Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_55.html
Cite as: [2019] CSIH 55, 2020 Fam LR 56, 2020 SLT 342, 2019 GWD 38-607, [2019] ScotCS CSIH_55

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2019] CSIH 55

XA47/19

XA48/19

Lord Brodie

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

delivered by LORD MALCOLM

in the cause

LO and EO

against

THE CHILDREN’S REPORTER AND ANOTHER

Appellants: Parties

First Respondent: Guy, sol adv; Anderson Strathern LLP

Second Respondent: Ardrey; David Kinloch & Co

19 November 2019

Appellants

Respondents

[1] On 28 January 2019 a children’s hearing dealt with an application for a review of

compulsory supervision orders (CSOs) which involve three children, NO, EO and MO. In

respect of NO and EO, the decision was that the CSOs be continued and varied for 1 year,

with a further review in 3 months. In respect of MO the review was deferred. The

application had been made by the children’s parents. They appealed the decisions to the

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sheriff in terms of section 154 of the Children’s Hearings (Scotland) Act 2011. The appeal in

respect of MO was refused as incompetent. Those involving NO and EO were refused on

their merits. The parents requested that the sheriff state cases to this court. The questions

posed require this court to rule on whether the sheriff erred in law in respect of both or

either of his decisions.

[2] With regard to MO, the answer is straightforward. The sheriff correctly held that a

decision to defer a review of a CSO is not an appealable decision. In terms of section 138(2)

of the Act, a children’s hearing is empowered to defer a decision on a CSO to a subsequent

hearing. Section 154(1) provides that an appeal can be made to the sheriff in respect of “a

relevant decision”. “Relevant decisions” are specified in section 154(3). They do not include

a deferral of a decision. This is understandable in that there would be no substantive

decision for the sheriff to assess, and nothing which has any practical impact upon an

existing CSO. It follows that the sheriff did not err in law when deciding that the appeal in

respect of MO was incompetent.

[3] With regard to NO and EO, the sheriff noted that the established grounds for referral

were that they had or were likely to have a close connection with a person who had

committed a schedule 1 offence in terms of section 67(2)(c) of the Act. The background is

that in March 2018, after 13 days of evidence, a different sheriff decided that it had been

proved that on a number of occasions both parents had assaulted MO and his older brother,

P. (NO and EO are the youngest of the four siblings.) The 20 January 2019 hearing was

convened at the request of the parents because, in the meantime, a criminal trial resulted in

their acquittal. P, who had previously spoken to the assaults, retracted his evidence. The

prosecutor decided not to lead any further evidence. MO, who, unlike his older brother,

remains in care, is represented in the stated case proceedings. He has said that he would not

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feel safe with his parents. He does not want contact with them. He moved the court to

refuse his parents’ appeal.

[4] The parents’ contention was that the finding of not guilty meant that the established

grounds for referral were no longer extant, and the children should be returned to their

parents. It was submitted to the sheriff that the children’s hearing had erred in taking the

view that the decision in the criminal court did not disturb the established grounds for

referral. The hearing’s approach was that until the parents agreed to engage with the

parenting assessment, and given the serious nature of the grounds upheld by the sheriff, the

children remained in need of compulsory measures of care and protection. The sheriff held

that the children’s hearing’s decision was justified. The parents’ acquittal had been

considered and taken into account. There was no basis upon which he could or should

interfere with the decision in respect of NO and EO.

[5] A number of issues have been raised by the parties, however, aside from the

competency of the decision regarding MO, the only question before this court is whether the

sheriff erred in declining to uphold the contention that the parents’ acquittal must result in a

successful appeal. The court has no difficulty in answering this in the negative. It is well

established that when a ground of referral to a children’s hearing relies upon the committal

of a schedule 1 offence, a criminal conviction is not a prerequisite, and that a ground might

be established even if a prosecution results in an acquittal. Reference can be made to

Kennedy v B 1991 SC 394. A sheriff had held that a schedule 1 offence ground for referral

was established, and remitted the case so that a children’s hearing could be arranged. In

due course the three children involved were made the subject of home supervision

requirements with conditions that they did not live with their father and should not be left

alone with him. Subsequently the father was found not guilty of the offence which

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prompted the grounds for referral. A children’s hearing then reviewed the supervision

requirements, deciding to vary them to non-residential with no conditions. That decision

was appealed to the sheriff. Amongst other things it was argued that, in light of the

acquittal, the supervision requirements should be terminated. The reporter drew attention

to the dilemma arising from the different outcomes of the jury trial and the referral. Social

workers remained concerned for the children. Supervision was a safeguard, giving them

access to the children and a monitoring role.

[6] The sheriff decided that the children’s hearing’s decision was not justified.

Insufficient weight had been given to the outcome of the jury trial. He allowed the appeal

and remitted the case for reconsideration, observing that the allegations were now based on

“discredited and worthless testimony”. Delivering the opinion of the Second Division, the

Lord Justice Clerk, Lord Ross, observed (page 401) that the unanimous finding of not guilty

did not necessarily mean that the complainer was rejected as incredible or unreliable.

Criminal responsibility would need to be established by proof beyond reasonable doubt (the

grounds for referral require only proof on a balance of probabilities). It was possible that the

problem was an absence of satisfactory corroboration. The acquittal was a relevant factor for

the children’s hearing, but each case depended upon its own circumstances. The reporter’s

appeal was upheld on the basis that the not guilty outcome was not conclusive in favour of

the termination of the supervision requirements.

[7] In the light of this guidance it cannot be said that the sheriff erred in refusing the

parents’ appeal. We would add that we can understand why the children’s hearing decided

as it did. The sheriff who upheld the grounds of referral said (page 18 of her judgment):

“I heard what can only be described as overwhelming evidence from each of the

boys. It was striking that both boys have consistently (given) clear evidence that they

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had suffered violence at the hands of both of their parents, and each boy referred to

incidents involving their sibling…”

As the Second Division confirmed in Kennedy, every case will depend upon its own facts and

circumstances. At the criminal trial one of the boys did not repeat his evidence as to the

assaults, but this does not remove the earlier establishment of the grounds for referral, nor

take away any cause for concern in respect of the children’s welfare. P’s retraction meant

that the evidence of MO would be uncorroborated and this resulted in the acquittal. It is

relevant that MO remains fearful of his parents and does not wish to return to them. The

children’s hearing retained a jurisdiction and a responsibility to consider and keep the

children’s welfare in the forefront. Notwithstanding the parents’ acquittal it was entitled to

reach the view that compulsory protective measures were still required.

[8] The parties have raised a number of other issues, but the parameters of the court’s

jurisdiction are circumscribed by the stated cases. Thus, for example, it is not open to this

court to review the decision of the sheriff in 2018 upholding the grounds for referral and

pronounce new findings in fact. Nor can we offer views on whether the children’s hearing

had jurisdiction on the basis of the habitual residence of the children in Scotland at the time

of the first referral, though we note that the children’s hearing is in the course of addressing

that matter. In an eloquent oral presentation to the court on behalf of herself and her

husband, the children’s mother raised a number of alleged flaws in the procedures and the

decision-making in respect of her children. Some of this was foreshadowed in a four page

note lodged in advance of the hearing. None of this was relevant to the issues before the

sheriff or to the questions posed in the stated cases. Nonetheless, the court observes that it

has found nothing of merit in the complaints. By way of illustration, it was submitted that a

children’s hearing will only have jurisdiction in respect of alleged schedule 1 offences which

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have been the subject of a criminal conviction. As part 6 of the Act and the decision in

Kennedy clearly demonstrate, this contention is unfounded. Similarly it is not correct that the

children’s hearing was obliged to listen to evidence from the children. Reference was made

to section 125 of the Act, but it has no relevance to the present case, and likewise in respect

of the time limit set down in section 157.

[9] It was suggested that it was unreasonable for the children’s hearing to postpone any

parenting assessment until the parents accept their guilt. This was not a matter raised before

the sheriff in the appeals with which we are concerned, though we note the parents have

enjoyed a measure of success in respect of it before another sheriff in a subsequent appeal.

Indeed, as one would expect, matters have moved on in that there have been children’s

hearings addressing the CSOs since the appeals with which the stated cases are concerned.

In these circumstances, all that the court requires to do is remit the stated cases to the sheriff

who signed them, with directions that he need do nothing more than note that the decision

of the court is that in refusing the appeals he did not err in law. The questions posed in the

stated cases are answered in the negative.