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Cite as: 2022 SC 218, 2022 SLT 101, [2021] CSIH 65, [2021] ScotCS CSIH_65, 2022 GWD 1-1, 2022 Fam LR 7

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2021] CSIH 65

P671/21

Lord Woolman

Lord Doherty

Lord Matthews

OPINION OF THE COURT

delivered by LORD DOHERTY

in the Petition to the nobile officium

Petitioner

Petitioner: M Hughes; Campbell Smith LLP

First Respondent: M Ross QC, Findlater; Anderson Strathern LLP

Second Respondent: Kerrigan QC; Balfour + Manson LLP

Third Respondent: Allison; Drummond Miller LLP

Fourth Respondent: Guinnane; Rutherford Sheridan

Sixth Respondent: Stuart QC; Scottish Government Legal Directorate

7 December 2021

Introduction

[1]

The petitioner is the mother of four children ("the children"), namely HA, the third

respondent, who is aged 14; SS, the fourth respondent, who is aged 13; US, who is aged 4;

and BA, who is aged 2. The first respondent is Anne-Marie McGinley, the Locality Reporter

Manager for Glasgow within the Scottish Children's Reporter Administration. The second

respondent is SA. He is the partner of the petitioner and the father of HA, SS, US and BA.

The sixth respondent is the Lord Advocate.

[2]

The Principal Reporter, acting on behalf of the first respondent, issued grounds of

referral in terms of section 67 of the Children's Hearings (Scotland) Act 2011 ("the

2011 Act"). The supporting facts include allegations that the petitioner and the second

respondent have repeatedly assaulted and wilfully ill-treated the children. Proceedings in

relation to those grounds of referral are pending at Glasgow Sheriff Court. The petitioner

and the second respondent are both "relevant persons" for the purposes of the referral

proceedings. They do not accept the grounds of referral or the supporting facts. The

children are subject to interim compulsory supervision orders. SS's case is the lead case.

[3]

SS's evidence was taken on commission by way of interrogatories on 24 and

26 March 2021. The petitioner's and the second respondent's representatives prepared

detailed interrogatories which were put to SS at the commission.

[4]

The petitioner and the second respondent are both the subject of criminal

proceedings in respect of conduct alleged in the grounds of referral. Initially, those

proceedings were summary proceedings. However, following a review by the Crown Office

and Procurator Fiscal Service ("the Service") the summary proceedings were discontinued

and petition proceedings have now been commenced against them.

[5]

In late July and early August 2021 the petitioner's agents sought clarification from

the Service whether the summary criminal proceedings against her were to be proceeded

with. By email of 11 August 2021 the agents enquired whether the Service had made any

request of the Principal Reporter to make available to it information from the referral

proceedings in terms of section 179 of the 2011 Act. On 13 and 18 August 2021 the Service

advised that the criminal proceedings against the petitioner would now be on petition. It

also advised that while no application in terms of section 179 had been made to date it could

not rule out the possibility that such an application might be made. It indicated that it saw

no difficulty with the civil case being heard before the criminal proceedings.

[6]

A proof was due to take place in the referral proceedings on 26 and 27 August,

16 and 17 September, and 3, 4, 5, 10, 11, and 12 November 2021. At the pre-proof hearing on

23 August 2021 the petitioner's counsel moved the sheriff to discharge the proof diet and to

sist the proceedings pending completion of the criminal case against the petitioner . The

sheriff refused the motion. Following that refusal the petitioner's agents emailed the Service

asking for an undertaking that it would not exercise the section 179 power to request

information from the Principal Reporter about the referral proceedings. The Service

declined to provide any such undertaking.

[7]

At the outset of the proof on 26 August 2021 counsel for the petitioner moved for

leave to appeal the sheriff's decision to refuse the motion for a discharge and a sist . The

sheriff refused leave to appeal. However, on being advised that this petition was to be

brought he discharged ex proprio motu the hearings which were due to take place on 26 and

27 August. On 27 October 2021 he discharged the remaining proof dates and assigned a

new proof diet commencing on 14 February 2022.

The petition and answers

[8]

The petition seeks to invoke the nobile officium. It narrates the history of the referral

proceedings and the criminal proceedings. The petitioner avers that the prospect of the

Service exercising the section 179 power infringes her article 6 and article 8 ECHR rights.

She avers that it precludes her effective participation in the referral proceedings, and that

that is not in the best interests of the children. She avers that the sheriff's refusal to

discharge the proof and sist the proceedings is unjust and that application by her to the

nobile officium is her only remedy. She also avers (Stat 23) that:

"Section 179 ... is contrary to Section 29 of the Scotland Act 1998 and is accordingly

out-with (sic) the legislative competence of the Scottish Parliament."

However, the prayer of the petition does not mention legislative competence. It merely

craves the court:

"to ordain the sheriff at Glasgow to discharge and sist the Children's Referral Proof

proceedings ... until conclusion of the criminal matter involving the petitioner, or

until intimation by the Crown of an undertaking not to request any information

about the said Children's Referral proof proceedings under and in terms of

Section 179 of the Children's Hearings (Scotland) Act 2011."

In Stat 24 and Stat 26 the petitioner avers:

"Stat 24. In the circumstances ... the Court having become apprised of the

coincidence of the criminal charges with the statement of grounds, ought in the

interests of justice to have granted discharge of the dates assigned to hear evidence

and sist of the Children's Referral proof proceedings until determination of the

criminal proceedings or until the Crown provided an undertaking that it will not

invoke the terms of Section 179 in respect of the Petitioner...

Stat 26 The decision by the Sheriff of 23rd August 2021 being not susceptible to leave

to appeal standing the terms of Section 163 of the Act of 2011, despite it being

manifestly contrary to the interests of justice and there being no other remedy

available to the Petitioner, this application is necessary in the interests of justice..."

[9]

In their answers the first, third, and sixth respondents aver that the petition is

incompetent. The court fixed a hearing to determine the competency issue.

Relevant statutory provisions

[10]

Sections 25, 101, 163, and 179 of the 2011 Act provide:

"25

Welfare of the child

(1)

This section applies where by virtue of this Act a children's hearing, pre-

hearing panel or court is coming to a decision about a matter relating to a child.

(2)

The 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 ...

101

Hearing of application

(1)

This section applies where an application is made to the sheriff by virtue of

section 93(2)(a) or 94(2)(a).

(2)

The application must be heard not later than 28 days after the day on which

the application is lodged.

(3)

The application must not be heard in open court ...

163

Appeals to sheriff principal and Court of Session: children's hearings etc.

(1)

A person mentioned in subsection (3) may appeal by stated case to the sheriff

principal or the Court of Session against--

(a)

a determination by the sheriff of--

(i)

an application to determine whether a section 67 ground (other

than the ground mentioned in section 67(2)(j) if the case was remitted

to the Principal Reporter under section 49 of the Criminal Procedure

(Scotland) Act 1995) is established,

(ii)

an application under section 110(2) for review of a finding that

a section 67 ground is established,

(iii)

an appeal against a decision of a children's hearing,

(iv)

an application under section 98 for an extension of an interim

compulsory supervision order,

(v)

an application under section 99 for a further extension of an

interim compulsory supervision order,

(b)

a decision of the sheriff under section 100 to--

(i)

make an interim compulsory supervision order,

(ii)

make an interim variation of a compulsory supervision order.

(2)

A person mentioned in subsection (3) may, with leave of the sheriff principal,

appeal by stated case to the Court of Session against the sheriff principal's decision in

an appeal under subsection (1).

(3)

The persons are--

(a)

the child,

(b)

a relevant person in relation to the child,

(c)

a safeguarder appointed in relation to the child by virtue of section 30,

(d)

two or more persons mentioned in paragraphs (a) to (c) acting jointly,

and

(e)

the Principal Reporter.

(4)

Despite subsections (1) and (2), a safeguarder may not--

(a)

appeal against a determination by the sheriff of a type mentioned in

subsection (1)(a)(i) or (ii), or a decision of the sheriff of a type

mentioned in subsection (1)(b),

(b)

appeal to the Court of Session against the sheriff principal's decision

in such an appeal.

(5)

Despite subsection (1), the Principal Reporter may not appeal against a

determination by the sheriff confirming a decision of a children's hearing.

(6)

Subsection (7) applies in relation to--

(a)

an appeal against a determination by the sheriff of an application

under section 110(2) for review of a finding that a section 67 ground is

established,

(b)

an appeal to the Court of Session against the sheriff principal's

decision in such an appeal.

(7)

In subsection (3)(a) and (b)--

(a)

the references to the child are to the person in relation to whom the

section 67 ground was established (even if that person is no longer a

child),

(b)

the reference to a relevant person in relation to the child includes a

person who was, at the time the section 67 ground was established, a

relevant person in relation to the child.

(8)

An appeal under this section must be made before the expiry of the period of

28 days beginning with the day on which the determination or decision appealed

against was made.

(9)

An appeal under this section may be made--

(a)

on a point of law, or

(b)

in respect of any procedural irregularity.

(10)

On deciding an appeal under subsection (1), the sheriff principal or the Court

of Session must remit the case to the sheriff for disposal in accordance with such

directions as the court may give.

(11)

A decision in an appeal under subsection (1) or (2) by the Court of Session is

final.

(12)

In subsection (1)(a)(ii), the reference to a determination by the sheriff of an

application under section 110(2) for review of a finding that a section 67 ground is

established includes a reference to a determination under section 117(2)(a) that a

ground is established.

...

179

Sharing of information: prosecution

(1)

This section applies where--

(a)

by virtue of this Act, the Principal Reporter, a children's hearing or the

sheriff has determined, is determining or is to determine any matter

relating to a child,

(b)

criminal proceedings have been commenced against an accused,

(c)

the proceedings have not yet been concluded, and

(d)

the child is connected in any way with the circumstances that gave

rise to the proceedings, the accused or any other person connected in

any way with those circumstances.

(2)

The Principal Reporter must make available to the Crown Office and

Procurator Fiscal Service any information held by the Principal Reporter relating to

the prosecution which the Service requests for the purpose of--

(a)

the prevention or detection of crime, or

(b)

the apprehension or prosecution of offenders."

The parties' submissions

[11]

Counsel for the petitioner submitted that on a proper construction of section 163 of

the 2011 Act there is no right of appeal against interlocutory decisions such as the decision of

23 August 2021. Moreover, section 163 should be interpreted as expressly excluding all

other means of challenging such decisions (whether by way of reduction, suspension or

judicial review). Even if that is not so, reduction, suspension or judicial review are only

available where a decision is one "on the merits" as opposed to an interlocutory decision .

The referral proceedings are incipient - they have not been concluded. The sheriff's

interlocutor was not a decision on the merits. Accordingly the remedy available to the

petitioner is an application to the nobile officium. The circumstances of the present case are a

casus improvisus. The circumstances are unusual and unforeseen in view of the gravity of the

criminal charges which the petitioner faces. Unless the Service undertakes not to exercise

the power the petitioner will be advised by h er legal representatives that it may be exercised

(cf H(N) v HM Advocate 2019 SLT 943), and she may well be counselled not to participate in

the referral proceedings, or at least to limit her participation. The possibility of the Service

exercising the power will prevent the petitioner from effectively participating in the referral

proceedings. Those are highly unusual circumstances which were not foreseen by the

Scottish Parliament when section 179 was enacted, and it is in the petitioner's interests and

the children's interests that her participation in the referral proceedings is not affected by

such a constraint. It has always been recognised that it is important that referral

proceedings take place in a closed court and that the material in those proceedings is not

made available to the Service (Ferguson v P; Ferguson, Petitioner 1989 SC 231, opinion of the

court delivered by Lord Justice Clerk Ross at pages 237-8; section 101(3) of the 2011 Act).

Moreover, given the non-availability of any other remedy it is necessary to have resort to the

parens patriae jurisdiction of the court in order to safeguard the welfare of the children

(Cumbria County Council v X 2017 SC 451, opinion of the court delivered by Lord Drummond

Young at paragraphs [14], [25] and [26]). Counsel also submitted that section 179 "is

incompatible with articles 6 and 8 ECHR". She maintained that the issue of incompatibility

could "be dealt with within the present petition".

[12]

Senior counsel for the second respondent adopted counsel for the petitioner's

submissions. He submitted that section 179 constrained the participation of the petitioner

and the second respondent in the referral proceedings, and that that constraint breached

their article 6 and article 8 ECHR rights. There was no indication in the Bill's Policy

Memorandum or in the Explanatory Notes or in the reports of the Bill's proceedings in the

Scottish Parliament that the Scottish Government or the Parliament gave any consideration

to the problems which could arise in cases such as the present one. The situation here was

unforeseen and extremely unusual. Resort to the nobile officium was competent.

[13]

Counsel for the fourth respondent submitted that "it was open" to the court to find

that the petition was competent, but she did not explain why that was so. She submitted

that "in due course" the prayer of the petition "should be refused as unnecessary". The

circumstances were neither highly special nor unforeseen. Proceeding with the referral

proof which had been appointed by the sheriff would not breach the article 6 or article 8

rights of the petitioner or the second respondent. The fourth respondent had already given

her evidence on commission by way of interrogatories, including interrogatories submitted

on behalf of the petitioner and the second respondent. The fourth respondent wishes the

referral proceedings to be concluded without further delay. That is what is in her best

interests and in the best interests of the other children.

[14]

Senior counsel for the first respondent submitted that the petition is incompetent,

and that if it is competent the court should decline to entertain it. The petitioner has an

alternative remedy in the Outer House, namely reduction of the sheriff's interlocutor which

refused the motion for a discharge and a sist. On a proper construction of section 163 it does

not exclude review by reduction. While it is unnecessary for the court to determine whether

reduction should be sought in an ordinary action or in a petition for judicial review, it would

be helpful if the court was prepared to express a view on the matter. Prior v Scottish

Ministers 2020 SC 528 at paragraph [44] suggests that the appropriate procedure would be an

ordinary action. However, in practice reduction of orders of inferior courts and tribunals is

frequently sought in judicial review proceedings, and in Prior the court does not appear to

have been referred to the opinion of Lord Menzies in Glasgow City Council, Petitioners 2004

SLT 61, at paragraph [24] or to the opinion of Lord Brodie in D, Petitioner 2011 SLT 101 at

paragraphs [12]-[13]. There is nothing exceptional or unforeseen about the circumstances of

the present case. It is an all too common situation that a relevant person in referral

proceedings is also an accused in criminal proceedings, and there is no reason to suppose

that the Scottish Parliament was unaware of that when it enacted section 179. This is not a

case where the court's parens patriae jurisdiction may be invoked. The petitioner has another

remedy. Moreover, she is not a child, and the primary purpose of the petition is to protect

her interests rather than the interests of her children . The petitioner's interests and the

children's best interests do not coincide. They are opposed.

[15]

Counsel for the third respondent submitted that the petition is incompetent, for two

reasons. First, this is not a case where there is a casus improvisus in section 163 of the

2011 Act. The omission of a right of appeal against interlocutory decisions was a deliberate

feature of the scheme of the legislation. For the court to intervene in such a case would be to

trespass on the province of the legislature (R v Kennedy 1993 SC 417, opinion of the court

delivered by Lord President Hope at p 421; Cumbria County Council v X, at para [25]).

Second, this is not a case where the petitioner could invoke the court's parens patriae

jurisdiction. She has an alternative remedy. Further, the critical objective of the present

application is to protect the interests of the petitioner, not to ensure the welfare of the

children (cf Cumbria County Council v X at para [26]).

[16]

Counsel for the sixth respondent submitted that resort to the nobile officium is only

competent in exceptional and unforeseen circumstances, and where no other remedy is

available. The circumstances of this case are neither exceptional nor unforeseen, and the

petitioner has an available remedy - a petition for suspension or an action for reduction. The

concurrence of criminal proceedings and referral proceedings had been foreseeable, indeed

it was and is commonplace. Section 179 contemplates such concurrence. Reduction or

suspension of a sheriff's interlocutor may be obtained in exceptional circumstances to avoid

a miscarriage of justice (Man Hen Liu v Andersons Solicitors LLP [2017] CSIH 45, opinion of

the court delivered by Lord President Carloway at para [19]; Lamb v Thompson (1901) 4 F 88,

at pages 91-92; Principal Reporter v K 2011 SC (UKSC) 91). Section 163 of the 2011 Act does

not exclude resort to such remedies.

Decision and reasons

[17]

The hearing was appointed to determine the competency of the petition. Some of the

submissions drifted into a consideration of its relevancy and merits. Those issues are not

before us.

[18]

Some of the petitioner's averments and submissions are poorly focused. The

proposition that section 179 is outside the competence of the Scottish Parliament is an

audacious one. It raises a devolution issue. However, neither the petitioner's averments nor

her submissions articulate, why, if the proposition is correct, the sheriff ought to have

granted the motion for a discharge and sist. The real nub of the petitioner's Convention

rights complaint so far as the sheriff's decision is concerned may be an argument that his

refusal to grant the motion, when the prospect of a section 179 request being made hung

over the petitioner like a sword of Damocles, was a breach of her article 6 and article 8

rights, and was therefore unlawful in terms of section 6 of the Human Rights Act 1998. We

shall return shortly to the petitioner's Convention complaint.

[19]

The petition is premised upon the proposition that an application to the nobile

officium is competent because the petitioner has no other remedy. We are not persuaded that

an application to the nobile officium is the petitioner's only remedy.

[20]

The cornerstone of the petitioner's submissions is that section 163 of the 2011 Act

expressly excludes not only any right of appeal against interlocutors such as the sheriff's

interlocutor of 23 August 2021, but also any corrective remedies (eg reduction or

suspension) which might otherwise have been available at common law. In our opinion, on

a proper construction of section 163 it does no such thing. Nor in our view does section 163

impliedly exclude the availability of such possible remedies.

[21]

We do not think it necessary or appropriate to consider all of the remedies which

might be available to the petitioner if her complaints are well founded. It suffices to say that

reduction would be competent if she could show that it is necessary to avoid a miscarriage

of justice or to produce substantial justice (see eg Man Hen Liu v Andersons Solicitors LLP, at

paras [19]-[20]). Thus, for example, if the petitioner is correct that the sheriff's decision

contravened her Convention rights and is unlawful, reduction of that decision would be

competent.

[22]

We are not disposed to accept the invitation to opine at this stage whether the vehicle

for seeking reduction could be an ordinary action or a petition for judicial review. We

confine ourselves to observing that in a case like the present one the court would be unlikely

to raise a competency point ex proprio motu; and that the parties should be mindful of their

responsibility to do their utmost to enable the case to be resolved as speedily as possible.

[23]

We reject the submission that only final decisions "on the merits" of a cause may be

amenable to reduction. No authority was cited in support of the submission, and it is not

difficult to find instances where the court has reduced or suspended interlocutors of inferior

courts which were not final decisions determining the matter in controversy in the action or

petition (eg Man Hen Liu v Andersons Solicitors LLP). We also reject the submission that the

circumstances of the present case are exceptional and unforeseen, and that they disclose a

casus improvisus. The concurrence of criminal proceedings and referral proceedings was

foreseen by the legislature. It could hardly not have been, given that criminal proceedings

against relevant persons were and are far from uncommon. Section 179 clearly contemplates

the possibility of such concurrence.

[24]

Since the petitioner is not devoid of a remedy, we are not persuaded that she may

invoke any aspect of the court's nobile officium, the parens patriae jurisdiction or otherwise. So

far as the former is concerned, we see force in the submission that the petition primarily

advances the petitioner's interests rather than the interests of the children, but it is

unnecessary to reach a concluded view on that matter.

Disposal

[25]

We shall sustain the first respondent's first plea-in-law and dismiss the petition. We

shall reserve meantime all questions of expenses.