APPEAL COURT, HIGH COURT OF JUSTICIARY
556/99 and 557/99
OPINION OF THE COURT
THE HONOURABLE LORD COULSFIELD
MICHELLE SUZANNA WILLIAMSON and ALEXANDER SCOTT ALLAN
THE PROCURATOR FISCAL, KIRKCALDY
Act: Hamilton; Drummond Miller
Shead; Purdie & Co
Alt: Menzies Q.C., A.D.; Crown Agent
13 July 1999
The appellants in these two stated cases are Michelle Suzanna Williamson and Alexander Scott Allan. They were charged with a contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937 in that on 7 December 1997 at an address in Kirkcaldy they, being persons who had attained the age of 16 years and had the custody, charge and care of three children, did wilfully abandon those children in a manner likely to cause them unnecessary suffering or injury to health. The charges went to trial before the sheriff on 23 October 1998 and the sheriff convicted both appellants.
The findings-in-fact are that the appellants are the parents of three children, Laura Allan aged 8 years, Stacy Allan aged 5 years and Scott Allan, who was 2 at the material time. On 7 December 1997 two police officers attended at the address in Kirkcaldy in response to a 999 call. So far as the findings are concerned, there is no indication of who made that call. The point was referred to in adjustments proffered to the sheriff but the sheriff declined to make a precise finding on it. The sheriff tells us that the house was a flat entered from a close and that it was on two levels in the interior. When the police attended, they knocked at the door and a small dog, which the police described as a pit bull type dog and the accused Allan described as a Staffordshire terrier, appeared in the hall barking viciously. Eventually Laura Allan appeared. She said that she was afraid of the dog but, after a while, having been spoken to by the police, she managed to take the dog and lock it in an upstairs bedroom, where it remained barking viciously. The sheriff then finds that the house was generally untidy, although secure and warm. There were no obvious physical dangers other than a sharp and rusty sickle lying in the hall. There was dirty nappy lying in the livingroom and there were dog faeces lying on the carpet in the hallway. None of the children knew where their parents were. Laura said that the parents had left to obtain a car but knew no more. There was food which would have required cooking in the refrigerator and there was milk, bread and cheese in the refrigerator, but there was no baby food. The sheriff finds that to prepare food other than bread, cheese and milk for the children would have required cooking and it would have been dangerous for Laura Allan to cook. The sheriff then finds:
"The accused had left the children, unsupervised, in the flat at least one hour before the Police attended. They did not provide any means whereby the children could contact them or any other adult, if required. They did not return to the flat until shortly before 8.30 p.m., and then attended, at approximately 8.30 p.m. at the Police Office."
The sheriff further finds that the dog would have had to be taken out. It had already defecated in the hallway but Laura was afraid of the dog and could not deal with that properly. If she had taken the dog out, she would have had to leave the other two children alone. The sheriff further finds that the accused had wilfully left the children unsupervised and that Laura was too young to look after the youngest child who was exposed, as were the others, to the dog droppings in the house.
In his Note the sheriff records that a submission was made to him at the conclusion of the Crown case that there was no case to answer on the basis that the children had been left only for an hour, since the parents had left at about 11.30 a.m. and the police had intervened at 12.30 p.m. and that to leave the children in an adequately heated house with no obvious dangers for a period of an hour was not likely to lead to injury to health. The sheriff rejected that, broadly on the grounds that on the findings which we narrated there was inadequate food and that the arrangements did not permit the children to look after the dog properly. In particular, the sheriff observes that the cold food was inadequate for the two oldest children and there was no food for the youngest. In the light of these findings the sheriff convicted the two appellants.
On behalf of Michelle Williamson, Mr Hamilton submitted that the sheriff had been wrong to have regard to the time at which the parents had returned and that he should have had regard to the period only of one hour before the police intervened . It was also suggested that there was no evidence from which the sheriff was entitled to hold that the parents did not return until 8.00 or 8.30 p.m. That latter point was not made the subject of any ground of appeal and it was not suggested, in the grounds, that the sheriff was not entitled to make the finding which we have quoted. It seems plain to us that since the question is whether the appellants did wilfully abandon the children in a manner likely to cause them unnecessary suffering, that question has to be considered by reference to what the parents did, not by reference to the effects of the intervention of the police relatively soon after the parents had left the children. It was further suggested that the sheriff should have made further findings about the 999 call, but although there was an adjustment which the sheriff refused in that connection, again the matter was not made the subject of a specific question in the case and it was not said the sheriff was not entitled to leave the findings as he did.
It was submitted that having regard to the tests laid down in the case of H. v Lees 1993 S.C.C.R. 900 the circumstances to which the sheriff had referred, namely the lack of food, the presence of the dog, even the presence of the sickle in the hallway, were not sufficient to permit the inference that the children had been abandoned in a manner likely to cause them unnecessary suffering or injury to health. The situation in regard to food might have been less than wholly satisfactory, and in leaving the children with the dog the parents might not have attained the highest standard of care, Nevertheless the children were in a secure and warm house. They had bread, cheese and milk, which gave them some means of sustenance. The sickle was not likely to cause injury, even if it was a potential danger, and the child Laura was able to control the dog to some extent. The sheriff should not have indulged in speculation as to what might happen as if the child Laura were to attempt to cook and in the whole circumstances there was no sufficient material before him for conviction.
The submissions made on behalf of Michelle Williamson were adopted by Mr Shead on behalf of Alexander Scott Allan and it was added that the sheriff had not applied himself to the proper test, whether the abandonment was likely to cause unnecessary suffering and that there was not an adequate finding to that effect.
It was not disputed that the parents had wilfully abandoned the children. The test laid down in previous cases, including H. v Lees to which we have referred, is whether the abandonment, was likely to cause unnecessary suffering or injury to health. The sheriff has set out the facts fully and it is evident that although the flat was secure, as was pointed out, there were serious deficiencies in the way in which the children had been left. The food was, on the sheriff's finding, inadequate even for the older children and there was nothing suitable for the youngest child, who was aged 2. The dog was in the house and there were already dog faeces on the carpet in the hallway, a circumstance which could very easily have caused harm to the children; again, perhaps, the youngest child was particularly at risk. Further, in our view it is by no means speculative to have regard to the possibility of risks if in that situation the oldest child were to attempt to cook food in the house. The sheriff was correct, in our view, in having regard to what, on the findings, was the period for which the children were left by their parents, namely the whole period until 8.00 or 8.30 p.m. in the evening. What matters, we think, is what the parents did. On the findings, they left the house at about 11.30 a.m. and either had no intention of returning until a late hour or were diverted from returning earlier. However it came about, the effect of this action was to leave the children at the mercy of circumstance for a long period. In the whole circumstances, both these appeals fall to be refused.