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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JLM, STATED CASE BY JLM AGAINST SCOTTISH CHILDREN'S REPORTER ADMINISTRATION [2019] ScotCS CSIH_37 (11 July 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_37.html
Cite as: [2019] ScotCS CSIH_37, 2019 SC 600, 2020 SCLR 349, 2019 Fam LR 108, [2019] CSIH 37, 2019 GWD 23-353
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Menzies
Lord Drummond Young
[2019] CSIH 37
XA14/19 and XA15/19
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Stated Cases
by
JLM
Appellant
against
SCOTTISH CHILDREN’S REPORTER ADMINISTRATION
Respondent
Appellant: JM Scott QC, Aitken; TC Young (for Hunter and Robertson, Paisley)
Respondent: Brabender QC, J Guy (sol adv); Anderson Strathern LLP
11 July 2019
Introduction
[1] These are two appeals by stated case against the sheriff’s refusal of appeals by a
mother against Children’s Hearing’s decisions to continue and vary Compulsory
Supervision Orders which had the effect of reducing her level of contact with her daughter T
(aged 8) and her son C (aged 7).
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[2] There are six questions in the stated case, although a seventh, which queried whether
the applicable legislation was compatible with Article 8 of the European Convention, was
proposed in an adjustment but not ultimately argued. The remaining questions address: the
implications of founding upon evidence of statements admittedly made by T and C to one of
their foster carers and their social worker (questions 1-3); the facts identified by the sheriff as
forming the basis of the Children’s Hearing decisions (question 4); whether, in reviewing a
CSO, the Hearing can only rely on facts which are either admitted or proved (question 5);
and whether evidence ought to have been heard in the appeal to the sheriff (question 6).
Child protection history
[3] According to the report, which was compiled by the allocated social worker, namely
Michelle Fair, the appellant and her husband, namely HS, had unsettled childhoods before
they met in homeless accommodation in 2009. In 2010, the local Special Needs in Pregnancy
Service raised concerns about the appellant when she was pregnant with T. Offers of
support were made but, after T’s birth, the couple’s engagement with this support became
“sporadic”. There were concerns over T’s health needs (eg immunisation). On one occasion
it was discovered that the family home was full of intoxicated young men and the couple
were unable to explain where T was. Home visits highlighted poor conditions, with T’s
bedding being dirty and unhygienic. After C was born, the police contacted social services
because both children were in the care of MK, whose brother EK was present. He was a
registered sex offender. Reports of domestic abuse were made, but not pursued. The couple
separated in mid 2012. The appellant was thought to be associating with EK, but she denied
this.
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[4] A Child Protection Report was compiled, partly because of the appellant’s “poor life
choices, risk taking behaviour and the couple’s strained relationship”. T and C were placed
on the Child Protection Register. At this time, the children were living with HS. Because
the appellant was “presenting under the influence of substances”, all contact between her
and the children was being supervised. Concerns about T arriving at nursery with a full
nappy and smelling of urine were raised. There was a significant delay in C’s motor skills
development, possibly due to inactivity and lack of appropriate stimulation. An injury to
T’s leg, while she was in HS’s care, was attributed to “poor levels of supervision”. The
parents were not abiding by the child protection plan. The appellant had acquired a
conviction for shoplifting and HS had one for possession of cannabis. Because of the risks of
harm to both children, they were placed in foster care. Matters improved and the children
returned to the care of HS in November 2012. Contact between the appellant and the
children was to continue to be supervised. In February 2013 the children’s names were
removed from the Register. The appellant returned to the family home. By April 2014 there
were no immediate concerns about the couple’s relationship. The case was closed, although
support was to continue to be offered.
[5] On 19 November 2015, the police searched the family home, following information
from the police in New Zealand that indecent images of children were being sent from HS’s
phone. HS and the appellant were both detained and charged with possession of the
images. These included category B and C images of T. In some of these photographs, HS’s
genitals were exposed in the proximity of T’s vagina.
[6] HS alone was prosecuted. He was released on bail with a condition that he would
have no contact with the children. T and C were placed with their maternal great-
grandparents. The grandparents were unable to cope as a result of their own health
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difficulties and their concerns about being able to deal with the children’s behaviour. On
24 December 2015, Ms Fair supervised contact between T and the appellant, but this was
ended when T became “extremely upset”. The appellant agreed that there would be no
further contact pending assessment. The children were placed with foster carers, namely Mr
and Mrs H, in February 2016.
[7] On 19 May 2016, the Children’s Hearing made T and C subject to an interim
Compulsory Supervision Order. At this Hearing, HS and the appellant had denied the
grounds of referral. The grounds were sent for proof before the sheriff. There was no order
made concerning contact by the appellant with T. On 8 and 29 June 2016, the interim CSO
was continued. The appellant had requested unsupervised contact once every week. This
was discussed “at great length”, but rejected in favour of contact at the discretion of the
social work department, to be assessed in accordance with T’s needs.
[8] Over the next few months, 3 disclosures by T were recorded as having been made to
the foster carer, Mrs H, or the social worker, Ms Fair. The first was on 19 September 2016,
when T said that the appellant had been “there” when HS had touched her private parts.
The second was on 3 October 2016, when she said that HS had touched her private parts
with a “hard flower and it was really sore”. The appellant had been “there”. The third was
on 9 November 2016, when, at dinner, T had said that HS was pretending that a cucumber
was his “willy”.
The appellant and C had been there.
The appellant had asked HS to stop or she would call the police. This account was repeated
to Ms Fair, when T also described HS
[9] The grounds of referral were eventually accepted by the appellant, who gave
evidence before the sheriff. The grounds were held established on 13 December 2016. They
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included multiple instances of sexual abuse of T by HS, involving the taking of indecent
photographs of T, HS using his mobile phone to view indecent images of other children, all
during T’s and C’s residence with HS and the appellant (see details of the conviction, infra).
The sheriff set the contact between the children and the appellant at once every 3 weeks, for
2 hours. The grounds had not alleged that the appellant had been present during T’s sexual
abuse by HS.
The reduction in contact
[10] An Integrated Assessment Report, dated 28 December 2016, was compiled by
Ms Fair. It contained information regarding the statements, which had been made by T, that
the appellant had been present when HS had abused her. The appellant’s law agent wrote
to the respondents on 12 January 2017, expressing concern. The appellant’s presence during
the abuse was denied. The letter continued:
“The accretion (sic) that my client was present during periods of abuse was a matter
known prior to the Grounds of Referral proceedings (sic) to proof. The assertion did
not form part of the Grounds and as such no evidence was led.”
[11] A Children’s Hearing was scheduled to take place on 30 December 2016. It was
continued to 16 January 2017, because neither HS’s nor the appellant’s law agents were
present. The interim CSO remained in place. Contact with the appellant was to stop
meantime, because it was not in T’s best interests to subject her to contact:
“where she will perhaps be revisiting the trauma of what has already happened to
her of which there is an unassessed risk. [T] continues to make disclosures about
inappropriate activities that took place in the family home and asks questions about
her parents”.
[12] At the hearing on 16 January 2017, the appellant’s solicitor moved that the
proceedings should be stopped. The statements should be discounted or new grounds of
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referral should be raised to enable the facts to be established. The Hearing noted that the
grounds of referral had only related to HS’s behaviour. It decided that:
“within the system panel members have often to consider conflicting information on
the balance of probabilities and that it would be in the best interests of both children
to continue today with a full hearing.”
The outcome of the Hearing was that the children remained under a CSO. There would be
no contact with HS, but that with the appellant would remain at 2 hours every three weeks,
supervised by the Social Work Department. The reason given was that:
“Contact with mum was previously set by The Sheriff to 2 hours every three weeks,
supervised by the SW Department. At this stage it has not been possible to assess the
impact of the contact on [C and T]. The panel were keen to know the professional
view of what would be in the childrens (sic) best interests with regard to contact.
This is still subject to ongoing assessment…”.
[13] An appeal to the sheriff, under section 154 of the Children’s Hearings (Scotland) Act
2011 in respect of this decision of the Children’s Hearing on 16 January 2017, was taken on
the grounds that the hearing had not been fair. On 7 April, the sheriff at Paisley refused the
appeal. In a stated case, which was not ultimately pursued, the sheriff agreed with Norrie:
Children’s Hearings (2nd ed at 117) “that a Children’s Hearing might make a decision on the
basis of alleged facts which are disputed and never established by proof in a court of law.”
Following M v Authority Reporter 2014 SLT (Sh Ct) 57, a Hearing could have regard to
material beyond the grounds of referral. Disputed facts might form new grounds, but
whether to present these was a matter for the reporter and not the court. The resolution of
disputed fact was less important than identifying a child’s needs. The Hearing was not an
inappropriate forum for the exploration and consideration of disputed fact. A decision of a
Hearing “could be supported even if it had proceeded to determine the veracity of the facts
disputed.” However, a Hearing may be able to make a decision about the welfare of
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children “without having to come to a specific view on all disputed facts” (AM v Locality
Reporter Manager [2015] Fam LR 106, at para [33]). The sheriff found that the Hearing had
not made a determination about the truth of the content of the disclosures. It had not been
necessary to do so. It was enough for the Hearing to have considered that the disclosures
had been made.
[14] At a review on 2 November 2017, the Children’s Hearing had an updated IAR from
Ms Fair. This noted that, following HS’s conviction, the appellant had made comments on
social media which had defended him. She had said that HS had not been capable of
committing the abuse. She had visited him in custody. These matters raised “significant
child care issues” as did the appellant’s attempts to explain what she had said to HS. When
Ms Fair had visited the children in May 2017 to inform them that HS was in prison and to
provide the reasons for this, T had said “my mum did not touch my [private parts] like my
dad did but my mum was there”. She had then asked “why do I see my mum when she did
not keep me safe but I do not see my dad?” The children continued to be re-assured that the
role of their foster carers and the social worker was “to keep them safe”. However, there
were concerns about the “confusion and mixed messages this may be having on the children
if they are taking (sic) to contact with their mum once every 3 weeks after the serious
disclosures [T] has made.” A recommendation to reduce contact to a minimum of 8 weeks,
which would be regularly reviewed, was made. By August 2017 it was thought that there
were grounds for permanence orders. The appellant had moved into homeless
accommodation, but was evasive when asked about her current circumstances.
[15] The IAR concluded that there were significant risks of harm should the children
return to the care of either parent, given the background outlined above, including the
appellant’s and HS’s interdependency. Concerns were expressed about whether contact
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was having a “detrimental impact” on the children’s emotional well-being. The Children’s
Hearing decided that T and C should continue to live with their foster parents. HS should
have no contact with them. The appellant should have substantially reduced contact; viz. a
minimum of once every eight weeks
[16] The reasons for continuing the CSO included the reference to HS’s offences, which
involved the sexual abuse of T and a finding that the behaviour of T had recently seriously
deteriorated. She was prone to regular outbursts and had taken to hitting C. She had made
detailed disclosures with regard to the abuse which she had suffered, stating that her
mother and C had been present. She had recently asked why she was still having contact
with her mother. It was specifically noted that:
“Thorugh (sic) her solicitor, mother disputed the factual accuracy of being in
attendance during the episodes of sexual abuse.”
It was recorded that the children had a “long road in front of them in addressing their
complex needs as a result of these incidents”. The Social Work Department emphasised the
serious concerns which they had relative to the appellant’s ability to safeguard and protect
the children appropriately.
[17] The reasons for reducing contact between the appellant and the children were that:
“… there had been a number of missed contacts by mother. Social work advised that
the complex nature of the needs of both children meant in their professional view
there had to be a longer period of no contact with Mother in order to seek to get to
the bottom of the reasons for the children’s behaviour and to address their longer
term needs through ongoing engagement with services.
The panel expressed concerns as to mother’s visits to father in prison and the
ongoing contact with father. Mother had advised on several occasions that the
relationship had ended.
The panel heard that the quality of existing contact with mother was ok, but in social
work’s opinion, is not of any material benefit to the children and is not requested by
the children. After contact, children give a cursory goodbye to mother and show
more attachment to the foster carers.
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… [reduction of] contact with mother for both children to a minimum of once every 8
weeks, managed and supervised by social work … would assist in the more effective
assessment of the children’s complex needs.”
[18] A review in October 2018 saw the level of contact maintained, although there had
been further missed contacts. T had since moved from foster care to a residential school for
children with special needs. Contact between T (but not C) and the appellant had ceased.
On 15 April 2019 a decision to proceed with permanence orders had been made.
The trial and the appellant’s relationship with HS
[19] Meantime, on 10 May 2017, after a trial at the High Court in Glasgow, HS had been
convicted of charges that, between September 2013 and 23 October 2015, he: (1) took and
distributed indecent photographs of children; (2) sexually assaulted T on various occasions;
(3) caused T to participate in sexual activity again on various occasions; and (4) engaged in
sexual activity in the presence of T, once more on various occasions. He was made the
subject of an extended sentence of ten years, with an eight year custodial element (see HDJS
[20] T had not been called as a witness at the trial for reasons outlined in a report by
Dr Gary MacPherson, a consultant forensic clinical psychologist, which had been prepared
when T was aged 6 years and 3 months. This analysed her ability to give evidence and the
possible psychological harm which could be caused to her by doing so. The report observed
that T had refused to speak at a recorded police interview. In her interview with
Dr MacPherson, T had functioned at a far less developed intellectual level, probably being in
the bottom 5-10% of her age group. She had given one-word answers and had not
expressed herself spontaneously. Dr MacPherson sought to assess T’s “episodic memory”
by asking her to recall recent events which were not associated with the offending
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behaviour. She had again given one word answers rather than any narrative of events
which had happened either at home or at school. T had no real understanding of court;
stating only that “court keeps me safe”.
[21] Dr MacPherson could not:
“envisage circumstances where [T] would be in a position to provide a spontaneous
account in relation to the ... allegations … [It was] highly likely that she would ...
struggle to provide any meaningful details.”
He said that, in general terms, young children were prone to change answers and to display
compliance, acquiescence and reticence in response to repeated or leading questions. They
were reluctant to say “I don’t know” and were more suggestible than older children,
adolescents and adults. In view of T’s age and immaturity, he did not recommend any
additional interviews with T. He was:
“concerned over the emotional impact of any disclosures as ... she had been reactive
to previous disclosures and also in view of the nature and severity of the alleged
behaviours.”
Dr MacPherson’s report formed the basis of the agreement between the parties that T would
not be called as a witness in the appeal to the sheriff (infra).
[22] When the appellant was interviewed under caution after the search of the family
home in November 2015, she had been given detailed and explicit information about the
indecent photographs of T which had been found on HS’s mobile. On 21 January 2016 the
appellant and HS had attended Renfrew Social Work Department together to collect social
work reports. On 9 March 2017, at the preliminary hearing in the proceedings against HS,
the appellant had left the same vehicle as HS and walked up the street with him to
Edinburgh High Court. In May 2017, during HS’s trial, the appellant had to be detained and
remanded in custody for two days for failing to obtemper her witness citation. The trial had
to be adjourned as a result. HS had phoned the appellant from prison on 40 occasions
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between 15 June and 7 November 2017, two of which lasted 33 minutes and 24 minutes. The
appellant had visited HS in HMP Barlinnie on 31 May 2017.
The proof before the sheriff
[23] The appellant appealed the Children’s Hearing decision of 2 November 2017. The
sheriff heard submissions on 7 December 2017 and 10 January 2018. It had been submitted
on behalf of the appellant that the Hearing’s decision had been predicated on the appellant
having been present during the abuse of T by HS and maintaining her relationship with
him. The sheriff stated that the reasons for the decision:
“(insofar as they affected the Appellant) were that ‘[T] had made detailed disclosures
with regard to the abuse that she had suffered, stating that her mother (the
Appellant) and [C] had been present during the episodes’. It was also stated ‘The
Panel expressed concerns as to mother’s visits to father in prison and the ongoing
contact with father. Mother had advised on several occasions that the relationship
had ended’.”
The sheriff accepted that there was a “golden rule” that the prediction of future harm had to
be based on facts which had been proved on a balance of probabilities (Re J (Children) (Care
Proceedings: Threshold Criteria [2013] 1 AC 680 at para 84). On this basis the sheriff decided
that the appeal could not be determined without hearing evidence in terms of subsections
155(4) and (5) of the Children’s Hearings (Scotland) Act 2011. Case management hearings
took place on 16 February, 15 March and 10 May 2018.
[24] At the 15 March 2018 hearing, there was a discussion between the sheriff, the
reporter, the appellant’s counsel and HS’s law agent about whether it was appropriate for T
to give evidence. The reporter did not intend to call T. She planned to rely on the testimony
of the adults, namely Mrs H and Ms Fair, about the disclosures made to them by T. In view
of Dr MacPherson’s report, the contents of which had been agreed by joint minute, the
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appellant’s counsel agreed that T should not be a witness. Under reference to Article 6 of
on hearsay evidence would nevertheless require that the fairness of the proceedings be
assessed at the end of the proof. The sheriff commented that:
“From a moral standpoint, there can be no criticism made of the decision not to call
[T] … She has clearly suffered a great deal and still displays major behavioural
difficulties.”
[25] The sheriff heard testimony from Mrs H, Ms Fair and the appellant over a period of
3 days. At the end of that process, he issued an interlocutor dated 23 July 2018 determining
that the decision of the Children’s Hearing of 2 November 2017 had been justified and
refusing the appeal. In his Note appended to the interlocutor, the sheriff stated that he
found in fact that, during T’s residence with Mrs H, T had made various disclosures about
the sexual abuse that she had suffered at the instance of HS. She had given details about
those whom she “claimed” had been present during it. The appellant did not dispute that T
had made the disclosures, but had challenged the truth of T’s statements that the appellant
had been present during the abuse. Thereafter, the sheriff recorded the details of an
extensive joint minute which agreed a number of matters, most of which had already been
documented elsewhere, notably in Ms Fair’s reports.
[26] The sheriff then stated that he found “the following additional facts admitted or
proved”. What follows is a narration not of fact but of the testimony of not only Mrs H and
Ms Fair but also the appellant. At the end of this exercise the sheriff did find that:
“80 The Appellant was present on occasions when [T] was being abused by [HS].
81 On at least one occasion [C] was present when [T] was abused by [HS].
82 The Appellant maintained a relationship with [HS] after he was convicted by
visiting him in prison on one occasion and by telephone communication on many
occasions until shortly after the Children’s Hearing of 2nd November 2017.”
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It is clear from this that the sheriff rejected the appellant’s evidence about never being
present during the abuse. He rejected her proffered reasons for continued contact with HS.
The sheriff must have accepted the testimony of Mrs H and Ms Fair which is summarised as
follows:
Mrs H
[27] Mrs H said that it was her practice to note at the time, or as soon as possible
thereafter, anything of significance said to her by a child in her care. Her notes disclosed
that T had been off school sick on 1 June 2016. After she had gone to bed at 6pm, T had had
a disturbed night. Mrs H had, as recorded by the sheriff, heard her say:
“
Mum,
Mum, please
NO, NO, NO, NO
This is really ridiculous
I just can’ help mum,
mum, mum
Please help me, mum
Mum
- Oh no, no please don’t
- No, no
- I want mum
- I can’t even do it
- No,
- No, no awoh
-
- I can’t
No, mummy, mum
NO
Mum
please, please, please”.
at 8.45 pm
at 9.30 pm
It is not clear what the sheriff made of this.
[28] On 9 November, Mrs H, her husband and their three children (aged 20, 18 and 15), T
and C had been having an evening meal together. This included cucumber. T spoke of HS
pretending that a cucumber was a “willy” and putting it between her legs when he had no
clothes on. When alone with Mrs H after dinner, T had told her that, during this episode,
She had asked him to stop but he had not. He had
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eaten the cucumber. T said that the appellant had been present during this. The appellant
had asked HS to stop or she would phone the police. T asked Mrs H to record the
conversation in her diary so that Mrs H could tell Ms Fair about it.
[29] On 2 December 2016, T had not been in a good mood after school. She had hit out at
C and Mrs H’s eldest child. On 3 December, T had again spoken about HS and the
cucumber. HS had put the cucumber near her private parts when C and the appellant had
been present. On 19 January 2017, Mrs H had been driving T and C past Kilmarnock Sheriff
Court. T had said to Mrs H that the court was where people, who had done bad things,
went. She had asked if HS would go there. Mrs H had answered in the affirmative. C told
Mrs H that this was because HS had thrown a television at T and C. T had said that it was
because HS had touched “our private parts”, but C had said “not me; it was just [T]”. Later
that day, when she was visiting, Ms Fair had asked T if anyone had touched her private
parts. T had said “my dad”. Mrs H asked her to repeat that. T added that HS had told her
that it was a treat. The appellant had been there at the time, and had told HS to go outside
for a “time out”.
[30] In January 2018, T had asked Mrs H why the appellant had not kept her safe. In the
following month she had asked Ms Fair why the appellant had not done something when
HS had been abusing her. Around this time, T’s behaviour had continued to be a concern.
She had been shouting, screaming and hitting out on a daily basis. She was regularly
commenting on her past experiences. During one violent episode, Mrs H had taken T out
for a walk. T referred to there being “not nice” photographs on the appellant’s phone;
photos of “when my dad was hurting me”.
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Ms Fair
[31] Ms Fair had become involved with T and C after their parents had been charged with
possession of indecent images. She had met the parents on numerous occasions. They had
told her that their relationship had ended. This did not appear to be correct. In the first
supervised contact between the appellant and T, T had tried to take her clothes off and had
displayed sexualised behaviour. Ms Fair had been in Mrs H’s home in May 2016. She had
asked T if something bad had happened to her. T had said “Yes. When I was with my mum
and dad”. She had said that “something scary had happened”. In August 2016, T had
referred to her private parts being sore “for ages” before she had gone to live with her foster
carers. In October 2016, T had told Ms Fair that HS had told her that she was being given “a
treat”. He had touched her private parts with a “hard flower” and it was “really sore”. The
appellant had been there. In November 2016, T had told Ms Fair that on one occasion HS
had been naked and had pretended that a cucumber was his private member. The appellant
and C had been present. She had said later that HS had
[32] After HS’s conviction, the appellant had defended HS in her comments on Facebook.
She claimed that he was not capable of sexually abusing T. In May 2017, when Ms Fair took
the children to the park, T had said “My mum did not touch my private parts like my dad
but my mum was there”. She questioned why she saw the appellant when “she could not
keep me safe”.
[33] The perception of both Mrs H and Ms Fair was that, when the children were taken
away from their parents, they were presenting with concerning sexualised behaviour. T was
often trying to take her clothes off, trying to sit next to adults and lifting up her skirt. C was
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asking to see T’s private parts and trying to put his finger in her bottom. T’s behaviour was
that of a very traumatised child.
The sheriff’s reasoning
[34] The sheriff considered the three step approach to hearsay in Al-Khawaja v United
Kingdom (2012) 54 EHRR 23. On the first step, there had been a good reason for the non-
attendance of T and thus to admit evidence of her statements. On the second, the sheriff did
not consider that the statements of T were the sole or decisive basis for the determination of
the facts. The spontaneous context of the statements had been explained. Looking at the
counterbalancing factors on the third step, the hearing as a whole had been fair. Although,
when dealing with untested hearsay, the sheriff accepted that he had to “proceed with
caution” and give the statements less weight than if they had been made in court and the
maker had been cross-examined, he was able to take into account the spontaneity of the
statements and the general sexualised and other behaviour. The most important factor was
the fact that it had been accepted that T had made all the statements. The only part of any
statement which had not been accepted as being true was that describing the appellant’s
presence at the time of the abuse. If the appellant accepted that the rest of the statements
were true, it “seems extraordinary” that T would add another detail, that the appellant had
been present, if that were not also true. The sheriff held that the statements showed “a clear
consistency in what [T] said”. He was satisfied on the balance of probabilities that the
appellant had been present on occasions when HS had abused T.
[35] The basis for the sheriff’s finding on the appellant’s continuing relationship with HS
had regard to the evidence of the Facebook comments, the appellant continuing to be in the
company of HS prior to sentence, and the prison visits and phone calls. This was all after
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she had been given detailed information on the indecent images of T on HS’s phone. It
persisted up to the date of the Children’s Hearing on 2 November 2017.
[36] The sheriff posed the following three questions:
“1. Did I act in a way which was incompatible with the Appellant’s Article 6
ECHR rights, and thus unlawfully, in relying upon the untested hearsay evidence of
statements made by [T] when coming to the conclusion that the Appellant was
present on occasions when [T] was abused by [HS]?
2. In the event that I did act unlawfully …, did I err by finding the decision of
the Children’s Hearing’s of 2 November 2017 was justified?
3. Having agreed that [T] should not be called as a witness in the Appeal
Hearing under section 154 of the 2011 Act, is the Appellant entitled to challenge my
decision to rely on the hearsay evidence of statements made by [T]?”
In addition the court required the sheriff to include three more questions.
“4. Did I err in determining that the decision of the Children’s Hearing of
2 November 2017 was predicated on (1) the fact that the Appellant had been present
during the abuse of [T] by her father (or that she was aware that it was occurring and
did nothing to stop it); and (2) that the Appellant was maintaining her relationship
with [HS]?
5. Did I err in finding that the Children’s Hearing of 2 November 2017, in
reviewing a Compulsory Supervision Order and the measures included thereon,
could only rely on facts admitted or proved on the balance of probabilities?
6. Did I err in finding that the Appeal before me could not be determined
without my hearing evidence?”
Submissions
Appellant
[37] The appellant maintained that the Children’s Hearing had proceeded on the basis
that the content of T’s disclosures had been true. It had accepted the material contained in
Hearing’s decision was justified depended on whether the content of the disclosures was
true. A “stricter scrutiny” was required in respect of limitations on a parent’s contact with a
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normally be regarded as a temporary measure; the ultimate aim being to reunite parent and
child (ibid para 122).
[38] The Children’s Hearing had not been fair. It was unlawful for a Children’s Hearing
to make a decision about a CSO that was materially dependent upon unsubstantiated
referrals were civil proceedings to which Article 6 applied. The reporter and the court were
public authorities and required to act compatibly with Convention rights. The three-steps in
unreported, Sheriff Holligan, 16 February 2018). The sheriff’s approach to Al-Khawaja was
flawed. It had been for the reporter to present a justification for the use of hearsay. The
sheriff was confused about the second step. There was no other evidence about the
allegation concerning the appellant’s presence. The child’s statements were the only basis
for determining the facts in issue. They were chance remarks. The circumstances to which
they applied were unknown. There was no supporting circumstantial evidence.
[39] On the third step, the sheriff’s approach, to the appellant’s acceptance that the child
had made the statements, was illogical. The appellant had not been in a position to dispute
that the statements had been made. A proper consideration of the third step should have
involved taking account of the absence of corroboration and the lack of any opportunity for
the child to be precognosced. The child’s reliability in light of her lack of maturity should
have been considered. There were ambiguities in what the child was saying and scope for
misunderstanding. It was not known, when she said that the appellant had been there,
whether she meant in the house or the same room. The child had struggled to describe
events and used language which did not permit a confident understanding of what was
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being said. Some of the language reported was of a type which a child was not likely to
have used. There were discrepancies between the reports of Mrs H and Ms Fair. Some of
the things that the child had said were clearly not true.
[40] On the unsubstantiated nature of the allegations, the sheriff was correct in
determining that the decision of the Children’s Hearing was based upon the appellant
having been present during the abuse of T and the appellant maintaining a relationship with
HS. At the time of the hearing on 2 November 2017, there were agreed grounds of referral,
which had made no mention of the appellant’s involvement in the offences. The report from
Ms Fair, which had recommended a reduction in contact as a result of the child’s
disclosures, had not been translated into findings-of-fact by the Hearing. It had not made
any determination on the truthfulness of the statements. It had assumed them to be true.
There was a distinction between proceeding on the basis of reasonable grounds for
suspicion, which would justify a Child Protection Order, and being satisfied of the necessity
been a need therefore for the court to hear evidence (cf O v Rae 1993 SLT 570; C v Kennedy
1987 SLT 737). There was now express provision (2011 Act, s 155(5)(f)) for the sheriff to hear
evidence. Where there were disputed facts, fairness would generally require an oral hearing
[2018] ACD 34). The appeal should be remitted to a different sheriff to hear the proof anew.
Respondent
[41] The questions in the appeal raised issues which struck at the heart of the Children’s
Hearing system and the extent to which it was able to fulfil its statutory purpose of
promoting the welfare of children. The appellant’s argument was a root and branch attack
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on a system which was inherently fair. The sheriff could, but need not, hear evidence before
determining the appeal. In terms of section 156 of the 2011 Act, the sheriff’s task was to
determine whether the decision of the Children’s Hearing had been justified. This was a
was not a general review of the decisions of fact made by the sheriff.
[42] The reasons of the Children’s Hearing had to be read as a whole (JM v Taylor 2015 SC
71). The decisions related to the children and not to the appellant. The Hearing could only
vary or continue a CSO if it was satisfied that it was necessary to do so for the protection,
guidance, treatment or control of the child. The decision focused on the welfare of the child.
The decisions had not been predicated on the fact that the appellant had been present
during the abuse of T and that the appellant was maintaining a relationship with HS. In so
far as the sheriff considered that he was concerned only with the truth of the disclosures, he
was in error. There were six paragraphs of reasons. The reasons specifically in relation to
the reduction in contact were broader than those narrated by the sheriff. There were four
paragraphs, including references to a number of missed contacts by the appellant, the
complex nature of the children’s needs and the view that the children needed a longer
period of no contact.
[43] The Children’s Hearing was a decision-making body which considered all available
information regarding a child’s welfare. The functions of the sheriff and the Children’s
Hearing were different. The sheriff was required to determine whether any ground was
established on the balance of probabilities as a threshold test. The sheriff acted as the
gatekeeper. In contrast, the Hearing was a lay panel, whose task was to make decisions
about the practical arrangements for the care of the child. It did not normally determine
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para 33). It made decisions on the welfare of children once the grounds of referral had been
established by the sheriff on the basis of the “golden rule”.
[44] The making of a CSO was not a permanent intervention in the legal relationship
between parent and child. It was a temporary one with a maximum duration of one year.
The establishment of grounds of referral did not necessarily lead to a CSO. In reviewing a
CSO, a Hearing was not restricted to relying on facts admitted or proved on the balance of
probabilities. It could make decisions based on reports or submissions. It was entitled to
take into account all of the relevant material before it. There was plenty of material before
the Hearing to enable it to make an assessment of need, having regard to the nature of the
information available, including disputed fact. The Hearing had recorded and considered
that the appellant disputed that she had been present during the abuse.
[45] There was no necessity for the sheriff to hear evidence to enable him to be satisfied
on whether the decision was justified. The reasons for the Children’s Hearing’s decision
disclosed that the children needed protection, guidance, treatment or control as a result of
the abuse suffered by T. The Hearing did not rely on knowing whether or not the appellant
had been present during the abuse. There was sufficient other information to justify the
decision. The sheriff had failed to consider that the reasons, when viewed as a whole,
clearly justified the continuation of the CSO. There were circumstances in which the appeal
mechanism could result in the hearing of evidence and/or the sheriff requiring a report.
That was a safeguard built into the system.
[46] The application of the Al-Khawaja test should ordinarily result in hearsay statements
of children being capable of being relied upon. The facts in these appeals were materially
view that there was good reason for direct evidence of the child not being led. The
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appellant’s approach would result in the most vulnerable children being left unprotected by
a system whose very purpose was to safeguard them. When proper regard was had to the
nature of the proceedings and the rights of the children, hearsay evidence ought ordinarily
to be relied upon. The first step in Al-Khawaja was met in such circumstances. The rights of
the parents should not be given a higher status than the rights of the child. The sheriff still
required to decide whether the evidence was sole or decisive and what counterbalancing
measure might exist. It was clear from Al-Khawaja that the existence of corroborative
evidence was a significant factor. The sheriff had correctly concluded that he was entitled to
rely on the hearsay of T. Another counterbalancing factor was that the appellant was able to
give evidence in relation to the matters that were in dispute. She was able to examine the
persons to whom T had made the statements in order to ascertain the circumstances.
Decision
Question 4 – Did the sheriff err in determining that the Children’s Hearing’s decision had
been predicated on the truth of the disclosures etc?
[47] It is convenient first to address questions 4 to 6. The sheriff’s phrasing of Question 4
presupposes that he did determine that the Children’s Hearing’s decision was that the
appellant had been present during the abuse and had maintained a relationship with HS.
That is not what the sheriff said about the reasons “(insofar as they affected the Appellant)”
(supra). He correctly recorded both in the stated case and (twice) in his incorporated note
that the reasoning was that T had made detailed disclosures and that the Hearing was
concerned about “ongoing conduct” with HS. That is to a degree accurate, but the
description in the question that the Hearing had decided that the appellant had been present
during the abuse, and that this was a decisive factor in the decision making process, is
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inaccurate. As Sheriff Spy had also held in relation to the previous decision in the appeal
from the Hearing of 16 January 2017, the Hearing had made no finding in relation to the
truth of what T had “disclosed”. This question falls to be answered in the affirmative.
[48] The Children’s Hearing’s reasoning for the decision of 2 November 2017 is quite
clear from the written material. It is relatively detailed and goes far beyond any
consideration of the appellant’s conduct; focusing instead upon T and C and whether they
required continuing measures of compulsory care. In relation to T, the established grounds
for referral had included HS’s sexual abuse of T and her deteriorating behaviour. The fact
that she had made the disclosures about the appellant’s presence was noted in the
reasoning, but it was specifically recorded that the appellant had denied this.
para [33]):
“… decision making by a children’s hearing is done in the context of a system which
has been considered by this court and found to be compliant with the [European
Convention on Human Rights]. The focus of a hearing is on the practical
arrangements for the care of the children. A hearing may have to make a decision on
disputed questions of fact. But it may well be able to make a proper decision about
the welfare of the children without having to come to a specific view on all disputed
facts… [A] hearing need not determine any issues unless they consider it essential to
do so to allow them to make their decision about the best interests of the children”.
In this case, it was sufficient to take account of the fact that T had said certain things about
her mother, which may or may not have been true. That is what the Children’s Hearing did.
They were fully entitled to do so in the context of grounds of referral having been
established and the decision for the Hearing being focused on the practical arrangements for
the care of the children.
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Question 5 - Did the sheriff err in finding that the Children’s Hearing had been entitled to
rely only on facts admitted or proved on the balance of probability etc?
[50] A determination that a child requires compulsory measures of care is almost
certainly going to involve an interference with the Article 8 rights of the parents and the
child. The route to that determination requires to comply with the procedural safeguards
implicit in Article 8 and expressed in Article 6; both of which apply to the process. The
manner in which these rights are secured is by the system of requiring grounds for referral
to be accepted by the parents (2011 Act, s 91(1)) or determined by the sheriff on a reference
from the reporter (ibid, s 93(2)). The sheriff will normally require to determine disputed fact
in the traditional manner by listening to parole testimony, which may be tested by cross-
court, at para [30]) and assessing the veracity of the critical facts to the appropriate standard
of proof, usually the balance of probabilities (cf the 2011 Act, s 102(3)).
[51] Once the grounds for referral have been accepted or established, it is for the
Children’s Hearing to determine the nature of any Compulsory Supervision Order based
upon its view of what “is necessary… for the protection, guidance, treatment or control of
the child” (ibid, ss 91(3), 108(2)). In making that decision, it is for the Hearing to take into
account all information which is relevant to the issue. Only in rare situations will it be
necessary for the Hearing to listen to testimony. The Hearing involves a panel of lay
persons who are not generally tasked with, or skilled in, the assessment of parole evidence.
The information before the Hearing will be in the form of written reports from the relevant
social worker and others, supplemented with submissions from the reporter and any
relevant person, including a parent, who is entitled to attend and make representations at
what is an oral hearing. The panel may have to resolve disputed fact, but only if it is
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essential to the making of their decision (AM v Locality Reporter Manager (supra)). No doubt,
any fact would have to be accepted as probably having occurred, but there is no need for it
to be proved to that standard on the basis of testimony. The decision can be made on the
basis of the information and any oral argument presented by the reporter and any other
party. It may be reviewed by the sheriff on appeal; in which case the sheriff may hear
testimony (2011 Act, s 155(5)) if that is desirable in order to secure fairness in the overall
process. That is what occurred in this case. The question nevertheless falls to be answered
in the affirmative.
Question 6 – Did the sheriff err in finding that the appeal could not be determined without
hearing evidence?
[52] The sheriff had the decision of the Children’s Hearing and the updated Integrated
Assessment Report before him. The IAR provided the sheriff with a detailed background
report on the children, from before birth. It contained information on the abuse which T, in
particular, but also C, had been subjected to while in the care of the appellant and HS. Both
children had been behaving in a sexualised manner. This background made it clear that the
children required compulsory measures of care in the form of a CSO. Amongst other things,
HS was in prison and the appellant was thought to be in homeless accommodation. In
relation to contact between the appellant and the children, the sheriff’s task was to
determine whether the Hearing’s decision was “justified” (2011 Act, s 156(1)). This is a
supervisory role, which should not involve the sheriff substituting his own views for those
of the Hearing, to whom the task of deciding upon compulsory measures of care has been
statutorily delegated.
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[53] The reasoning on the issue of contact was that it should, on the recommendation of
Ms Fair, be reduced because, amongst other things, “there had to be a longer period of no
contact … in order to get to the bottom of the reasons for the children’s behaviour and to
address their longer term needs”. Some contacts had been missed by the appellant. The
contact which had taken place had not been of benefit to the children. Reduced contact
would “assist in the more effective assessment of the children’s complex needs”. The
question for the sheriff was whether, on the bases stated, reducing (not ending) contact was
justified. In determining that issue, there was no need to hear evidence in the form of the
testimony of the foster carer, the social worker or the appellant. All the information
necessary for the decision was available in the written material supplemented by oral
submission. In particular, it was not necessary to determine the veracity of the disclosures
since that was not something upon which the decision rested. The Hearing had not decided
whether the disclosures were true and there was no need for the sheriff to do so either. This
question also requires to be answered in the affirmative.
[54] As a postscript to this issue, it is worth observing that the right to an oral hearing
which is implied in Article 6 does not necessarily carry with it a right to adduce oral
testimony. The requirement for an oral hearing is primarily to meet the need for
transparency (ie a public hearing) and not because of any perceived advantages in hearing
testimony or testing it by cross-examination, which are commonly thought to exist as a
generality.
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Question 1 – Did the sheriff act incompatibly with the appellant’s Article 6 rights in relying
on the untested hearsay evidence of statements made by T in concluding that the appellant
had been present when T had been abused by HS?
to which Article 6(3)(d) (right to require the attendance of, and to examine or have
examined, witnesses) applied. Although Article 6(3)(d) is not applicable to cases such as the
present one, it is accepted that the three steps in Al-Khawaja (at para 120 et seq and in
Schatschaschwili v Germany (2016) 63 EHRR 14 at paras 100-131) are relevant considerations
to be taken into account when assessing hearsay evidence in this area. This does not involve
the application of a three part test of fairness. The question is whether the appellant has had
a fair hearing. In determining this, the court has to:
“... look at the proceedings as a whole … having regard to the rights of the defence
but also the interest of the public and the victims … and, where necessary, the rights
of witnesses” (Schatschaschwili v Germany (supra) at para 101, cited in JS v Children’s
Reporter (supra), Lord Brodie at para [33]).
[56] It is of particular significance that the hearsay which has been taken into account
relates to the reports of young children. It has long been recognised in Europe that the
admission of such evidence requires special consideration, having regard to the need to
Maclennan v HM Advocate 2016 JC 117, LJC (Carloway), delivering the opinion of the court,
at para [24]). In such cases there is almost always a good reason for not requiring the child to
give “live” evidence in court or at a commission. There may be, as there was in T’s case,
good reason for not re-visiting what the child has said at all. The fact that the defence, or
here the appellant, is not able to ask questions of the child is not, as Al-Khawaja itself
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demonstrates (at para 158), determinative of unfairness, even where the statement relied
upon is decisive and the person making the statement is an adult.
[57] In the case of young children, the notion that there would be some advantage in the
decision making tribunal hearing them recount what had occurred many months, if not
years, previously and subjecting them to cross-examination, has long since been dispelled.
As was said in the Scottish Courts Service’s Evidence and Procedure Review (2015, cited in JS v
Children’s Reporter (supra) at para [28]):
“2.1 It is now widely accepted that taking the evidence of young and vulnerable
witnesses requires special care, and that subjecting them to the traditional
adversarial form of examination and cross-examination is no longer acceptable. This
is for two main reasons. The first is that, as has been known for some time, the
experience of going to court and recounting traumatic events is especially distressing
for children, and can cause long-term damage ...
...
2.3 The second reason is that, particularly for young and vulnerable witnesses,
traditional examination and cross-examination techniques in court are a poor way of
eliciting comprehensive, reliable and accurate accounts of their experience.
...
2.6 There is a compelling case that the evidence of a child ... should be captured
in advance of any trial, in the form of a forensic interview preferably as soon as
possible after the initial complaint. Properly conducted, and often taking place
within hours or days of the reported incident, such interviews are the best way to
elicit a reliable and comprehensive account of the reported incident. With this
measure alone, a considerable burden is lifted off the witness, as their substantive
account is made only once, very early on in the process. It also benefits the trial
process, as the principal evidence is available for all the parties at the start of process,
without the risk that the account may change.”
[58] Following this line, the idea that the hearsay evidence of what young children have
reported should be treated with caution simply because it is not repeated in open court and
the child has not been cross-examined is hardly tenable. In the particular case of T, the
report from Dr MacPherson had made it clear that T was not capable of providing a
spontaneous account in a court (or even police interview) setting. As he correctly stated as a
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generality, young children are prone to change answers and to display compliance,
acquiescence and reticence in response to repeated or leading questions. There would have
been no advantage, in terms of a fair trial, in examining or cross-examining T.
[59] For the reasons already explained, the truth of the content of T’s statements was not
decisive in the decision made by the Children’s Hearing. It may have been important in the
sheriff’s decision to find that the Hearing’s decision was justified, but that is another matter.
The decision by the sheriff, that he could have regard to the hearsay on the basis that the
appeal hearing had been fair to all persons concerned, including the appellant, was one that
he would have been almost bound to take. Looking at the “counterbalancing factors” the
appellant was able to challenge the veracity of the statements, first, by cross-examining the
two witnesses who had reported them. The appellant could, and did, compare and contrast
the statements given to each witness. Secondly, the appellant was able to, and did, testify on
her own behalf. The sheriff was in a position to assess the evidence as a whole. He heard
about the context in which the statements had been made; notably their spontaneity over
dinner and when passing the local sheriff court. Notes about what had been said had been
made by Mrs H at the time. There was considerable surrounding evidence supporting the
occurrence of abuse from the photographs on HS’s phone. Specifically in relation to the
appellant’s presence during episodes of abuse, there was evidence from Ms Fair that, during
supervised contact with the appellant, T had tried to take her clothes off and displayed
sexualised behaviour.
[60] The sheriff had the remarks not only of T but also of C to consider in the context of
deciding whether to accept them all as essentially truthful. He was able to take account, as
he did, of the fact that the appellant had accepted that T had made the disclosures. This was
important. It was known that most of what T was saying about her having been abused was
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undoubtedly true given what had been found on HS’s mobile. The appellant was able to
make submissions about whether the truth of the statements should have been accepted as
fact having regard to the maturity of T and C, the language used and other matters. The
sheriff was nevertheless entitled to reject these submissions for the reasons which he has
provided. When considering, for example, whether T had meant the appellant had been
present in the room, and not just the house, at the time of the abuse, there were the
comments by T that her mother had, on one occasion, told HS to stop or she would call the
police. T also referred to the appellant having images of T on her mobile. She also
commented on her mother failing to keep her safe.
[61] Having regard to all these circumstances, the proceedings looked at as a whole were
fair. This question requires to be answered in the negative.
Question 2 - Did the sheriff err by finding the decision of the Children’s Hearing to be
justified?
[62] For the reasons already given, this question is answered in the negative. The
sheriff’s findings in fact, which went beyond those of the Children’s Hearing in relation to
the presence of the appellant during some episodes of abuse and her continued support for
HS, added weight to that justification. Such findings made a continuing CSO inevitable and
a reduction (if not a cessation) of contact entirely reasonable in the circumstances.
Question 3 – Having agreed that T should not be called as a witness, is the Appellant
entitled to challenge the sheriff’s decision to rely on T’s statements?
[63] It was entirely appropriate for the appellant not to call T as a witness in the appeal.
It was nevertheless equally appropriate for the appellant then to ask the sheriff to disregard
the statements as carrying no weight for the reasons concerning the reliability of hearsay
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which were argued. There is no inconsistency involved. This question is answered in the
affirmative.
[64] The court will refuse the appeal.