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Cite as: [2003] ScotSC 9

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Glasgow City Council v. DH [2003] ScotSC 9 (13 March 2003)

8B11/02

JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

GLASGOW CITY COUNCIL

APPLICANT

against

RESPONDENT

Act: Janys Scott, Advocate, instructed by Legal Services, Glasgow City Council.

Alt: Mr Joseph, Solicitor, McClure & Partners.

Ms McBryde, Solicitor, Quinn Martin & Langan.

Ms S Kelly, Solicitor, Curator ad litem for GH and JH.

GLASGOW, 13 March 2003.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal as incompetent.

NOTE:

[1] This is an appeal against an interlocutor of Sheriff Raeburn QC pronounced on 26 November 2002 refusing an application for an Exclusion Order under Section 76 of the Children (Scotland) Act 1995. The appeal was conjoined, and heard along with, an appeal in a similar application involving the same parties which was refused by Sheriff Holligan on 28 November 2002. I have concluded that both appeals are incompetent but before proceeding to give my reasons for arriving at this conclusion it may be convenient to have regard to the terms of the relevant legislation and to an outline of the circumstances giving rise to these applications.

[2] Part II of the Children (Scotland) Act 1995 deals with the promotion of Children's Welfare by local authorities and by Children's Hearings etc. Chapter 2 of that part of the Act deals with the constitution of Children's Hearings and the conduct of proceedings before them. The concluding section of that chapter, Section 51, makes provision for appeals and in particular, in Section 51(11), makes for provision for appeals by way of Stated Case to the Sheriff Principal from any decision of the sheriff in determining an appeal from a decision of the Children's Hearing. Section 51(11) also "looks ahead" by providing a similar right of appeal in relation to decisions of the sheriff in determining whether grounds of referral have been established (Section 65(7) and (9) of the Act) and on an application for review of establishment of grounds of referral (Section 85(1) of the Act).

[3] Sections 76 to 80 of the Act contain provisions in relation to Exclusion Orders, a new procedure intended to secure the protection of children by excluding individuals who may constitute a danger from the child's home rather than requiring the removal of the child. Shortly stated the sheriff is empowered to grant an Exclusion Order on condition that the child has suffered, is suffering or is likely to suffer significant harm as the result of conduct on the part of a named person and that the making of an Exclusion Order against that named person is necessary for the protection of the child and would better safeguard the child's welfare than the removal of the child from the family home. An application for an Exclusion Order cannot be "finally determined" until that named person has been afforded an opportunity of being heard by or represented before the sheriff (section 76(3)). Under the "emergency" provisions of subsections (4) to (6) the sheriff is empowered to grant an interim order before the named person is heard and is thereafter required to conduct "a hearing" within a specified time before finally determining the application. In terms of Rule 3.36 of the Child Care and Maintenance Rules 1997 that hearing requires to take place not later than three working days after the granting of the interim order. Section 77 makes provision for certain ancillary orders including warrants for summary ejection and powers of interdict. Section 78 makes provision for a power of arrest. Section 79 provides principally that an Exclusion Order shall cease to have an affect on a date six months after being made. There are no provisions relating to appeal.

[4] The application with which this appeal is concerned was lodged in this court on 5 February 2002. It seeks an order excluding the respondent DH from the family home. That home is occupied by his wife TH, their son MH, now aged 17 and daughters GH (born 17.06.87) and JH (born 19.08.90). Stated shortly concerns arose over the respondent's behaviour towards his daughters whilst serving in the army in Germany. He left the army in 2001 and the family moved to Edinburgh. The girls were referred to the Children's Hearing and the grounds of referral were held to be established following proof before a sheriff in Edinburgh on 19 December 2001. In November 2001 an Exclusion Order was obtained in the Sheriff Court in Edinburgh but that was not finally determined before the family moved to Glasgow. The history of the present application is narrated in some detail in the Sheriff's Note. She records that on 22 February 2002 she confirmed an interim Exclusion Order and continued consideration of the application until 6 March 2002 to allow the curator appointed to the children to make further investigations and for the solicitor for the respondent to obtain legal aid. On 6 March 2002 the interim Exclusion Order was confirmed and 10 June 2002 fixed as a diet for an evidential hearing. The position at that stage, that is to say when the circumstances of the family were discussed in March, appears to have been that it was accepted that a risk assessment of the family situation required to be carried out by the Social Work Department and in addition there was a need for work to be carried out by a psychologist with the respondent in the hope that he could be resettled in the family home without risk to the children. It appeared to be the wish both of the respondent's wife and the children themselves that the family should be reunited in this way. The principal difficulty, as I understand it at that stage and in subsequent months, was in obtaining funding for the necessary work to be carried out with the respondent.

[5] The position which was presented to the sheriff on 26 November 2002, on the basis of the submissions made to me, is to a certain extent uncertain. The sheriff records in her note that when the case was before her on 3 September the Social Work Department had not completed their assessment, and the funding of the psychological assessment (that is to say the assessment relating to the respondent) had not yet been resolved. She records that on 26 November the Social Work Department's assessment had not yet been completed. I was informed whilst that was strictly accurate the real difficulty was that no progress had been made in respect of the psychological assessment of the respondent. That being so I was informed by counsel for the applicants that the understanding was that a motion had been made by all parties to the sheriff to adjourn the hearing fixed for 26 November. That joint motion was made despite the fact that, according to counsel the applicants had witnesses available and would have been in a position to proceed with the hearing if required. The agent for the respondent, who was not present on 26 November disputed that there had been any such joint motion. He contended that the applicants had been "dragging their heels" in the preparation of their assessment and that it was the applicants who were not in a position to proceed to a hearing. In the light of the view which I have taken of the competency of this appeal is that it is not necessary to determine what the position was. Suffice it to say that the sheriff took the view that it would be unreasonable to allow further procedure. In that situation she simply refused the application.

[6] In preparing a note for the purposes for this appeal the sheriff drew attention to the absence of any statutory right of appeal and raised the question of competency. Counsel for the applicants maintained that there was a right of appeal to the Sheriff Principal. She acknowledged that the absence of any specific statutory right and accepted the contrast with the appeals procedure set out in Section 51 of the Act. She contended, however, that an Exclusion Order had more in common with an application under Section 86 which deals with "Parental Responsibilities Orders" being the statutory successor to Section 16 of the Social Work (Scotland) Act 1968 which related to the assumption of parental rights. The question of the competency of an appeal against a decision of the sheriff in proceedings under that section had been dealt with and resolved in the case of Central Regional Council v B, 1985 SLT 413. Counsel referred to the Opinion of Lord Robertson at p 416. In holding that an appeal from the decision of the sheriff under Section 16 of the 1986 Act to the Sheriff Principal or to the Court of Session was competent his Lordship had had regard to the observations of Lord Justice-Clerk Moncrieff in Magistrates of Portobello v Magistrates of Edinburgh, 1882 10 R 130. In his opinion (at p 137) the Lord Justice-Clerk said this:

"Where a new and special jurisdiction is given to any court the exercise of it must be regulated entirely by the conditions of the statute under which it is conferred, and that in the general case remedies which might have been competent in an ordinary civil process are not to be presumed or inferred to be given by the particular statute...But, on the other hand, I imagine that where a well known and recognised jurisdiction is invoked by the legislature for the purpose of carrying out a series of provisions which are important for the public without any specific form of process being prescribed, the presumption is that the ordinary forms of that court are to be observed in carrying out the provisions, and, indeed, generally that the court has been adopted and chosen and selected because it is seen to be advisable that the ordinary rules of such court and the forms of its procedure shall be applied to give effect to the provisions of the legislative act."

An application under Section 76 of the 1995 Act was a summary application within the meaning of Section 3(p) of the Sheriff Court (Scotland) Act 1971. The procedure applicable to summary applications, including appeals procedure, was to be presumed. Counsel founded on passages in Macphail, Sheriff Court Practice, 2nd ed, paras 18.10 and 25.30 in support of the view that there was nothing to indicate that a right of appeal was excluded. Further, and significantly Section 92 of the 1995 Act, introduced a revised Section 29 to the Legal Aid (Scotland) Act 1986. Subsection 9 provides that:

"legal aid shall be available in connection with any appeal from a decision of the sheriff on an application for an Exclusion Order...".

On the other hand in his book "Children's Hearings in the Sheriff Court" (2nd ed) Sheriff Kearney had expressed reservations at para 14.70 as to the appeals procedure. It is stated therein:

"It is submitted that it is competent to appeal against a final Exclusion Order to the Court of Session but probably not to the Sheriff Principal. It is thought that appeal against an interim order which had not been confirmed under Section 76(5) would not be appealable but it is tentatively submitted that an interim order which had been so confirmed may be appealable to the Court of Session and that such an appeal might have to be considered if the final hearing of the proof were long delayed".

Counsel contended that there was no justification for this view.

[7] The agent for the respondent, the agent for the mother, and the curator ad litem to the children all adopted positions of neutrality in respect of this submission. The curator ad litem expressed the view that whatever else happened the proceedings should be brought to an early conclusion. Whilst I can understand the position adopted by these parties in relation to this point of competency it leaves me in the position of having to resolve what I consider to be an important matter of practice without the benefit of any submissions by way of contradiction. I have, however, come to the conclusion, albeit with difficulty, that I should not conclude that a Sheriff Principal has jurisdiction to deal with an appeal against the disposal of an application under Section 76 in the absence of specific direction. In consequence this appeal falls to be refused as incompetent.

[8] I reach the above view for the following reasons:

(1) When Parliament has an acted provisions for the protection of children, incorporating a procedure for emergency protection (subsections (4), (5) and (6) of Section 76) one should be reluctant to superimpose an appeal procedure which may result in delay in any form.

(2) That consideration is reinforced by the "temporary" nature of an order under Section 76. The fact that it ceases to have effect after a period of six months does not in my view sit easily with an intention to allow a right of appeal.

(3) The absence of any specified appeal procedure, or statutory grounds of appeal leads to a number of practical difficulties. Although the powers which the sheriff is entitled to exercise, and the factors which he has to take into account in dealing with an application under Section 76 are set out in some detail, the repeated use of the word "may" (subsections (1), (4), (5) and (7)) is indicative of this being an area in which the sheriff is exercising his discretion. The power of an appellate court to interfere is restricted, and whilst that could be exercised in accordance with recognised principles one might have expected, having regard to the need for expedition, for any right of appeal to be confined to issues of law or irregularities in the procedure (cf Section 51(11) of the Act). If more general grounds of appeal are to be assumed, it is difficult to see how the appellant court could deal with any potential issues without having before it some form of record of the evidence. That in itself is indicative of the absence of any right of appeal: see Allan & Sons Bill Posting Ltd v Edinburgh Magistrates, 1909 SC 70, Lord Low at pp 75-76. In short, if an appeal to the Sheriff Principal in relation to a Section 76 order was intended I would have expected that to be by way of Stated Case.

(4) The absence of any directions as to the form of disposal of an appeal causes potential difficulties. I again contrast the procedure for disposal of appeals under Section 51(11) of the Act which in terms of subsection (14) are to be remitted to the sheriff for disposal. It is perhaps not surprising, in the context of a procedure for an order which is only intended to last six months, that one finds no stated case procedure or power to remit to the sheriff for further procedure. But the inevitable inference of the absence of any such power, assuming a right of appeal to exist, is that the appellate court might find itself in the position of quashing an order with no power to deal with the matter afresh in a situation where critical action to protect a child was necessary. The alternative course - namely that the appellate court should reach its own conclusion - seems to me to create a procedure for review rather than appeal.

[9] I accept the force of counsel's submissions in relation to the decision in Central Regional Council v B. That decision would, I have no doubt, be binding upon me if this were an appeal in relation to an application under Section 86 of the 1995 Act. The assumption of parental rights under Section 16 of the 1968 Act, and the granting of a parental responsibilities order under the new provision are, in contrast to the granting of an Exclusion Order remedies of a permanent character and I am not wholly persuaded that a procedure which specifically requires the sheriff to conduct a hearing after the granting of an interim order and places a time limit on the effect of the final determination falls to be categorised as a "well known and recognised jurisdiction". That being so I am of the view that the opening part of Lord Justice-Clerk Moncrieff's observations are perhaps more pertinent than the concluding comments.

[10] In reaching the above view I am not expressing the opinion that a decision of the sheriff under Section 76 is beyond the reach of any appellate body. The Sheriff Principal exercises no general supervisory jurisdiction and all that I am disinclined to accept is that I should exercise any general supervisory power over decisions in proceedings under this section. The same need not be said in relation to a possible appeal to the Court of Session. That court has power in exercise of its supervisory jurisdiction to review decisions of inferior courts and tribunals and administrative bodies (see Macphail (supra) para 2.48 and the authorities referred to therein). That approach gives content to the reference to an appeal from a decision of the sheriff on an application for an Exclusion Order in the legal aid provision contained in Section 92 of the 1995 Act.

[11] In consequence it becomes unnecessary for me to deal with the somewhat difficult questions relating to the steps taken by the sheriff on 26 November. I would only observe first that if it was the case that an adjournment of the hearing was sought by all present it is difficult to see how the sheriff could at her own hand have refused such a request and insisted that evidence be led. Second, the sheriff suggests that it was arguable that the interim order had ceased to have effect some six months after it was made or confirmed that is to say on or about 6 September 2002. These doubts are well founded in my judgement. The interim order which had been pronounced had been made once the respondent, and the children had been afforded an opportunity of being heard. It was in consequence an interim order under the provisions of subsection (6) which by virtue of subsection (12) falls to be treated as an "Exclusion Order" which consequentially ceases to have effect on a date six months after being made. Faced with a situation in which the interim order had expired, the proceedings had already taken more than the anticipated duration of a final order, and at the very least an indication that parties were not in a position to proceed to a hearing it is hardly surprising that the sheriff reached the conclusion that enough was enough. What is more problematic is whether the decision to refuse the application, as distinct from the decision to refuse to adjourn the evidential hearing, achieved what might have been best for the children. I accept the point which was made that this disposal raises the possibility of steps being taken towards compulsory measures of care. That, however, is a decision for other proceedings. Whatever the underlying good intentions of parties, I think that the sheriff was right to hold that the procedure set out does not contemplate a situation wherein an interim order will last longer than the maximum period of a final order and it was not an unreasonable act to bring proceedings to an end.