Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 30

XA131/15

Lady Paton

Lord Drummond Young

Lord McGhie

OPINION OF THE COURT

delivered by LADY PATON

in the appeal

by

DR O and MR O

Appellants;

against

CITY OF EDINBURGH COUNCIL

Respondents:

Appellants:  Parties

Respondents:  J Scott QC; City of Edinburgh Council

4 May 2016

Appeal against a permanence order

[1]        This appeal concerns a boy M, born on 7 March 2005.  He currently lives in Scotland with long-term foster carers, Mr and Mrs D.  He attends a Scottish primary school.  Reports indicate that he is happy and making good progress.

[2]        The appellants are M’s natural parents.  They are Nigerian, of Yoruba descent.  They live and work in Birmingham.   M’s natural mother Dr O is the first appellant.  M’s natural father Mr O is the second appellant (subject to the appointment of a curator ad litem to Mr O, on which see paragraphs [23] to [24] below),

[3]        In the circumstances outlined in a judgment of Sheriff Sheehan dated 31 August 2015, the appellants have not had contact with M for about four years.  As noted in that judgment, the sheriff heard evidence at a proof in Edinburgh Sheriff Court on 8 and 9 July 2015.  In that proof, the City of Edinburgh Council (the respondents) sought a permanence order in relation to M.  For all the reasons given in the judgment, a permanence order was granted.  The order does not extinguish the appellants’ rights of contact with M.

[4]        The appellants now appeal against the permanence order.

Procedure at the appeal hearing in the Court of Session on 17 February 2016

[5]        Both appellants appeared in person and represented themselves at the appeal hearing on 17 February 2016.  The respondents were represented by Mrs Scott QC.

[6]        Dr O advised the court that she wished her husband, Mr O, to address the court first.  Although a curator has been appointed to Mr O, we invited him to make his submissions.  Mr O stated that his submissions had been prepared on a portable computer:  it would be of assistance if they could be printed and read by the court.  The court adjourned for that purpose.  Printed versions were made available and were lodged as number 85 of process.

[7]        Having read the submissions number 85 of process (hereinafter “submissions”), the court collated those submissions with the documents previously lodged by the appellants (including the appellants’ grounds of appeal date-stamped 16 January 2016;  their answers to form 11 condescendence for petitioner/appellant date-stamped 28 January 2016;  and their post-judgment submissions in respect of the judgment of Sheriff Sheehan date-stamped 5 February 2016).  The court then reconvened and advised parties that the court now had full written arguments from both the appellants and the respondents.  Accordingly unless there was a wish to add to, clarify or emphasise any matter, the court would deal with the appeal “on paper”.  That was accepted by both appellants and respondents.

Grounds of appeal

Jurisdiction

[8]        The appellants contend that Edinburgh Sheriff Court had no jurisdiction to grant the permanence order:  submissions paragraph (3) et seq and (10) et seq.  Neither Dr O nor Mr O nor the child was habitually resident in Edinburgh.  The false allegations concerning Mr O were said to have occurred in Birmingham and Nigeria.  The child had been illegally abducted and detained in Edinburgh.  Edinburgh Sheriff Court was not “the appropriate court” in terms of section 80 of the Adoption and Children (Scotland) Act 2007.  Reference was made to section 11(1A) of the Children (Scotland) Act 1995, and to Council Regulation (EC) no 1347/2000.  The permanence order was accordingly unlawful and ultra vires.

[9]        The respondents for their part submit that Edinburgh Sheriff Court was the appropriate court.  The court’s jurisdiction was based on M’s presence in the sheriffdom in terms of section 118 of the 2007 Act.  The appellants referred to section 11(1A) of the Children (Scotland) Act 1995, but that subsection had been repealed with effect from 1 March 2005 by the European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005/42 (SSI) regulation 9.  Similarly Council Regulation (EC) 1347/2000 had been repealed by Council Regulation (EC) 2201/2003.  In any event, the current regulation was not relevant as there was no question of M being habitually resident in another member state of the EU (cf article by Professor G Maher, 2007 SLT 117).  Finally, the counsel who then acted for the appellants had raised the issue of jurisdiction.  A debate on the matter was arranged for 2 June 2014:  on that day, counsel conceded that Edinburgh Sheriff Court did in fact have jurisdiction. 

[10]      For all the reasons advanced by the respondents, we are not persuaded that there is any merit in the ground of appeal relating to jurisdiction.

Competence

[11]      The appellants contend that the permanence order is incompetent.  There was a proof in Edinburgh Sheriff Court on 19 June 2012 concerning grounds of referral, but no grounds were competently established (submissions paragraph (5), and “Evidence” section below).  As for the proof in July 2015, the sheriff failed to apply the relevant statutory tests. In particular, the test in section 84(5)(c) of the 2007 Act was not satisfied:  submissions paragraph (12).  Reference was made to section 98 of the 2007 Act.

[12]      The respondents for their part explain that they became involved in January 2012 when Mr O, who had travelled to Edinburgh with M, made multiple telephone calls to the police.  Mr O told the police that he and M were being followed, were at risk, and that they required police help (appeal print page 38D).  There were concerns for Mr O’s mental health.  He was admitted for a short period to the Royal Edinburgh Hospital.  Meantime M was accommodated under section 25 of the Children (Scotland) Act 1995, and was placed with foster carers.  On 20 January 2012 a child protection order was pronounced.  M was referred to a children’s hearing.  He remained with the foster carers.  On 19 June 2012, grounds of referral were established in Edinburgh Sheriff Court, based on statements of fact (held proved after evidence) which included the following:  “Mr O has mental health problems, which [have] affected his ability to provide a stable home for M.  Mr O was detained in the Royal Edinburgh Hospital for five days.  He was described as delusional and persecutory with elements of paranoid psychosis.  Mr O does not accept that he has problems with his mental health and refused an offer of medication.  Mrs O does not accept that there are any problems with Mr O’s mental health and would not protect M from future risk.  Mr O has repeatedly assaulted M on his head, bottom and back in Nigeria and Birmingham.  M is frightened of his father and has stated that he does not want to return to Birmingham.  He has expressed a wish to remain with his current carers.  The assaults of M as described above amount to wilful ill treatment by Mr O in a manner likely to cause M unnecessary suffering”:  appeal print page 73A-C.  The court found that it was likely that M would suffer unnecessarily or be impaired seriously in his health or development due to a lack of parental care, and further that M was a child in respect of whom an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed (section 52(2)(c) and (d) of the Children (Scotland) Act 1995):  appeal print pages 7D and 28C-D. Following upon the establishment of the grounds of referral, the appellants appealed to the sheriff principal.  The appeal was refused on 18 December 2012.  Thereafter M remained with the foster carers in accordance with decisions of the children’s hearing.

[13]      It is clear from the sheriff’s judgment dated 31 August 2015 that, following the proof in July 2015, the sheriff accepted certain evidence concerning Mr O’s mental health and capacity to care for M, and his ill-treatment of M (inter alia findings-in-fact 8 et seq).  The sheriff also referred to the finding that Dr O “does not accept that there are any problems with Mr O’s mental health and would not protect M from future risk” (finding-in-fact (23)).  Further the sheriff concluded that, by July 2015, M had no relationship with the appellants:  appeal print page 75A-B. 

[14]      On the basis of the evidence which she accepted, the sheriff addressed the threshold test in section 84(5)(c) of the 2007 Act and found that it was satisfied.

[15]      The sheriff further examined the remaining factors set out in section 84, and concluded that M wished to remain with his foster carers:  section 84(5)(a) and (b(i);  that the social workers and foster carers would endeavour to bring him up with sensitivity to his racial and cultural background:  section 84(5)(b)(ii);  that the likely effect of the permanence order would be to provide security and stability for M:  section 84(5)(b)(iii);  that as a result M’s welfare would be safeguarded and promoted throughout his childhood:  section 84(4);  and that it was better to make an order than not to make one:  section 84(3).  Certain provisions relating to contact were attached to the order:  section 82(1)(e). 

[16]      In our opinion, it is clear from the judgment of 31 August 2015 that the sheriff applied the correct statutory provisions.  Having accepted certain evidence, she applied the relevant criteria and tests in terms of section 84 of the 2007 Act.  We therefore consider that the permanence order was competently pronounced in terms of section 80 of that Act.

[17]      The appellants have referred to section 98 of the 2007 Act.  That section is not relevant to the present proceedings, as this is an appeal against the sheriff’s decision to grant a permanence order (and not an application to revoke a permanence order on the basis of a material change of circumstances). 

[18]      In the result, we have not been persuaded that any criticism can be made of the competence of the procedure leading to the granting of the permanence order, or of the competence of the permanence order itself.

Evidence

[19]      The appellants contend that the sheriff went “plainly wrong” when she granted the permanence order on 31 August 2015:  submissions paragraphs (1) et seq, and (9).  While accepting that there were restrictions on an appeal court, the sheriff’s decision could not reasonably be explained or justified (Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203, paragraphs 62, 66 and 67).  The circumstances of the abduction of the child had never been investigated by Edinburgh social workers (grounds of appeal paragraph (6);  submissions paragraph (4).  Social workers who knew practically nothing about the child had “cobbled together some fables called ‘Statements of facts’ and ‘Grounds for making application’”:  grounds of appeal paragraph (6);  submissions paragraph (4).  It defied common sense that those tales and fables were accepted:  paragraphs (6) and (4).  It was the appellants’ contention that no grounds had been established on 19 June 2012, for all the reasons set out inter alia in the submissions paragraphs (5), (13), and (15).  In particular, there was no evidence that the child was exposed to harm or danger.  There was no finding of imminent danger or physical or emotional injury.  There was no independent documentary evidence to support any form of maltreatment, neglect, abandonment or suffering:  submissions paragraph (13).  Medical referrals were believed to be forgeries: submissions paragraph (14).  Experts had not given evidence in court: submissions paragraph (14).  An appeal to the sheriff principal had been unsatisfactory: submissions paragraphs (6) to (8).  The illegal abduction of a child was not in the child’s best interests, and was a violation of articles 3, 9 and 10 of the United Nations Convention on the Rights of the Child, and a breach of articles 6, 8, and 12 of the European Convention on Human rights. The appellants had been denied contact with M for a period of four years after the child had been abducted by the respondents:  submissions paragraph (16).

[20]      In reply, the respondents submit that the sheriff heard all the evidence.  Under reference to Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, paragraphs [16] to [17] the sheriff was entitled, on the evidence, to reach the conclusions she had.  The respondents had made attempts to bring about supervised contact, but there had been little co-operation.

[21]      We have carefully considered the sheriff’s findings-in-fact, findings-in-fact-and-law, and her note, all as set out in her judgment of 31 August 2015.  We have been unable to detect any part of her judgment where her assessment of the evidence or her conclusions could be categorised as plainly wrong, or as not reasonably justifiable or explicable.  In our opinion, on the basis of the evidence which was accepted, the sheriff was entitled to reach the conclusions she did.

[22]      In the result, we have found no merit in the criticisms made of the sheriff’s assessment of the evidence.

Appointment of a curator ad litem to Mr O

[23]      On 9 December 2014 (appeal print page 27E), Mr Docwra, solicitor, was appointed as curator ad litem to Mr O in the circumstances outlined in the sheriff’s contemporaneous note (appeal print page 28), and in her judgment dated 31 August 2015, in particular findings-in-fact (8) to (13) and paragraphs [4] to [5] and [11] of her note. 

[24]      While Dr O raises questions concerning the appointment of Mr Docwra (submissions paragraph (19) et seq), no form of review or appeal was taken in respect of that appointment.  Nor did the curator lodge a minute seeking his discharge.  The present appeal relates to the granting of a permanence order, and is not an appeal concerning the appointment of a curator ad litem. 

[25]      We note that, at court hearings following on 9 December 2014, Mr O’s wife Dr O was able to present submissions.  Her opposition to the permanence order (which may have reflected her husband’s personal stance) was clearly put to the sheriff.  Thus insofar as Dr O’s and Mr O’s interests relating to M coincided, the necessary arguments were put.

[26]      Furthermore, at the appeal hearing on 17 February 2016, Mr O was permitted to present his own submissions, both oral and written, to the court.

[27]      In the result, we are not persuaded that the issue of the appointment of the curator ad litem constitutes a valid ground for granting the present appeal.

Conclusions and decision

[28]      For the reasons given above, we refuse the appeal.