Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Cunningham v M [2004] ScotSC 76 (25 November 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/76.html
Cite as: [2004] ScotSC 76

[New search] [Help]

SHERIFFDOM OF LOTHIAN AND BORDERS

R118/04

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal

in the cause

AILSA CUNNINGHAM, Authority Reporter

to the Children's Panel

Applicant and Respondent

against

M

Respondent and Appellant

Act: Kidd; Biggart Baillie

Alt: S A Bell, Advocate; Garden Stirling Burnet, Haddington

EDINBURGH, 25 November 2004.

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the interlocutor of 26 March 2004 complained of; answers the questions in the stated case as follows: question 1, in the affirmative; question 2, in the affirmative; remits the case to the Sheriff for disposal; directs the Sheriff to remit the case to the Principal Reporter to make arrangements for a children's hearing to consider and determine the case.

NOTE
Introduction

[1] This is an appeal under section 51(11) of the Children (Scotland) Act 1995 ('the Act'). The appeal is taken from a decision of the Sheriff on an application by the Principal Reporter under section 65(7) and (9) of the Act for a finding as to whether the grounds for the referral of a child, K, to a children's hearing are established. The appellant, M, is K's mother.

[2] In terms of section 65(1) of the Act the Principal Reporter referred the case of K to the children's hearing because he was satisfied that compulsory measures of supervision were necessary and that one of the grounds specified in section 52(2) of the Act was established. That ground was that the child was, or was likely to become, a member of the same household as a child, D, in respect of whom an offence involving bodily injury had been committed (section 52(2)(e), (d); Criminal Procedure (Scotland) Act 1995, Sched 1, para 3). At the hearing neither M nor K's father, H, accepted that K was a member of the same household as D. K was too young to understand any explanation of the grounds of referral. The hearing accordingly directed the Principal Reporter to make an application to the Sheriff for a finding as to whether the grounds were established.

[3] The Principal Reporter's statement of reasons for the referral of K to the children's hearing included the following statement of facts:

1. K was born on 9 January 2004 and is the child of M and H who presently reside at [an address in Edinburgh].

2. M has an older child D born on 29 July 1997 who has subsequently been adopted. From his birth until about 28 June 1998 D was normally cared for by his maternal grandparents Mr and Mrs A at [an address in Haddington]. M however maintained a regular contact with D and regularly cared for him overnight. [Before the Sheriff 'occasionally' was substituted for 'regularly' by amendment.]

3. Grounds of referral in terms of section 52(2)(d) of the Children (Scotland) Act 1995 were held established in respect of D at Haddington Sheriff Court on 16 September 1998. Copy of these grounds of referral is attached and is referred to as part of present grounds for brevity.

4. K is a member of the same household as D.

[4] The statement of facts in the grounds of referral in the case of D was in these terms:

1. D was born on 29.7.97 and is the child of M. D usually stays with his grandparents, Mr and Mrs A, at [the same address in Haddington as in paragraph 2 of the statement in K's case]. M stays at [an address in Dunbar]. D stayed overnight with his mother, M, and her partner, H, at their home on Saturday 27.6.98.

2. D was admitted to the Royal Hospital for Sick Children, Edinburgh on 28.6.98. On examination, D was discovered to have deep bruising to the scrotal wall and associated swelling. In addition, he had a number of small bruises on the right thigh. The opinion of medical practitioners who examined D was that these injuries were the result of trauma and had been inflicted non-accidentally.

3. The facts outlined in paragraph 2 indicate that an offence of assault involving bodily injury was committed against D who is a child under the age of 17 years. This is an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.

[5] As I have mentioned, at the children's hearing in the case of K his parents, M and H, did not accept paragraph 4 of the statement of facts ('K is a member of the same household as D') and the children's hearing was satisfied that K would not be capable of understanding an explanation of the grounds for the referral. The hearing accordingly directed the Principal Reporter to make an application to the Sheriff for a finding as to whether the grounds not accepted by M and H, and not understood by K, were established.

[6] At the hearing before the Sheriff M appeared but H did not. Paragraph 3 of the statement of facts was amended as I have mentioned in paragraph [3] above. M accepted paragraphs 1, 2 and 3 (as amended) and the Sheriff heard evidence and submissions relative to paragraph 4. The Sheriff found the fact stated in paragraph 4 proved, found the grounds for the referral established and remitted the case to the Principal Reporter to make arrangements for a children's hearing to consider and determine the case, in terms of section 68(10)(a) of the Act.

[7] M's solicitor applied to the Sheriff to state a case for the purposes of an appeal under section 51(11)(a) of the Act. Rule 3.59(1) of the Act of Sederunt (Child Care and Maintenance Rules) 1997 ('the Rules') requires the appellant to specify the point of law upon which the appeal is to proceed or the irregularity in the conduct of the case concerned, as the case may be. The application stated that the appeal was 'to proceed upon the following points of law:

1. That the learned Sheriff was in error when she rejected the argument submitted to her on behalf of the respondent [M] in respect of the definition to be placed on the term 'household'. In the present case the Sheriff failed to give proper weight to the submissions on behalf of the respondent to the effect that the respondent had never lived in the same household as said child. Reference is made in this regard to the case of Templeton v E 1998 SCLR 672.'

The Sheriff thereafter issued a draft stated case and subsequently held a hearing on adjustments proposed by M's solicitor. The stated case signed by the Sheriff included the following questions of law:

1. On the facts admitted or proved was I entitled to find that the child K was a member of the same household as D?

2. Was I entitled to find that the child K is, or is likely to become, a member of the same household as the child in respect of whom an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 has been committed, thereby finding the grounds of referral to have been established?

[8] The point of law contained in the application for the stated case is of course ambiguous. It refers only to 'said child', who might be either K or D. I had assumed that the draftsman had intended to refer to K. However, at the hearing of the appeal on 21 July 2004 it emerged that 'said child' was intended to mean D. It soon became apparent that the point of law stated was not only ambiguous but also unarguable. Counsel for M frankly explained that he had been instructed only a day or two before the hearing and that he considered himself unable to argue that M had never lived in the same household as D. Counsel wished to argue instead that although M had been a member of the same household as D, she was no longer a member of that household and had no intention of returning to it. The solicitor for the Reporter submitted that that was a materially different point from that put forward in the grounds of appeal. He pointed out that the stated case was not focused upon it. He cited rule 3.59(9) of the Rules which provides:

(9) In the hearing of an appeal, a party referred to in paragraph (2) [in this case, the appellant] shall not be allowed to raise questions of law or irregularities in the conduct of the case of which notice has not been given except on cause shown and subject to such conditions as the sheriff principal may consider appropriate.

I decided to allow the appellant to submit a supplementary note of appeal and I remitted the case to the Sheriff to provide a report on the questions raised in the supplementary note. I continued the hearing until 9 September 2004.

[9] I doubt whether I would have taken that course if I had directed my attention to the opinion of the Extra Division in R v Grant 2000 SLT 372 at 374L-375E. Lord Prosser, giving the opinion of the Court, said:

[I]n stated case procedure, as was pointed out by the Lord Justice-Clerk in Drummond v Hunter 1948 JC 109 at 113: 'If a legal issue is to be raised, it ought to be properly raised by a question defining the issue precisely. Unless this rule is followed, there is no real guarantee that a point taken in this Court was a live point in the lower Court, nor is there any guarantee that, when the case was being stated, the Judge stating it had in view the point sought to be argued here.' In such situations, there is in our opinion a real risk that, as the Lord Justice-Clerk put it: 'The ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case.'

Despite their different context, these observations seem to us to be of fundamental importance where stated cases are sought in relation to a finding that grounds of referral have been established. [Having referred to the question in the case before the Court his Lordship continued:] Unsurprisingly with a case stated in such a way, it seems to us that the criticisms of what the sheriff did take very much the form suggested by the Lord Justice-Clerk in Drummond v Hunter, with arguments being advanced before the sheriff principal or in this Court, and alleged gaps and discrepancies being relied upon now, which the sheriff has not been asked to consider, and which the stated case might well have dealt with more specifically and more amply if there had been any indication that this was required. Even once the [draft] stated case was available, no attempt seems to have been made to have additional questions included, at a stage when the sheriff could still relate his findings and observations to those questions.

[10] In Drummond v Hunter the Lord Justice-Clerk went on to observe, immediately after the passage quoted above:

There are two obvious advantages in adhering to this rule. First, the Judge called on to state a case can do so in the light of the issue raised, and second, the issue is properly focussed for the consideration of this Court.

In the present case, not only was the issue raised flawed by a lack of precision: there was no attempt to ensure that there was focussed, even by adjustment, a point of law which counsel would be prepared to argue. In my view that was wholly unsatisfactory. As later paragraphs outlining the history of the procedure in the appeal will demonstrate, the course permitted on 21 July 2004 did nothing to improve the position and caused the disposal of the appeal to be further delayed.

[11] On 22 September 2004, in McCaskill v McCaskill, an appeal in an ordinary action, I refused to entertain arguments which had not been stated in the note of appeal. I said:

The purpose of a note of appeal is to identify for the respondent and the Sheriff Principal (and for the Sheriff, if he or she is asked to write a note) the points which will be in issue at the hearing of the appeal and the nature of the argument in relation to those points (Ordinary Cause Rules 1993, rule 31.4(3); Smyth v Pearce, Edinburgh Sheriff Court, 13 July 2004 at [14]). It is unjust to the respondent if the appellant raises at the hearing points of which the respondent has had no fair notice. I consider that argument on such points should be permitted only of consent or on cause shown, and on such conditions as to adjournment or otherwise as the Sheriff Principal sees fit in order to elide any prejudice to the respondent.

In an appeal by stated case, there is in addition to these elements of injustice and prejudice the consideration that the stated case will not have been focussed upon the new point the appellant wishes to raise. In future, accordingly, in appeals by stated case my approach to the exercise of the discretion confided by rule 3.59(9) or any comparable provision will be consistent with the approach to the raising of new points in appeals in ordinary actions which is set out in McCaskill. An applicant for a stated case will therefore be well advised to devote great care to the specification of the points of law upon which the appeal is to proceed. If it is proposed to instruct counsel for the appeal, it will be prudent to consult counsel about the matter.

[12] In the present case the appellant lodged a supplementary note of appeal in the following terms:

2. The Sheriff erred in holding that the appellant remained a member of the same household as her parents given that:

(a) the appellant does not currently reside with them; and

(b) that she has no intention of living with them in the future.

The Sheriff thereafter provided a supplementary note. When the hearing of the appeal next called on 9 September 2004 counsel for the appellant moved me to remit the case to the Sheriff once more in order that she might issue a new draft stated case which would then undergo adjustment and return to the appeal court after signature. The Reporter's solicitor opposed the motion. I considered it to be an extravagant suggestion: it was, in effect, a proposal that the appeal procedure should be started all over again. I therefore refused the motion. I did, however, adjourn the hearing until 16 September 2004 to enable counsel to consider his position. On that date counsel intimated that the appellant was insisting in the appeal. With some hesitation I allowed him to make further submissions re-stating his position. Having heard these submissions, the Reporter's solicitor moved for an adjournment. Counsel did not oppose the motion. I therefore granted the motion. Unfortunately the first suitable date was 9 November 2004. On that date I heard the submissions of the Reporter's solicitor and a brief response by counsel, and made avizandum. It will be seen from this procedural history that if the point of law on which the appeal was to proceed had been correctly identified by the applicant at the outset, as it should have been, this case would have been disposed of four months ago.

The Sheriff's decision

[13] In her stated case the Sheriff includes in her findings in fact the terms of the grounds established in the case of D (set out in paragraph [4] above) and the grounds accepted in the case of K (paragraphs 1, 2 and 3 in paragraph [3] above). As to D, she narrates in finding-in-fact 2 that from the time of his birth on 29 July 1997 until 28 June 1998 (when he was admitted to hospital) D was normally cared for by M's parents, Mr and Mrs A, at their address in Haddington. During that period M lived with H in Musselburgh and Dunbar. However, she had regular contact with D and occasionally cared for him overnight. The Sheriff finds:

A very strong bond then existed between the appellant and her parents, Mr and Mrs A, and the appellant was totally enmeshed with her family. Although the appellant maintained a separate tenancy during that period she spent considerable time with her parents in her parents' home and saw D every day.

[14] In finding-in-fact 3 the Sheriff states that in June 1998 M and H lived at an address in Dunbar. D stayed overnight with them at that address on Saturday 27 June 1998. On the following day he was admitted to hospital with the injuries described in paragraph 2 of the grounds established in his case. After treatment he was transferred to the care of foster carers and he was subsequently adopted. The findings-in-fact continue:

4. The offence of assault had been committed against D on or about 27 or 28 June 1998 when he was under one year of age and whilst in the care of the appellant and her partner or the appellant's parents.

5. The appellant returned to stay with her parents temporarily following the injuries to D being discovered.

6. Since the summer of 2002 the appellant and H have lived [at an address in Edinburgh] and see the appellant's parents less frequently.

7. Following K's birth in January this year [2004] child protection procedures were invoked and currently K lives with carers in Lasswade. The appellant and H see K daily and Mr and Mrs A [M's parents] have supervised contact with K once per week. The appellant sees her parents several times per week. She continues to receive support from her parents and when K recently required to be hospitalised on 15 March 2004 Mr and Mrs A attended the Royal Hospital for Sick Children. The appellant also receives support from Mrs H, the mother of her partner.

8. The appellant was very dependent upon her parents when D was born and during his infancy prior to 28 June 1998. She is less dependent on her parents but still sees them regularly.

9. K is a member of the same household as D.

The Sheriff's findings in fact and law are in these terms:

1. K is or is likely to become a member of the same household as D in respect of whom the offence of assault has been committed on or about 27 or 28 June 1998.

2. The condition mentioned in section 52(2)(e) of the Children (Scotland) Act 1995 is satisfied and established.

[15] In her note the Sheriff narrates the evidence and submissions before her. She observes:

It was abundantly clear on the facts that D's household included the appellant and her parents and the issue was whether that household still existed.

Having referred to Macgregor v H 1983 SLT 626 and A v Kennedy 1993 SC 131 the Sheriff says:

I took the view that the loosening of the concept of family unit or household as was clear from the decision in A v Kennedy reflected the liberalisation of social trends within families in the eighties and nineties. The decision of Lord President Emslie in 1983 reflected the more settled and defined concept of a household or family unit in the late 70s and early 80s [. . .] the decision of Lord President Emslie defined 'household' as a family unit or something akin to a family unit and visualised a group of persons bound together by some sort of tie who normally live together even if individual members may be temporarily away from home. On the other hand a decade later Lord Justice-Clerk Ross's decision in A v Kennedy in my view reflected not only the circumstances of that case but the loosening of social ties which bound families together under the same roof but which nevertheless did not detract from their being capable of constituting a 'household' at more than one location, leading to the observation that a household may continue to be construed as the same household even if one or more of the original members may have separated from it permanently and now lived apart from other family members.

This, in my view, is precisely the situation which prevails here and a situation which prevails commonly now with more casual family relationships, fewer marriages, the increasing readiness of children to move from the family home into separate homes or tenancies, but still acknowledging the reliance on parents for emotional and practical support and day to day contact.

It seemed abundantly clear to me that the appellant's life continues to be linked closely with that of her parents and although her dependence on her parents may have lessened over the last five or six years there is nevertheless a close association which led me to the view that the facts and circumstances relating to the household as constituted in 1998 still pertain and that the A family dynamics still constituted a 'household'.

Indeed the observation by the appellant and submission on her behalf that her role and that of her parents had become inverted comparing K's likely welfare arrangements with that of D in my view only serves to emphasise the need to look at this situation from a common sense point of view and to observe that the household as presently constituted is not significantly different to the household as constituted in 1998.

[16] In response to the complaint in the supplementary note of appeal that she had erred in holding that the appellant remained a member of the same household as her parents (paragraph [11] above) the Sheriff points out in her own supplementary note that she had not made any finding-in-fact to that effect. She correctly identifies the issue for decision as whether K is, or is likely to become, a member of the same household as D. She writes:

Of course that issue or question cannot be determined without proper consideration of the appellant's household as the appellant is the mother of K and is the person who has currently most contact with K and with whom K would most likely live if he were not subject to compulsory measures of supervision, which currently include residence with foster carers.

Furthermore, D was in the care of the appellant or is likely to have been in the care of the appellant, at the time the assault took place on 27 or 28 June 1998. It is accepted that D had been staying overnight with the appellant and her partner prior to D requiring treatment in hospital for a non-accidental injury. [...] Accordingly there appears to be no doubt that the appellant was an important and significant part of D's household in 1998 along with the appellant's parents, Mr and Mrs A.

[17] As to the two assertions of fact in the supplementary note of appeal, the Sheriff points out that the first, that the appellant does not currently reside with her parents, was accepted, as indeed is apparent from the stated case. The Sheriff observes that the appellant did not reside with them at the time of the assault on D either, although she spent a considerable period of time with them as they provided D's day-to-day care. The second assertion, that the appellant had no intention of living with them in the future, is not stated as a finding-in-fact. The Sheriff explains that the appellant gave evidence to that effect, but the Sheriff was not able to accept that evidence. She preferred evidence before her to the effect that her parents were still very important to her and they were very involved in each other's lives.

[18] The Sheriff concludes:

In my view it was not necessary for me to make a finding-in-fact dealing with whether the appellant remained a member of the same household as Mr and Mrs A, the issue being whether K is, or is likely to become, a member of the same household as D. Now clearly I have found that the appellant was an important member of D's household, as were Mr and Mrs A. K is the son of the appellant and she is an important and probably the most significant member of K's natural household. As a matter of fact and law I have made a finding that K is a member of the same household as D and can make that finding without having significant regard to the position of Mr and Mrs A, but as the relationship between the appellant and her parents formed an important part of the proof, I have given my view of what constitutes the K's household compared with the D's household. In the broader sense I do so at page 10 onwards in the note attached to the stated case [the passage quoted in paragraph [15] above] and have come to the view that the K/A family dynamics both in 1998 and 2004 constitute a 'household' and essentially the same household though differently constituted.

Submissions

[19] Counsel for the appellant submitted that the question whether K was, or was likely to become, a member of the same household as D involved two subsidiary issues: the identification of the household at the date of the assault on D, and whether the appellant remained a member of that household. The question was whether the appellant remained a member of the same household of which D had been a member at the time of the offence. The Sheriff had taken the view that it was enough that her life continued to be linked closely with her parents. That was wrong: family ties alone were not enough. Counsel discussed Templeton v E 1998 SCLR 672, Ferguson v S 1992 SCLR 866 and A v Kennedy 1993 SC 131. There was no proper basis on which the Sheriff could conclude that the appellant's separation from her parents was temporary. There were no findings-in-fact germane to the issue of whether there still existed a household comprising the appellant and her parents. There was no evidence on which the Sheriff would have been entitled to make the findings that would be necessary before the questions in the stated case could be answered in the affirmative. The Sheriff's view of the evidence was not sacrosanct (M v McGregor 1982 SLT 41) and this court might be prepared to look at the matter de novo on the basis of the evidence narrated by the Sheriff. The appellant's evidence as to her intentions had not been challenged, and the Sheriff had not explained her rejection of it. Counsel referred to Greenline Carriers (Tayside) Ltd v City of Dundee District Council 1991 SLT 673. He pointed out that I might remit to the Sheriff to state further findings-in-fact, and cited Kennedy v A 1986 SLT 358. The Sheriff had reached a conclusion that no reasonable Sheriff would have reached. The questions in the stated case should be answered in the negative.

[20] The solicitor for the Reporter opened by courteously drawing attention to the unfortunate course the hearing of the appeal had taken. There is force in his observations, as I have acknowledged. Turning to his reply to counsel's submissions, he identified the issue as whether K was, or was likely to become, a member of the same household as D. One or more of the adults in whose care D was either had assaulted him or had allowed the assault to take place and had been unable to protect him. He referred to Norrie, Children's Hearings in Scotland, pages 22-25. It was necessary for the Sheriff to be satisfied that D had been the victim of a Schedule 1 offence, and that K was or was likely to be a member of the same household as D had been when he had been assaulted. Here, at the time of the referral in respect of D, the appellant had been living apart from her parents, with her partner, H. Counsel had accepted that at that time she had been a member of the same household as D. It was also common ground that at that time the other members of D's household were the appellant's parents. The situation at the time of the referral in respect of K was the same. It was immaterial that the Sheriff had not accepted the appellant's evidence about her future living plans. Reference was made to Kearney, Children's Hearings in the Sheriff Court (2nd ed), pages 557-558. The questions in the stated case should be answered in the affirmative.

Discussion

[21] Section 52(1) of the Act provides that the question whether compulsory measures of supervision are necessary in respect of a child arises if at least one of the conditions mentioned in subsection (2) is satisfied with respect to him. Subsection (2) provides:

(2) The conditions referred to in subsection (1) above are that the child - [...]

(d) is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act (offences against children to which special provisions apply) has been committed;

(e) is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph (d) above has been committed; [...]

The offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 include:

2. Any offence under section 12, 15, 22 or 33 of the Children and Young Persons (Scotland) Act 1937.

3. Any other offence involving bodily injury to a child under the age of 17 years.

It is clear that section 52(2)(e) is concerned with the protection of a second child from harm where a child who is a member of the same household has already been the victim of a criminal offence.

[22] A Reporter who seeks to establish that the condition mentioned in section 52(2)(e) is satisfied with respect to a second child must satisfy the court of two matters: (1) that one of the offences mentioned in Schedule 1 has been committed against the first child; and (2) that the second child is, or is likely to become, a member of the same household as the first child. In the present case the first matter was admitted. It is common ground that the first child, D, was the victim of an assault. Proof that a particular person was identified as the perpetrator or was charged with or convicted of the offence is unnecessary. The live issue before the Sheriff was the second matter: whether the second child, K, was or was likely to become a member of the same household as D.

[23] While there is no statutory definition of the expression 'household' in the Act, it has been authoritatively considered by the Inner House in three cases. In McGregor v H 1983 SLT 626 Lord President Emslie, delivering the opinion of the Court and commenting on section 32(2)(d) of the Social Work (Scotland) Act 1968, the predecessor of section 52(2)(d) and (e), said (at page 628):

All that is required by section 32(2)(d) is that the child shall be 'a member of the same household' as the victim of a relevant offence. The word 'household' is plainly intended to connote a family unit or something akin to a family unit - a group of persons, held together by a particular kind of tie who normally live together, even if individual members of the group may be temporarily separated from it. [ . . . ] The mischief with which section 32(2)(d) is concerned has nothing to do with the presence in the same house of the victim of a relevant offence and the child in respect of whom a reference has been made. [ . . . ] The test is membership of the household and not whether a child is, at the time of the referral or at the time of the proof in an application before the sheriff, 'living' in the same household as the victim of the relevant offence.

[24] In Kennedy v R's Curator ad Litem 1992 SC 300 Lord President Hope, delivering the opinion of the Court, referred to Lord President Emslie's dicta in McGregor v H and said (at pages 306-307):

Similar dicta are to be found in R v Birmingham Juvenile Court, ex parte S (a Minor) [1984] 3 WLR 387 [[1984] Fam 93]. In that case it was held that the question whether people were members of the same household was a question of fact and degree and that the concept of household was of a group of persons and not the location in which those persons lived. Sir John Arnold P said at p 391E [98D] that the context of the care and welfare of the child was relevant to the question of what is a household to which one child and the other must belong. He went on to say this [at p 391G-H [98F-G]]: 'It is of course quite true that, if there is a complete severance of locality between the household one has to consider at one stage and that which has to be considered at a later stage, it is more obvious perhaps, in a case in which there has been a real change of household, that that is the fact if the households are differently located. But at the heart of the concept it is the persons who comprise the household which have to be considered I think and not the place where the household is located as a matter of residence.'

In our opinion the same approach is appropriate where the question arises under reference to section 32(2)(dd) [the predecessor of section 52(1)(f) of the Act]. Accordingly the fact that persons are living for the time being in separate houses is not decisive of the question whether they are members of the same household. The important question, since the issue is whether the child is in need of compulsory measures of care in terms of section 32 of the Act, is whether the ties of affection and regular contact which hold the parties together as a group of persons still continue.

His Lordship goes on to observe that 'the criterion is that of relationship rather than locality' and that the object of the provision is 'to protect the child against the risk of abuse or corruption due to the informality and frequency of contact which occurs within that relationship.'

[25] In A v Kennedy 1993 SC 131 Lord Justice-Clerk Ross, delivering the opinion of the Court, referred to McGregor v H, R v Birmingham Juvenile Court and Kennedy v R's Curator ad Litem. He said (at pages 135F-136A):

As Lord President Emslie observed in McGregor v H the word 'household' in section 32 connotes a family unit or something akin to a family unit. In his opinion he also observed that 'household' was a group of persons held together by a particular tie who normally lived together even if individual members of the group might be temporarily separated from it. These remarks were of course made under reference to the facts of that particular case. In our opinion, a household may continue to constitute the same household as before even if one or more of the original members have separated from it permanently. For example, if parents and a number of children live together in family, they would clearly constitute a 'household'. If in the course of time the eldest child was to leave home to get married and was to set up a home of his own, in our opinion there would still remain an identifiable household which was the same household as that which existed when the eldest child was still a member of the group. In other words, in any household or family unit there will be a certain amount of coming and going. The group may be expanded by the addition of new members of the family; likewise the group may be reduced in size if a member of the group dies or leaves home and sets up a separate establishment. Despite such changes, it may be proper to conclude that the household has all along remained the same household. We are accordingly satisfied that changes of membership of the group which constitutes the household need not lead to the conclusion that the household has become different from the household which previously existed.

[26] In my opinion it is sufficient in the present case to follow the general guidance given in Kennedy v R's Curator ad Litem. The dicta in McGregor v H and A v Kennedy, though of course equally authoritative, were I think expressed under reference to the facts of these particular cases. In particular, although at the hearing the appellant's counsel discussed A v Kennedy in detail, there is no question in the present case, as I shall demonstrate, of the group of people under consideration having been expanded or reduced in size. Accordingly the important considerations here are that the question whether people are members of the same household is a question of fact and degree; the concept of 'household' is of a group of persons and not the location in which they live; the fact that persons are living for the time being in separate houses is not decisive of the question whether they are members of the same household; the important question is whether the ties of affection and regular contact which hold the parties together as a group still continue; the criterion is that of relationship rather than locality.

[27] Since the question is one of fact and degree, it follows that if the Sheriff has directed herself properly in law and reached her decision in good faith, her decision is beyond challenge unless on appeal it is held to be a decision no reasonable Sheriff, acting reasonably, could have arrived at. The questions of law in the stated case are therefore accurately stated in the form, 'Was I entitled to find' that K was, or was likely to become, a member of the same household as D. The first question correctly emphasises that the issue is whether the Sheriff was entitled so to find 'on the facts admitted or proved'. It is important to notice that there are no other questions in the stated case. In particular, there is no question asking whether there was any evidence entitling the Sheriff to find particular facts proved, or whether she was entitled to reject any passage in the evidence of the appellant. The submissions for the appellant that were directed to these matters were accordingly nothing to the purpose, and I do not consider them.

[28] There is no room for any suggestion that the Sheriff did not direct herself properly in law, or did not reach her decision in good faith. The question therefore comes to be whether her decision is one at which no reasonable Sheriff could have arrived on the facts admitted or proved. In order to answer that question it is only necessary to identify the household of which D was a member, and the household of which K would be a member, and decide whether the Sheriff was entitled to hold that the two households are one and the same.

[29] This is a reasonably straightforward exercise. The household of which D was a member included his mother M, the appellant. That was conceded by her counsel, and that concession could scarcely have been withheld. She had regular contact with D, and occasionally cared for him overnight. Two other important members of D's household were M's parents, Mr and Mrs A. They normally cared for D in their home. Although M lived elsewhere with her partner, H, 'locality is not the criterion' (Kennedy v R's Curator ad Litem). What is of significance is that she spent considerable time with Mr and Mrs A and saw D every day. A very strong bond existed between M on the one had and Mr and Mrs A on the other: M was 'totally enmeshed with her family'. All these facts are stated in finding-in-fact 2. It is clear that ties of affection and regular contact held them all together as a group (Kennedy v R's Curator ad Litem).

[30] If K were to be moved from his present carers into the hands of M, the household of which he would be a member would obviously include M. He would always be in her care. Mr and Mrs A also have ties of affection with K. At present they see him once a week. If he were to be in the care of M they would probably see him several times per week, because M visits them with that degree of frequency. Just as she did before the assault on D, M continues to live elsewhere with her partner, H. She is less dependent on Mr and Mrs A than she was before the assault on D, but she still sees them regularly. All this is apparent from findings-in-fact 7 and 8.

[31] Accordingly, the ties of affection and regular contact which held M, Mr A and Mrs A together as a group when D was with them still continue. The only differences are that K would be cared for by M in the house she shares with her partner H, and that M is less dependent on her parents than she was before the assault on D. These differences, however, are not of material importance. The fact that K would be living in a different house from that in which D lived is not of significance: locality is not the criterion. There is no substantial difference between M seeing her parents daily and seeing them several times per week. Although she is 'less dependent' on them, she clearly continues to be dependent on them. Thus K would become a member of the same group of people who continue to be bound to each other, and who are already bound to him as they were to D, by ties of affection and regular contact.

[32] I consider, accordingly, that the Sheriff was well entitled to find that K is likely to become a member of the same household as D. I have therefore allowed the appeal and answered the questions in the stated case in the affirmative. In terms of section 51(14) of the Act I have remitted the case to the Sheriff with a direction to remit it to the Principal Reporter to make arrangements for a children's hearing.