EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 62
Lady Paton Lord Brodie Lord Wheatley	XA15/14   OPINION OF THE COURT   delivered by LORD BRODIE   in the Stated Case for the Opinion of the Court of Session   in the Appeal under section 163(1)(a)(iii) of the Children's Hearing (Scotland) Act 2011   by   JM Appellant;   against   EILEEN TAYLOR, Locality Reporter Manager Respondent:   _______________

 

Act:  Gilchrist;  Drummond Miller LLP

Alt:  Moynihan QC; Anderson Strathern LLP

 

10 July 2014

 

Introduction

[1]        The appellant is the mother of three daughters to whom this appeal relates: MH (born on 30 August 2002), CH (born on 26 January 2004) and TH (born on 21 February 2005) (“the children”). The children are subject to compulsory supervision orders, as defined by section 83 of the Children’s Hearing (Scotland) Act 2011.  The orders were originally imposed by a children’s hearing as supervision requirements in terms of section 70 of the Children (Scotland) Act 1995.  The children have resided with foster carers since April 2012.  The foster carers with whom MH now resides are a different couple from the foster carers with whom both CH and TH reside.

[2]        The father of the children is the appellant’s former partner, JO. The appellant no longer resides with JO.

[3]        The appellant is also the mother of two sons: KH Junior (born on 29 May 2007) and JPH (born on 16 October 2011). They too are subject to supervision orders and reside with foster carers. The father of KH Junior and JPH is the appellant’s present partner, KH, with whom she resides.

[4]        The children are subject to directions regulating contact with the appellant in terms of which the appellant has a minimum of two hours supervised contact with the children per fortnight. This appeal arises from the appellant’s wish to have a longer period of contact with the children, free from supervision. It relates to a decision of the children’s hearing dated 23 July 2013.

 

Orders made by children’s hearings in respect of the children prior to 23 July 2013

[5]        The first of a number of orders in respect of the children was made by a children’s hearing on 23 October 2007 when it issued a warrant to bring them to a hearing. The children’s reporter had referred the cases of the children to a children’s hearing on the grounds that, in terms of section 52(2)(c) of the 1995 Act, they were likely to suffer unnecessarily or be impaired seriously in their health or development due to lack of parental care. Grounds of referral were held established by the sheriff at Glasgow on 21 December 2007.  The orders made by children’s hearings thereafter in respect of the children (prior and subsequent to the commencement of the relevant provisions of the 2011 Act on 24 June 2013) include the following.

[6]        On 18 April 2012 a children’s hearing made place of safety orders in respect of these children in terms of section 66 of the 1995 Act. The reasons given by the children’s hearing were that the appellant and her partner, KH, had refused the help previously supplied to them; that the children had extensive dental problems and lice and flea bites; that the children were stealing food at school because they were hungry and were far behind their peers educationally; that the conditions in the house occupied by the family were poor with hygiene being a major concern; and that the appellant and KH were unable to provide even basic care for the children. Subsequent to 18 April 2012 the children have been accommodated by the local authority in terms of its obligation in terms of section 25(1)(c) of the 1995 Act by being placed with foster carers.

[7]        On 20 June 2012 a children’s hearing reviewed the supervision requirements in respect of the children in terms of section 73(8) of the 1995 Act. Having heard from, inter alia, the legal representatives of the appellant and KH, the children’s hearing continued the supervision requirement in terms of section 73(9)(e) with the conditions that the children resided with foster carers, that the appellant should have contact with the children for a minimum of three hours per fortnight and that KH should have no contact with the children.

[8]        On 25 October 2012 a children’s hearing appointed a safeguarder in terms of section 41 of the 1995 Act.  The safeguarder provided a report dated 20 December 2012 for consideration at a children’s hearing on 18 January 2013. He recommended that the children should continue to be subject to a supervision order, that they continue to reside with foster carers and that there be supervised contact between the children and the appellant for two hours once a fortnight.  On 18 January 2013 the children’s hearing varied the supervision requirement by reducing the length of contact between the children and the appellant to two hours once per fortnight but to have no contact with KH, the reason given being that the children had clearly stated that they did not wish to see KH and that this was accepted by KH.

 

The decision of the children’s hearing on 23 July 2013

[9]        By letter from her solicitors dated 28 May 2013, the appellant requested the Reporter to arrange a children’s hearing to review the decisions of the children’s hearing on 18 January 2013.  This was an exercise of the right conferred on the appellant as a relevant person in relation to the children by section 132 of the 2011 Act to require a review of a compulsory supervision order on the termination of the period of three months beginning with the day on which the order was made. In the event of a review being required, the Principal Reporter (and accordingly the reporter to whom the Principal Reporter delegates his functions in terms of schedule 3 to the 2011 Act, hereinafter “the Reporter”) comes under a duty, in terms of section 137(2) to arrange a children’s hearing to review the compulsory supervision order.  By virtue of sections 83(1) and (2)(g) and 138(3)(b) of the 2011 Act, on such a review the children’s hearing has power, inter alia, to vary directions regulating contact between a specified person and a child, such as had been imposed in respect of the appellant and the children by the children’s hearing on 18 January 2013.

[10]      The appellant and the children attended the hearing on 23 July 2013, as did the appellant’s legal representative, all four foster carers (they having been deemed relevant persons at a pre-hearing panel on 9 July 2013), and the social worker who had coordinated the integrated assessment reports and action plans in relation to the children dated 30 May 2013 and who, as we would understand it, has principal responsibility for the family.  As is required by rules 34 and 35 of the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013 (“the 2013 Rules”), all those attending the hearing and the members of the children’s hearing had been provided with, inter alia, copies of all decisions and reasons for decisions previously made by children’s hearings in respect of the children, the safeguarder’s report dated 20 December 2012, and the integrated assessment reports and action plans in relation to the children dated 30 May 2013.

[11]      As we understand it, it was the contention of the appellant at the children’s hearing on 23 July 2013  that the measure directing contact should be varied by directing contact between the appellant and the children twice per week for a minimum of four hours per week unsupervised. It was not suggested that the children should not continue to be accommodated by the local authority with foster carers or that the supervision order be otherwise varied.  It was not suggested that KH should have contact with the children. Equally, it was not suggested that the appellant should not continue to have contact with the children. The issues for the children’s hearing were therefore what should be the minimum extent of the contact and whether it should be subject to supervision. The hearing is timed as having begun at 1445 hours and as having ended at 1730 hours. Ms Gilchrist, who appeared on behalf of the appellant before us, advised that in the course of the discussion the children were asked and answered questions. They expressed their wish to see the appellant more often, with MH at least expressing the wish to see the appellant every day. The discussion also included the topic of the activities arranged for the children by the foster carers, including their attendance at swimming, dancing and karate classes. As we would understand it, there was the opportunity for the members who constituted the hearing to canvass all factual issues bearing on the appellant’s wish that the hours of contact with the children be extended and that the contact be unsupervised.

[12]      The decisions made in respect of each of the children at the conclusion of the hearing were in similar terms. They are recorded in respect of each child as follows:

“Decision 1 Not to appoint a safeguarder

  Decision 2 To continue the compulsory supervision order with variation

  Decision 3 To deem Glasgow City Council as the implementation authority    and make the compulsory supervision order for 1 year

  Decision 4 To make the following measures on the CSO –

1. [The child] shall reside with [the foster carers]
2. [The child] shall have supervised contact with [the appellant] a minimum of once every two weeks along with her sisters …
3. [The child] shall have contact a minimum of every 2 months for 2 hours with all her siblings.
4. [The child] shall have no contact with [JO] and [KH]
5. The place where [the child] resides shall not be disclosed to [the appellant] or [KH]”

 

[13]      The stated reasons for the decisions common to the three children (there was an additional reason relating to MH in respect of her placement with different foster carers than those with whom CH and TH were placed) were recorded as follows:

“Decision 1  The hearing made this decision for the following reason: We had sufficient information to make our decision

 

Decision 2  The hearing made this decision for the following reason: The grounds issues that brought [the child] to a hearing are still very relevant.

 

Decision 3  The hearing made this decision for the following reason: Glasgow is the responsible authority.

 

Decision 4  The hearing made this decision for the following reasons:

[The child] shows real affection with her mother and the bond needs to be kept. [The appellant’s] previous lack of insight into the care and protection of her children means that this contact needs to be supervised. This was the current level and seems to meet her needs.

 

There is a need for the children to maintain family bonds with each other and this meets that need within the constraints of each child’s busy social calendar.

 

Following previous allegations around the behaviours of [JO] and [KH] and taking into consideration the girls’ wish not to see these men a condition of non-contact was attached.

 

To safeguard the foster placement it was felt that a non-disclosure measures [sic] should be added in light of historical concerns.”

 

 

The appeal to the sheriff

[14]      The appellant appealed the decision of the children’s hearing of 23 July 2013 to the sheriff, insofar as the decision related to the direction as to contact, in terms of section 154(1) of the 2011 Act.  In support of the proposition that the decision of the children’s hearing was not justified, six lines of argument were advanced on behalf of the appellant:  (1) the hearing had failed to place sufficient weight on the finding that the children show real affection for the appellant;  (2) the hearing had failed properly to consider the children’s and the appellant’s rights in terms of article 8 of the European Convention on Human Rights;  (3) the hearing had failed to take into account relevant factors, namely the children’s views and whether a higher level of contact would be beneficial to the children;  (4) the hearing had failed to explain why it had concluded that the current level of contact maintained the bond between the children and the appellant and met the needs of the children; (5) the hearing had considered irrelevant (and unspecified) factors when coming to its decision, namely that the children had a “busy social calendar” of activities arranged by the foster carers; and (6) the hearing had failed to consider the current position of the appellant and had relied solely on “previous lack of insight into care and protection”, without specifying what risk the children were being protected against by requiring the measure of contact to be supervised.

[15]      The appeal came before the sheriff at Glasgow on 24 September 2013.  Having heard submissions on behalf of the appellant in support of the appeal and on behalf of the Reporter in response, the sheriff was satisfied that the decision appealed against was justified in all the circumstances and accordingly confirmed the decision in terms of section 156(1)(a) of the 2011 Act.

[16]      The appellant now appeals against the sheriff’s determination of the appeal against the decision of the children’s hearing, on point of law and procedural irregularity, as provided by section 163(9) of the 2011 Act. The appeal is by way of stated case for the opinion of this court, in terms of section 163(1)(a)(iii) of the 2011 Act.

 

The case stated by the sheriff

[17]      In response to the appellant’s application, the sheriff prepared a draft stated case dated 21 November 2013. Both the appellant and the respondent proposed adjustments.  After a hearing on adjustment, the sheriff rejected all the proposed substantive adjustments other than the appellant’s proposal that a further question be added in the terms of what is question (6) below. The stated case, as adjusted, is dated 27 December 2013.

[18]      In the stated case, as adjusted, the sheriff poses the following questions for the opinion of this court:

(1)        Was I entitled to conclude that the children’s hearing had provided sufficient reasons to justify their decision in refusing to increase the level of contact between the appellant and her children?

(2)        Was I justified in reaching the decision I did?

(3)        Did I err in concluding that the children’s views expressed at the children’s hearing and which were not recorded in their decision was not a procedural irregularity?

(4)        Did I err in concluding that article 8 in respect of the appellant had not been interfered with?

(5)        Did I err in being satisfied that the decision of the children’s hearing was justified in all the circumstances of the case?

(6)        Having concluded that the children’s busy social calendar was an irrelevant factor for the determination of the question of contact between the appellant and the children did I err in refusing the appeal?

 

Discussion and disposal

The questions of law for the opinion of the court

(1) Was I entitled to conclude that the children’s hearing had provided sufficient reasons to justify their decision in refusing to increase the level of contact between the appellant and her children?

[19]      Ms Gilchrist drew attention to rule 6(1)(c) of the 2013 Rules which requires the chairing member of a children’s hearing to ensure that a record is made of the decisions or determinations made by the hearing and the reasons for these decisions or determinations, and to rule 88 which requires the Reporter to give, within five days of the hearing, the child, each relevant person and any appointed safeguarder the decision of the children’s hearing and the reasons for that decision (as well as other information).  She referred to what Lord President Hope had said in H v Kennedy 1999 SCLR 961 at 964 B to 965B and the requirement set out there for a clear statement of the material considerations to which the children’s hearing had regard in their decision.  She contrasted that with what was recorded in the present case which gave no indication of why the hearing had decided as it did. The statement that the current level of contact seemed to meet the child’s needs did not explain what these needs were.  There was no reference to the discussion which had taken place at the hearing or any up-to-date assessment of how the appellant was managing contact and how it was affecting and regarded by the child. There was no discussion as to how contact was impacting on the welfare of the children and what contribution it was making to maintaining the bond between the children and the appellant.  The giving and documenting of sufficient reasons was necessary to inform any differently constituted children’s hearing which was considering the children’s cases.  Moreover, the appellant and children were entitled to an intelligible explanation as to why there had to be interference with their lives. The appellant had learning difficulties and therefore the reasons for the decision had to be made explicit.

[20]      In the passage from his opinion in H v Kennedy particularly relied on by Ms Gilchrist (supra at 964) Lord President Hope said this:

 “What is in issue in this case is how ... general principles are to be applied to the statement of reasons made by the chairman of the children's hearing … What is required … is a clear statement of the material considerations to which the children's hearing had regard in their decision. The statement must be intelligible to the persons to whom it is addressed and it must deal with all the substantial questions which were the subject of the decision”.

 

However, as Mr Moynihan, who appeared for the respondent before us, pointed out, the majority opinion in H v Kennedy was given by Lord Mayfield whose reasoning was agreed both by the Lord President and by Lord Allanbridge. What Lord Mayfield said (supra at 973 to 974) was this:

“It is clear that the proceedings at a children's hearing are intended to be informal. The procedure is that there is an informal discussion before a decision is reached in which anyone present can participate. The parents, their agent and the safeguarder are entitled to be present. Our information was that they were present in this case. Following the discussions, the parties have to be informed by the chairman of the decision. The chairman has to make a report in writing which includes a statement in writing of the reasons for the decision. It was not suggested that the proper basic procedures had not been carried out.

It is clear from the findings in this stated case that there was a continuous and ongoing process involving the appellants, who attended the hearings along with their agent. The safeguarder also attended and the sheriff has referred to reports made by him. Accordingly, the history of this case and the numerous reviews in which the children and others were involved make it perfectly clear that there were many discussions with the parents and the agent of the parents and, ultimately, the safeguarder and that any of those parties was entitled to enter any discussions and put forward a point of view. It is in my view clear on the findings that the parents were aware of the proposals relating to the future of the children. The sheriff in my view was well entitled to conclude that in every stage before a decision was taken at the end of the discussions it was a matter for the children's hearing on all the information before them to reach a decision as to the future supervision and care of the children. In my view it is clear that, when consideration is given to the whole circumstances since the beginning of the involvement of the children's hearings and the various reasons given in decisions within the period culminating in the reasons stated in the decision of 10th October, it cannot be said, when the whole picture is revealed, that the reasons in that decision were inadequate.”

 

As we have already observed, the Lord President agreed with Lord Mayfield’s reasons.  Moreover, Lord Hope said this (supra at 965):

“...the decision taken was to impose conditions of foster care, and I think that the reasons given were adequate to explain that decision against the background of the review reports and the circumstances to which the sheriff has referred in his discussion of this question. The restrictions on supervised access were, I think, perfectly intelligible in the light of the decisions in each case that the children were to remain in local authority care. The children's hearing were concerned at this stage with a point of detail, ancillary to these decisions, which did not need to be more fully explained.”

 

[21]      We accept that the reasons given by a children’s hearing should be a clear and intelligible statement of the material considerations to which the hearing had regard. They should be “proper and adequate”, to use the language of Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345 which is referred to by Lord President in H v Kennedy.  It would follow, as we took Mr Moynihan to concede, that a failure to notify proper and adequate reasons would amount to a procedural irregularity, albeit that rule 88 imposes the obligation to notify on the Reporter, whereas the obligation to give reasons is that of the hearing and the duty to record them is that of the chairing member (rule 6).  However, what will amount to proper and adequate reasons depends on context and circumstances. We agree with Lord Mayfield that the context for a particular decision by a children’s hearing includes what has been decided and documented as decided at the previous hearings attended by the appellant and the children, and the contents of the various reports with which the children and relevant persons will have been provided. It is not as if the participants at the hearing on 23 July 2013 were coming to matters afresh. The hearing was part of what Lord Mayfield characterised as “a continuous and ongoing process”. The reasons for the direction on contact in the present case are admittedly shortly stated. That is not to say that they were inadequate. Indeed, they cover all the salient points. As Mr Moynihan submitted, the reasons are consistent with the information that appears in the reports which had been provided to the hearing, particularly the safeguarder’s report for the hearing on 18 January 2013 (which had made the decision which the appellant sought to vary) and the integrated assessment reports and action plans in relation to the children dated 30 May 2013. The reasons identify that the child did not wish to see KH because of his behaviour (which is documented in the reports) but that the appellant, who resided with KH, lacked insight into that matter, hence the need for continuing supervision of contact. They acknowledge that the child has affection for the appellant and the bond with her should be kept but that the current level of contact seems to meet the child’s needs.

[22]      We accordingly agree with the sheriff in finding no error of law or procedural irregularity in the children’s hearing’s statement and recording of its reasons for continuing the contact direction made on 18 January 2013 without further variation and would answer this question in the affirmative.

 

(2) Was I justified in reaching the decision I did?

[23]      This is an oddly worded question, but what is of more importance is that it is framed in entirely general terms when what is required is something specific.

[24]      In terms of section 156 (1), on the appeal to her, it was for the sheriff to determine whether she was satisfied that the decision of the children’s hearing was “justified”, but in posing a question for the opinion of this court, when the sheriff’s determination in its turn is subject to appeal, the question is whether the sheriff has erred on a point of law or there has been a procedural irregularity. Accordingly, in the framing of a stated case “it is essential that specific and relevant questions must be posed in the case in order to focus the error or errors of law which it is contended have been made by the sheriff”: C v Miller 2003 SLT 1379 at para 80.  This question does not do that.  Neither does question (5).  Accordingly they can only be sensibly answered on the basis of the answers to the more specific questions. On that basis we would answer this question in the affirmative.

 

(3) Did I err in concluding that the children’s views expressed at the children’s hearing and which were not recorded in their decision was not a procedural irregularity?

[25]      Ms Gilchrist drew our attention to section 27(3) of the 2011 Act which requires a children’s hearing to give a child the opportunity to express her views and to have regard to any views expressed by the child.  She also drew attention to the requirement in rule 8 of the 2013 Rules to include the child’s views in certain documents.  In this case the children had expressed their views to the children’s hearing.  In particular, at least as it was put to the sheriff, they had expressed the view that they wanted to see their mother every day.  What had been said by the children had not been recorded.  Nothing was recorded as to what assessment there had been of the children’s maturity in order to determine what weight should be attached to their views.  When introducing her submissions, Ms Gilchrist seemed to be suggesting that as a matter of generality a failure to have regard to a relevant factor, of itself amounted to a procedural irregularity, but as she developed her argument, she turned her focus more particularly on rule 8 of the 2013 Rules. That rule provides as follows:

“Where any document is to be given to members of the children’s hearing or pre-hearing panel under, or by virtue of the Act, or these Rules, the document must contain any views expressed by the child which have been given to the person who has prepared the document.”

 

The decision of the children’s hearing on 23 July 2013 would be given to the members of subsequent children’s hearings.  Accordingly, so Ms Gilchrist submitted, the views expressed by the children to the hearing on 23 July 2013 had to be contained in the decision.  Omitting them, Ms Gilchrist argued, had amounted to a procedural irregularity.

[26]      We disagree.

[27]      Contrary to what Ms Gilchrist suggested initially, a failure to have regard to a relevant factor whether by a children’s hearing or by any other decision-maker, is not of itself a procedural irregularity; an error of law perhaps, but not a procedural irregularity. Moreover, while we accept that rule 8 imposes a procedural requirement which, if not complied with, would amount to an irregularity, we do not accept that the decision of a children’s hearing is a document to which rule 8 applies.

[28]      As Mr Moynihan submitted, rule 8 imposes a duty on persons who prepare documents which are to be given to members of children’s hearings to include in these documents any views expressed by the child “which have been given to the person who has prepared the document”. In terms of section 121 of the 2011 Act at a hearing the chairing member must ask a child whether the documents provided to him accurately reflect any views he has expressed.  In terms of rule 58(2) of the 2013 Rules, where, in response to the chairing member’s inquiry, the child confirms that the documents do not accurately reflect his views, then the chairing member must endeavour to clarify the child’s views.  While these provisions for ensuring that the hearing receives an accurate account of the child’s views make sense where the views are contained or purportedly contained in documents and therefore open to correction, they make less sense if what purports to record the child’s views is a decision which by the time of the next hearing will not be appealable and therefore final in its terms. The distinction as between documents on the one hand and decisions, determinations and reasons on the other is maintained throughout the 2013 Rules. There are four stages in the decision-making process.  First, in terms of rule 62(2), each member of the children’s hearing must state their decision. Second, in terms of rule 62(3), the chairing member must confirm and explain the decision of the hearing and state the reasons for that decision. Thus far the process is an oral one but, at the third stage, the chairing member must ensure that a record is made of the decision and reasons and sign and date the decision and reasons.  Fourth, in terms of rule 88 the Reporter must notify the decision and the reasons to the child, each relevant person and the safeguarder.  The decision and reasons, as recorded in writing, then become part of what are referred to in the Rules as “all decisions and reasons”, copies of which, in terms of rule 34(3)(b), must be provided by the Reporter to the child, each relevant person and the safeguarder prior to a hearing and, in terms of rule 35(1)(b), be provided to the members of the hearing. They are to be contrasted with “any report or other information” which must be provided to the child, each relevant person and the safeguarder in terms of rule 34(6)(b);  and “any report or other document” which must be provided to members in terms of

rule 35(1)(j).

[29]      Restating this question slightly as:  Did I err in concluding that the failure to record the children’s views expressed at the children’s hearing in the decision was not a procedural irregularity?, we would answer it in the negative.

 

(4) Did I err in concluding that article 8 in respect of the appellant had not been interfered with?

[30]      It was agreed between counsel that this question should be answered in the affirmative. The sheriff had felt able to conclude that there had been no interference with the appellant’s article 8 rights. That was not a position, Mr Moynihan emphasised, with which the respondent wished to associate herself. Mr Moynihan expressly accepted that the making of a supervision order with a direction as to contact, albeit in accordance with law, was an interference by the state in both the appellant’s and the children’s right to respect for their family life, as guaranteed by article 8 of the European Convention on Human Rights (see Haase v Germany (2005) 40 EHRR 19 and Johansen v Norway (1997) 23 EHRR 175). The apposite question in the present case was whether this admitted interference was justified as necessary for the protection of health and morals and the rights and freedoms of others (here the children).  The sheriff had been applied to with a view to her adjusting her question to one which better reflected what was in issue between the parties, but she had declined to do so, for reasons which were not clear.  The question therefore remained as originally posed in the draft stated case.  Construed literally it had to be answered in the affirmative.  The sheriff had been wrong.  However that did not mean that she should have allowed the appeal.  To do that she would have been able to conclude that the decision of the children’s hearing was not justified because it amounted to a breach of the appellant’s or the children’s article 8 rights.  That would have required the sheriff to assess the proportionality of the direction as to contact and to determine that it was disproportionate.  That the sheriff did not do.

 

(5) Did I err in being satisfied that the decision of the children’s hearing was justified in all the circumstances of the case?

[31]      Our observations as to the utility of generally stated questions and how they may be answered which appear under question (2), apply equally here. We would answer this question in the negative.

 

(6) Having concluded that the children’s busy social calendar was an irrelevant factor for the determination of the question of contact between the appellant and the children did I err in refusing the appeal?

[32]      Where a children’s hearing has had regard to an irrelevant factor in coming to its decision that might lead the sheriff, on an appeal in terms of section 154(1), not to be satisfied that the decision to which the appeal relates is justified. In that event, where the decision is one to which section 156(2)(a) applies, he must take the action there prescribed; and, where the decision is not one to which section 156(2)(a) applies, he may take one of the steps specified in section 156(3).  These steps include requiring the Reporter to arrange a hearing and continuing, varying or terminating any order.

[33]      In the present case the sheriff appears to have taken the view that the children’s hearing had had regard to “the children’s busy social calendar” when deciding to continue the direction as to contact between the children and the appellant.  The sheriff expresses the opinion that this was not a relevant factor.  We might agree with that if the children’s hearing had indeed proceeded on the basis that the interest of the children in having contact with the appellant was to be subordinated to the need to accommodate the children’s participation in leisure activities organised by the foster carers.  However, as we understood Ms Gilchrist to come to accept, we do not consider that the children’s hearing did any such thing.  It is plain to us on a reading of the decision and reasons that the various elements within the reasons are intended to correspond to the various elements within the decision. The reference to the children’s busy social calendar occurs in a reason which relates to that element of the decision which is concerned with contact as among the children and their step-brothers, KH Junior and JPH.  We would suggest that that is quite apparent on consideration of the relevant sentence within the reasons:  “There is a need for the children to maintain family bonds with each other and this meets that need within the constraints of each child’s busy social calendar.”  What is being addressed at this point in the reasons is contact among the siblings, not contact between the children and the appellant.

[34]      It follows that irrespective of the opinion of the sheriff as to the relevancy of this factor had it informed the decision of the children’s hearing on the issue of contact between the children and the appellant, she cannot be said to have erred in refusing the appeal on the basis originally suggested by the appellant in her submission to this court.  We will therefore answer this question in the negative.

 

Summary of answers to the questions for the opinion of the court

1. We answer this question in the affirmative.
2. We answer this question in the affirmative.
3. We answer this question in the negative.
4. We answer this question in the affirmative.
5. We answer this question in the negative.
6. We answer this question in the negative.

 

Disposal

[35]      In terms of section 163(10) of the 2011 Act, on deciding an appeal such as this, the court must remit the case to the sheriff for disposal in accordance with such directions as the court may give. That is consistent with the role of this court being limited to answering such disputed questions of law as may be necessary for the sheriff to exercise his wider jurisdiction under sections 156 of the 2011 Act. We were told that the Reporter will arrange a children’s hearing for review of the supervision orders in respect of the children for 16 July 2014, as she must do if the current supervision orders are not to expire in terms of section 83(7)(a)(i).  We accordingly will remit the case to the sheriff with a view to her continuing the supervision orders with the consequence that they will be subject to review by the children’s hearing on 16 July 2014.  We reserve all questions of expenses.

 

 

Postscript

[36]      Litigation should have a purpose. In the present case we would see that as having been lost sight of.

[37]      In terms of section 25 of the 2011 Act, in coming to a decision about a matter relating to a child, a children’s hearing, pre-hearing panel or court is to regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the paramount consideration. Ms Gilchrist explained as much when introducing her submissions.  She emphasised that the child is or should be at the heart of the children’s hearing system and the legal procedures ancillary to that system. We agree.

[38]      What, specifically, will safeguard and promote the welfare of a particular child in the particular circumstances in which that child finds herself will vary from case to case.  The question is entirely fact sensitive. The law provides a framework (and sometimes more than one framework) within which decisions as to what will safeguard and promote the welfare of a child are made. Such a framework is necessary. When properly understood and properly made use of, the framework should aid the decision-maker in making a decision which does in fact safeguard and promote the welfare of the child but the decision must be made on the basis of the facts as determined in the particular case. The framework may provide the question. It does not, of itself, provide the answer.  A decision-maker cannot come to a decision about a matter relating to a child which does indeed safeguard and promote her welfare simply by correctly applying a rule of law or properly observing procedural proprieties if it is not seised of all the relevant facts.

[39]      The matter in issue here is what number of hours of contact as between the appellant and the children and what conditions as to supervision of that contact would best safeguard and promote the welfare of the children in circumstances where it is accepted that at least in the immediate term it is best for the children that they be accommodated with their foster carers. That is a question that this court is simply not equipped to resolve. Given the nature of the procedure adopted before her, no more was the sheriff. That is because the courts do not have access to all the facts bearing on what is an entirely fact-sensitive question.

[40]      By referring to the nature of the procedure adopted before the sheriff what we mean is that in presenting the appeal to the sheriff the appellant’s legal representatives concentrated on what were submitted to be the legal deficiencies of the children’s hearing’s decision not to vary the contact direction, rather than concentrating on the substantive merits, from the perspective of the welfare of the children, of making the variation which the appellant wished.  As a result, as Ms Gilchrist conceded, while the sheriff might have been persuaded, because of the deficiencies of the decision under appeal, to require, in terms of section 156(3)(a), the Reporter to arrange a children’s hearing to consider varying the contact direction, as sought as an alternative remedy by the appellant in her appeal, the sheriff could not, consistent with her duty under section 25 to safeguard and promote the welfare of the children, vary the direction at her own hand, in terms of section 156(3)(b), as sought by the appellant as her principal remedy.

[41]      Concentrating on what they saw as the legal deficiencies of the decision of the children’s hearing was a matter of choice on the part of the appellant’s representatives. An appeal to this court from a determination by the sheriff is limited to point of law and any procedural irregularity. The jurisdiction of the sheriff on an appeal from the decision of a children’s hearing is potentially somewhat wider.  In terms of section 156(1) of the 2011 Act, the question for the sheriff in an appeal under section 154 is whether the decision to which the appeal relates is “justified”.  Moreover in an appeal under section 154 of the 2011 Act, the sheriff may (but need not) hear evidence from, in a case such as this: the children, any relevant person in relation to the children (including the appellant), an author or compiler of a report, the Reporter, and any other person who the sheriff considers may give material evidence (see 2011 Act section 155(4) and (5), and Child Care and Maintenance Rules 1997 rule 3.56(3)).  In the present case those acting for the appellant did not ask the sheriff to hear evidence.  Ms Gilchrist explained that, notwithstanding the terms of the written submission that was put before the sheriff which included the submission that the sheriff has power under the 2011 Act to undertake a wide review of the children’s hearing decision, this was because they felt constrained by the interpretation of the extent of the sheriff’s jurisdiction provided by Sheriff Principal Nicholson in W v Schaffer 2001 SLT (Sh Ct) 86 at 87K to 88A, a statement of the law which is endorsed by Norrie Children’s Hearings in Scotland (3^rd edit) at para 14-13.

[42]      The question as to whether what was said in W v Schaffer was both correct and comprehensive is for another day. For present purposes it is sufficient to observe that the best outcome that the appellant could have obtained from the appeal to the sheriff on the grounds selected by her legal representatives was an order requiring the Reporter to arrange a children’s hearing to consider varying the contact direction. It will be recollected that that outcome was available to the appellant at her own hand by virtue of section 132 of the 2011 Act, albeit once three months had passed after the decision which it is sought to have varied.  We heard the appeal on 25 June 2014.  Thus, by appealing to this court, rather than acquiescing in the decision of the sheriff and seeking a further review of the supervision order by the children’s hearing as soon as it was competent to do so, the appellant has delayed the possibility of obtaining the outcome she wishes by something of the order of six months.  Another way of expressing that is to say that the appeal to this court, with all its consequences for the allocations of resources, financial and otherwise, was entirely futile, as should have been plain to the appellant’s advisers at the point when they requested the sheriff to state a case.  This is not satisfactory.