court should consider removing any retrospective effect and also suspending the effect of the decision for a period in terms of section 102 of the 1998 Act. As presently framed, the devolution minute was too wide and vague: not all of the provisions in section 70(9), (9A) and (10) of the 1995 Act were said to be in breach of the Convention. Greater specification was required.

Discussion

[25] As was explained by the European Court of Human Rights in Reid v United Kingdom (2003) 37 EHRR 9, paragraphs 63 to 65:

"Article 5(4) provides a fundamental safeguard against arbitrary detention in requiring that an individual who is deprived of his liberty has the right to have the lawfulness of that detention reviewed by a court. The 'court' referred to in this provision does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country. The term denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and the parties to the case ... but also the guarantees - 'appropriate to the kind of deprivation of liberty in question' - 'of judicial procedure', the forms of which may vary but which must include the competence to 'decide' the lawfulness of the detention and to order release if the detention is not lawful.

An arrested or detained person is entitled before such a court to a review of the 'lawfulness' of his detention in light not only of domestic law requirements but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by para.(1). This does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person subject to the type of deprivation of liberty ordered.

An entitlement to a review arises both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter. In the review procedure, the competent courts are required to reach their decisions 'speedily'. The question of whether periods comply with the requirement must ... be determined in the light of the circumstances of each case."

[26] A child may be deprived of liberty if a children's hearing, in terms of section 70 of the Act, decides whether and for what period that child may be detained in secure accommodation. A children's hearing is an independent and impartial tribunal satisfying the requirements of a "court" in terms of the convention: S v Miller 2001 SC 977, Lord President Rodger at paragraphs [26] to [27]. Before making any decision, the children's hearing listens to submissions, reads reports, and considers all the facts and arguments. By deciding that a child is "liable to detention in secure accommodation" without giving any order in terms of section 70(7) (i.e. without stating a time - earlier than the automatic three-month review referred to below - at which the supervision requirement must be reviewed, and thus in effect specifying a period in secure accommodation of shorter than three months), the children's hearing in my view gives a considered ruling that the particular child is liable to be deprived of liberty for the maximum period of three months, being the time-period until the next automatic review in terms of regulation 11 of the Regulations and section 73(6) of the 1995 Act. Thus it was open to the children's hearing considering the appellant's case to decide that three months was too long a period in secure accommodation, and to make an order in terms of section 70(7) bringing the case before the hearing again in, say, two weeks. But that was not done in the present case.

[27] In addition to the provision of an independent and impartial tribunal to decide whether, and for how long, a child may be detained in secure accommodation, the Act and the Regulations contain provisions satisfying the requirement of regular review: cf Winterwerp v The Netherlands (1979) 2 EHRR 387; Van Droogenbroek v Belgium (1982) 4 EHRR 443; Salford County Council v BJ [2009] EWHC 3310 (Fam); Reid v United Kingdom (2003) 37 EHRR 9 paragraphs 63 to 65. There is, for example, the right of appeal to the sheriff in terms of section 51, with a right to seek suspension of the liability to be placed in secure accommodation pending the appeal (section 51(9)). There is the right to apply for review by the children's hearing if the child is not placed in secure accommodation within six weeks of the decision of the children's hearing (regulation 12). There is the requirement that a child be brought before a children's hearing within three days of any detention not authorised by such a hearing (regulation 5). There are restrictions on the period during which a child may be kept in secure accommodation by virtue of a warrant (regulation 9 and sections 45, 66 and 67 of the Act). There is the automatic review no later than three months after being placed in secure accommodation (regulation 11 and section 73(6) of the Act). In addition to the statutory provisions, there is the procedure of judicial review, which is capable of providing early hearings and a degree of despatch.

[28] The statutory scheme in the Act was duly implemented in the appellant's case. There was an initial decision to deprive the appellant of her liberty made on 16 February 2009 by the children's hearing, coupled with the various review provisions outlined above. In particular the children's hearing on 16 February 2009 had the benefit of the reports referred to in paragraph [7] above. The views of the appellant herself were heard, including her clearly-articulated view that she should not be placed in secure accommodation. Submissions from the appellant's lawyer and from the Reporter were taken into account. Having carefully weighed up all the information, the reports, and the submissions, the hearing reached the view that authorisation of secure accommodation for the maximum period of three months was necessary in the appellant's case. As the sheriff concluded in paragraph [8] of his written reasons, there was ample material justifying such a view, excluding any question of fire-raising (which the appellant vehemently denied). Following upon the hearing's decision, the appellant was duly placed in secure accommodation by the social work department and the depute head of care of the Good Shepherd Unit. The hearing's decision was thus immediately and fully implemented. The appellant then sought review of the hearing's decision by appealing to the sheriff in terms of section 51 of the Act. No application was made on her behalf for suspension of the condition that she reside in secure accommodation pending the outcome of the appeal (section 51(9)). On 30 March 2009, some six weeks after the hearing's decision on 16 February 2009, the sheriff issued a ruling rejecting the four arguments noted in paragraph [11] above. Ultimately the appellant remained in secure accommodation for a period of just under three months, until 12 May 2009 (the next review by the children's hearing).

[29] It will be seen that I do not accept that the observation of the children's hearing quoted in paragraph[9] above (namely that "...[BJ]'s situation should be monitored closely and if she behaved positively, this should be an incentive for an early release from secure ...") should be construed as an indication that the children's hearing had decided that the period in secure accommodation should be shorter than three months. In my view, that observation was simply an acknowledgement of the degree of flexibility accorded by section 70(9A)(a) of the Act to the two officials responsible at first hand for the actual placing and keeping of the appellant in secure accommodation. If the appellant's behaviour improved, the two officials could remove the appellant from secure accommodation (and perhaps transfer her to close supervision) without the necessity of a referral back to the children's hearing. I consider it important in the context of compliance with the ECHR that the statutory provisions give the officials only a one-way discretionary power - namely, taking the appellant out of secure accommodation. The officials could not place or keep the appellant in secure accommodation without the authorisation of the children's hearing: cf the observations in Reid v United Kingdom. By contrast, the officials could, ex proprio motu, decide not to place the appellant in secure accommodation, or could remove her from such accommodation. Prima facie neither such action would be to the appellant's detriment: contrast with the circumstances in Van de Hurk v The Netherlands (1994) 18 EHRR 481. On the contrary, both actions would be in keeping with the overarching policy set out in article 37(b) of the United Nations Convention on the Rights of the Child:

"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time [emphasis added]."

As it happens, it is unnecessary in this case to analyse more closely the nature and Convention-compliance of the one-way discretionary power, as the officials in the appellant's case simply implemented to the letter the carefully-considered decision of the children's hearing.

[30] In the result, I am satisfied that the events which occurred in the appellant's case did not constitute a breach of her rights in terms of articles 5 or 6 of the ECHR. As for her application to have sub-sections (9), (9A) and (10) - or parts thereof - declared "not law" as having been enacted outwith the legislative competence of the Scottish Parliament, it is in my view for the appellant to demonstrate to this court that, in the circumstances of her case, the application of the relevant legislation resulted in a breach or breaches of the ECHR: cf K v Authority Reporter 2009 SLT 1019 paragraph [62]. The appellant has not done so. The facts and circumstances of her case have not persuaded me that the enactment of any part of sub-sections (9), (9A) or (10) of section 70 exceeded the legislative competence of the Scottish Parliament by reason of failure to comply with the ECHR. The fact that the Scottish Parliament is currently reconsidering the law relating to children's hearings, including a bill which contains a proposed new right of appeal against the chief social worker's placements of a child in secure accommodation, does not alter my view.

[31] In all the circumstances therefore I am not persuaded that the operation of the statutory scheme in the appellant's case resulted in a breach of her Convention rights, or that the legislation has been demonstrated to have failed to comply with the ECHR.

Decision

[32] It was a matter of agreement that a devolution issue arose in these proceedings; that the issues in contention were not academic; and that the appellant qualified as a "victim" for the purposes of section 7 of the Human Rights Act 1998 and article 34 of the ECHR. I accordingly propose formally to answer questions 1, 2, 3, and 4 in the Stated Case in the affirmative. We were invited not to answer questions 6 and 7, and accordingly no answers are proposed. Question 5, which parties advised contains the one live issue in the appeal, should in my view be answered in the negative for the reasons given above. For completeness, I now refer to the issues raised in the appellant's devolution minute as adjusted. For the reasons given above, I am not persuaded that (1) the provisions of section 70(9) and (9A) of the Act are incompatible with the appellant's rights under article 6(1) of the ECHR; (2) section 135 of the 2004 Act (which amended section 70(9), (9A), and (10) of the Act) is incompatible with the appellant's Convention rights, and therefore outside the legislative competence of the Scottish Parliament; (3) the decision of the children's hearing on 16 February 2009 was unlawful; (4) the appellant's detention was unlawful.

[33] In the result, it is unnecessary that there should be any further procedure. I propose that the appeal should be refused.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord McEwan	[2010] CSIH 85 XA156/09 OPINION OF LORD HARDIE in the cause BJ Appellant; against PAULINE PROUDFOOT, Children's Reporter for Stirling Respondent: and THE LORD ADVOCATE Sisted Party _______

Appellant: O'Brien QC, Halley; Drummond Miller LLP (For Jardine Donaldson)

Respondent (the Reporter): Moynihan QC; Brodies LLP (For McSparran McCormick)

The Lord Advocate: Mure QC, McBrearty; Scottish Government Legal Directorate

26 October 2010

[34] I agree with your Ladyship in the chair that for the reasons given by your Ladyship questions 1-4 inclusive should each be answered in the affirmative; question 5 should be answered in the negative and the devolution minute should be dismissed.

[35] As your Ladyship has observed at paragraph 20 of her Opinion, senior counsel for the appellant acknowledged in the course of the hearing before this court that the remedy sought in the appellant's devolution minute was misconceived. The appellant ought to have sought a declarator that section 135, in whole or in part, of the Antisocial Behaviour etc (Scotland) Act 2004 ("the 2004 Act") was outwith the legislative competence of the Scottish Parliament in terms of section 29 of the Scotland Act 1998. It is unfortunate that the issue was not properly focused at the outset, but that omission has not deterred the court on this occasion from addressing the proper issue. I would observe that devolution minutes should not be lodged in civil or criminal proceedings as a matter of course. They should be reserved for cases in which counsel, after full consideration of all the relevant factors, considers that it is appropriate to raise a devolution issue. The relevant factors necessarily include the factual situation, the statutory framework within which any particular statutory provision appears and, above all, the remedy sought on behalf of the Minuter.

[36] As counsel for the appellant now accepts, the devolution issue to be determined in this case is whether the Scottish Parliament was acting within its legislative competence when it enacted section 135 of the 2004 Act, the effect of which was to amend section 70 of the Children (Scotland) Act 1995. In this respect the court is concerned solely with the legality of the statutory provisions in force in February and March 2009 being respectively the month during which the children's hearing was held and the sheriff heard the appeal from the decision of that hearing. I respectfully agree with your Ladyship that the terms of subsequent legislation, far less draft legislation, are of no relevance or assistance to us in determining whether the existing statutory provisions are compatible with ECHR.

[37] Moreover, the issue of compatibility with ECHR should not be considered as an abstract or theoretical exercise but should be related to the factual matrix of the case under consideration. The approach adopted on behalf of the appellant fails to recognise that when the detention of a child in secure accommodation is considered necessary for the welfare of the child, the statutory scheme has various safeguards enabling the child to challenge any such decision. Your Ladyship in the chair has referred to them in detail but they include restrictions on the periods during which a child may be detained in such accommodation by virtue of a warrant without a right of review by a competent court; a determination of the need for such detention by a competent court; regular reviews by that court of that determination within periods not exceeding three months; a right of appeal to the sheriff against a decision to authorise the detention of the child in secure accommodation and, in any such appeal, a right to seek release from the secure accommodation pending the determination of the appeal. In addition there is the possibility of subjecting to scrutiny, in a petition for judicial review, the decision of officials to implement the decision of the children's hearing by arranging for the child to be placed in secure accommodation and continuing to detain the child in such accommodation.

[38] The approach further fails to acknowledge that the decision imposing the supervision requirement that BJ was liable to be placed and kept in secure accommodation was taken by a competent court, namely the children's hearing and that BJ exercised her right of appeal against that decision to the sheriff. The supervision requirement was that BJ was liable to be placed and kept in secure accommodation at Bishopton "at such times as the person in charge of the residential establishment, with the agreement of the chief social work officer of Stirling Council, considers necessary". It is understandable why that flexibility was afforded to the appropriate officials. It enabled them to consider and to keep under review the period within which the child should reside in the secure accommodation specified. The officials were thereby empowered to determine, prior to the date of any review by the children's hearing of BJ's circumstances, whether it was necessary to continue to detain BJ in the secure accommodation. Thus the involvement of these officials was intended to operate to the benefit of BJ and, as your Ladyship has observed, facilitated compliance with Article 37(b) of the UN Convention on the Rights of the Child. The relationship between the judicial authority and the local authority having responsibility for the care of a child was considered by Judge LJ In re K (A Child) (Secure Accommodation: Right to Liberty) [2001] Fam 377 at paragraphs 93 and 94 where he observed:

"the [secure accommodation] order creates additional control over the child, and extends both to the child who is absconding, that is leaving accommodation as and when he wants to and so putting himself at risk of serious harm, and to the child in care because he is beyond parental control.

Even if it is faithfully applying the guidance to secure accommodation orders, the local authority, again, cannot impose such an order on its own initiative. The child's liberty may only be curtailed if the order is authorised by the court. The jurisdiction to make it depends on the local authority satisfying the court under section 25(1) [of the Children Act 1989]."

Although these comments were made in the context of the separate system which exists in England for dealing with children such as BJ, they are equally apposite in Scotland. They illustrate and emphasise that it is the judicial authority which determines the issue of the right of others, namely the local authority having the care of the child and the person in charge of the residential establishment, to detain the child in secure accommodation. On the basis of that determination and the warrant following thereon these officials are entitled to place the child in secure accommodation and to detain him or her there until the date fixed for a review of the child's case, unless prior to that date the officials determine that the interests of the child are no longer served by his or her detention in secure accommodation. In that event the officials are obliged to release the child from secure accommodation and place him or her in accommodation suitable to the child's needs.

[39] When the involvement and role of the officials is properly understood it is clear that they are not responsible for the deprivation of the liberty of BJ represented by her detention in the secure unit at Bishopton. Rather it was the children's hearing, as the appropriate judicial authority, which took that decision and which authorised the officials to detain BJ in the secure accommodation. The involvement of the officials and, in particular, their continuous review of BJ's circumstances and progress within the secure unit, ensured that BJ was not detained there for any longer than was necessary and, in fact, enabled her to be released shortly prior to the date for the review of her case by the children's hearing.

[40] In all the circumstances I am satisfied that there has been no infringement of the appellant's rights under ECHR and that there is no merit in the devolution issue, even when it has been properly formulated.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord McEwan	[2010] CSIH 85 XA156/09 OPINION OF LORD McEWAN in the cause B J Appellant; against PAULINE PROUDFOOT, Children's Reporter for Stirling Respondent: and THE LORD ADVOCATE Sisted Party _______

Appellant: O'Brien QC, Halley; Drummond Miller LLP (For Jardine Donaldson)

Respondent (the Reporter): Moynihan QC; Brodies LLP (For McSparran McCormick)

The Lord Advocate: Mure QC, McBrearty; Scottish Government Legal Directorate

26 October 2010

[41] I am in complete agreement with the result and all that your Ladyship has written. I will only add a few words of my own.

[42] For almost 50 years the system of children's hearings in Scotland has worked well. Since 1968 it has required few changes and is operated by trained dedicated people both lay and professional with minimal input from the courts. In the case of S v Miller 2001 S.C.977 the First Division in a very detailed judgment found its procedures to be Convention compliant in relation to articles 5 and 6. That alone should make this Extra Division slow to interfere with the system in the way suggested to us; especially on what is really a cosmetic amendment to the principal legislation which has allowed any Convention argument on article 5 at all. It is nothing to the point that a new tier of review may feature in proposed legislation. That is for the future and I reserve my opinion as to the wisdom of and need for it.

[43] We were referred to much Strasbourg jurisprudence but in my view that brings its own problems. Of course we are obliged by statute to take account of it. We may only do so if it is relevant to the issue before us.

[44] Cases involving recidivists and recalcitrant adults are a world apart in fact and degree from the present (see e.g. Van Droogenbroeck v Belgium and de Wilde and others v Belgium). With such cases there is little chance of cure or reform and speedy solutions are seldom indicated. The same is true of the mentally ill where drug treatment and a response to it takes time (see e.g. Reid v UK and E v Norway where there was judicial delay, and the court seems to take a long time to get to the only point which when it comes seems awkward and rushed; Opinion 143, judgment 66). Compensation for compulsory purchase in Italy (Scordino v Italy) and milk quotas in Holland (Van de Hurk v Netherlands) have in my opinion nothing to contribute to the present case.

[45] This case is about a child, and the problems of young children are quite different. Usually their difficulties are the product of misfortune, abandonment, gross parental shortcomings, cruelty, abuse and the like. They are young, vulnerable and without experience. They have to grow up, learn discipline, be taught and receive education. For them, the time frame is short. They need particular solutions which, of course, require speed but more importantly flexibility, so that they will have a chance in life. There is a very good analysis of all these problems in the case of In Re K etc [2001] Fam.377 by Thorpe L.J. (dissenting in part).

[46] Nothing said to us by the appellant in this case has persuaded me that we should interfere with the system in the way suggested.