Scottish Sheriff Court Decisions

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Cite as: [2010] ScotSC 118

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SWA3127/09 & SWA3128/09

JUDGMENT

SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

LM & JH

PURSUERS

against

The Authority Reporter

DEFENDER

GLASGOW, 2 July 2010.

The Sheriff Principal, having resumed consideration of the cause, Answers questions 1, 4, 5 and 7 in the stated case for the appellant LM in the negative; Answers questions 1 to 6 in the stated case for the appellant JH in the negative and Answers question 7 thereof in the affirmative; Remits the case to the sheriff to proceed as accords.

NOTE:-

[1] At a Children's Hearing on 19 October 2009, the panel continued a supervision requirement in respect of A but varied its terms to require that A should live with foster parents. Whilst the reasons for the decision are perhaps not expressed as clearly as one might hope, the reason A was not entrusted to the care of her parents was due to the nature of the grounds of referral and historical concerns regarding the parents. The Hearing also noted that they had serious concerns regarding recent sexualised behaviour of A. The grounds which had been established at Glasgow Sheriff Court on 2 October 2009 made reference to injuries sustained by A but no reference was made in the established grounds to the sexualised behaviour upon which reliance was placed by the Hearing.

[2] Both parents appealed the decision of the Children's Hearing to the sheriff in terms of Section 51(1) of the Children (Scotland) Act 1995 (hereinafter "the Act"). The sheriff refused both appeals. Both parents then appealed the decision of the sheriff to myself. The submissions before me were much fuller than before the sheriff. A very clear impression which I formed from the stated case prepared by the sheriff in respect of each of the appeals was that, before the sheriff, many of the lines of argument were dealt with on a very superficial basis. The appeal hearing before me lasted the best part of three days. The hearing before the sheriff lasted less than one day. I had full citation of authority given to me. The sheriff had virtually no authority cited to her. Indeed the sheriff records at paragraph 9 of the stated case in respect of the appeal by the appellant father that O v Rae was drawn to the court's attention by reference only to the names of the parties concerned and that S v Miller was not before the sheriff although mentioned as a case "which he (the solicitor) thought had been reported some time in 2001". It would also appear from the stated case that reference to the Human Rights Act 1998 was only made in relation to the argument regarding contact. It was the central plank of the submissions before me.

[3] Put shortly the submissions made on behalf of the mother were that the Children's Hearing ought not to have placed reliance upon the sexualised behaviour which had been observed nor upon the historical allegations, which one finds in the papers which had been before the Hearing, with regard to sexual abuse of another of the children of the mother appellant.

[4] Mr Ewing, solicitor-advocate, on behalf of the mother, acknowledged that in terms of Section 69(1) of the Act the Hearing was entitled to take into account information contained in any report obtained under the Act and any other relevant information available. Section 69(1) is in the following terms:-

"Where the grounds of referral of the child's case stated by the Principal Reporter are accepted or are established in accordance with section 68 or section 85 of this Act, the Children's Hearing shall consider those grounds, any report obtained under section 56(7) of this Act and any other relevant information available to them and shall -

(a) continue the case to a subsequent hearing in accordance with subsection (2) below;

(b) discharge the referral of the case in accordance with subsection (12) below or;

The submission was skilfully developed by Mr Ewing, for the mother appellant, that by the panel having had regard to matters which had not been established by the sheriff and which were in dispute, the civil rights of the appellant mother had been breached in that she had not received a fair and public hearing as is her entitlement in terms of article 6 of the Convention for Protection of Human Rights and Fundamental Freedoms (hereinafter "ECHR"). The terms of Section 69 or its statutory predecessor (Section 43(1)) of the Social Work (Scotland) Act 1968 had been discussed in the courts firstly in the case of K v Finlayson 1974 SLT (Sh Ct) 51 and subsequently in the case of O v Rae 1993 SLT 570. I was particularly referred to the passage in the decision of the sheriff in K v Finlayson where the sheriff stated:-

"I find it unthinkable that a person who has denied the original grounds of referral against her...should then be judged as unfit to carry out any part of her parental role...on grounds which have not been stated as grounds of referral and which she has no opportunity of denying or having examined in court."

When the same statutory provision came before the Inner House of the Court of Session in O v Rae, the approach adopted by the sheriff was not followed. In his opinion, Lord President Hope stated:-

"Counsel for the appellant's objection was, as we have said, based essentially on the unfairness which she said was inherent in the fact that the appellant had no opportunity to have the allegation judicially tested. But, seen in its proper context, there was no unfairness to him in what was done in this case. The question whether the children were in need of compulsory measures of care had already been resolved. What was in issue now was the arrangements which should be made in their best interests. Counsel for the appellant said that this information must be confined to information which was relevant to the grounds for the referral, but in our opinion that interpretation is not consistent with the express purpose of the subsection. ...Once the decision has been taken that he is in need of compulsory measures of care, any information which is relevant to the making of a supervision requirement...will be relevant information to which the Children's Hearing may have regards."

I was also referred to Kennedy v A 1986 SLT 356 where at page 362 Lord Justice-Clerk Ross stated:-

"The sheriff has referred to the rules of natural justice, but the principles of natural justice must yield to the best interests of the child, and in any event the principles of natural justice cannot be invoked to produce a result which would be contrary to the clear provisions of a statutory instrument."

[5] Mr Ewing then drew my attention to the terms of article 6 of the ECHR and reminded me that the cases to which he had referred all pre-dated the Human Rights Act 1988. At first he accepted that the European Court of Human Rights in Strasbourg has considered the Scottish system of Children's Hearings and concluded that the procedures as a whole were compliant with article 6. However, as I understood Mr Ewing's submission, this developed into it being said that the views expressed by the European Court of Human Rights in McMichael v UK (1995) 22 EHRR 229 and P, C and S v UK (2002) 35 EHRR 31 did no more than support the proposition that having a panel of lay representatives as part of a Children's Hearing was not in itself a breach of article 6 of the ECHR.

[6] Mr Ewing submitted that I should consider the case of Brown v Stott 2001 SC (PC) 43 and in particular the speech of Lord Bingham at page 64H where it was said:-

"What a fair trial requires cannot...be the subject of a single and varying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done."

Notwithstanding our system of stare decisis I was not obliged to follow the decision of the Inner House in O v Rae and Kennedy v A since Section 3 of the Human Rights Act 1998 required me to read and give effect to primary and subordinate legislation in a way compatible with an individual's Convention rights.

[7] Mr Ewing submitted that the appellant's article 6 rights had been breached in that fair notice had not been given of the matters which were to be considered by the Children's Hearing and further that the Children's Hearing took account of material which had not been established as a matter of fact and nor was it admitted. It was difficult to tell from the terms of the decision of the Children's Hearing what weight the Hearing had attached to the material for which they should not have had regard. If I came to the view that the appellant's article 6 or 8 rights had been breached then I should direct the sheriff to remit the case back to the Children's Hearing for a reconsideration. Article 8 was engaged because the decision under appeal denied to A and the appellants a proper family life. Notwithstanding what may have been the appellant's position before the sheriff, Mr Ewing made it clear that he was no longer taking issue with the decision of the Children's Hearing in relation to contact nor was it part of the appellant's submission that the Hearing could not have regard for the catalogue of concerns which the social work department had in relation to the appellant. He also accepted that the injuries which one finds described in the grounds established at Glasgow Sheriff Court on 2 October 2009 were a cause for concern and that the Hearing was entitled to take these into account. Mr Ewing's concerns were that against a background of allegations of sexual abuse amounting to rape, it was inevitable that the Hearing would be very concerned to learn of sexualised behaviour being exhibited by A. However, he did not know what this sexualised behaviour consisted of. Further specification required to be given. He submitted that it ought to have been in the grounds and would therefore have been established, or not, by the sheriff.

[8] In the event that I came to the view that there had been a breach of the appellant's article 6 rights and that I felt unable to do other than follow the decision in O v Rae, Mr Ewing had lodged a devolution minute submitting that the terms of the 1995 Act were incompatible with the ECHR.

[9] Ms Stirling, Advocate, for the father appellant, urged me to allow the appeal but remit the case back to the sheriff to enable the sheriff to make findings in fact on whether and to what extent A had displayed sexualised behaviour and also to hear evidence in relation to the historical allegations of sexual abuse. The sheriff should then be required to address whether, having determined these facts, the decision of the Children's Hearing of 19 October 2009 could stand. In her submission the decision of the Hearing was vitiated by the Hearing taking into account the historical allegations of abuse and the sexualised behaviour. Furthermore the Hearing ought to have made its position clear in relation to the other pejorative aspects of the Integrated Assessment Report and Action Plan which was before the Hearing. The grounds established in October 2009 were by agreement as opposed to determination by the court. The Integrated Assessment Report was only available at the dispositive hearing. Concern was expressed with regard to the narrative on pages 13 and 15 of that Report, where there is reference to sexual abuse and rape and the potential for fingertip bruising. It was accepted that A had been the subject of a supervision requirement from shortly after birth but from time to time had resided with foster parents and one or other or both parents.

[10] Ms Stirling allied herself to the submission made by Mr Ewing that when considering the primary legislation, Section 3 of the Human Rights Act 1998 required that it be interpreted in a manner compatible with Convention rights. She referred me to the case of Ghaidan v Godin-Mendoza [2004] 2 AC 557. Ms Stirling then referred me to the case of K v Authority Reporter 2009 SLT 1019. From this case she submitted that the civil rights of the appellant were in issue and therefore the article 6 guarantees applied. It was also said that the case was authority for the proposition that the test as to whether a parent's article 6 rights had been breached was to examine the proceedings to see if the parent was able to participate effectively in the proceedings. Whether the parent could participate effectively was an issue of fact. The allegations of rape, sexualised behaviour and the potential for fingertip bruising were all substantial issues and it was incumbent upon the Children's Hearing to say what weight they had attached to these aspects of the report. It was submitted that the sheriff required to have a hearing on evidence if asked to do so as the sheriff here had been asked. The submission was then developed into there being a breach of the child's section 8 rights as to deal with the matter in the manner in which the Children's Hearing had so done was a breach; the effect was for there to be a removal of the child from its parents.

[11] Ms Stirling referred to the case of O v Rae and S v Miller 2001 SC 977. She submitted that from the stated case it was apparent that the sheriff had failed to recognise that some issues were untested which ought to have been tested.

[12] Turning to the questions for the opinion of the court, she submitted that no explanation had been given by the Children's Hearing as to why it was in the interests of the child for her to be removed from a stable family home. After some discussion, when it was suggested that perhaps the grounds established in the Sheriff Court in themselves were sufficient to justify the removal of A from the family home, it was submitted that in order to comply with Section 16 of the 1995 Act it was incumbent upon a Children's Hearing to explain why alternative solutions had not been considered. Accordingly, the sheriff had erred in law in holding that the statement of reasons issued by the Children's Hearing was sufficient to justify the decision the child should be accommodated in foster care.

[13] In relation to contact it was submitted that no proper reasons had been advanced for the limited period of contact (two hours per week) which had been recommended by the Children's Hearing. An explanation of the factors which the panel relied upon was needed. Reference was made to the case of K & T v Finland (2001) 31 EHRR 18 which it was said was authority for the position that the Children's Hearing required to give an explanation of what factors required to be addressed by the parents in order for contact to be increased. Accordingly, the sheriff had erred in law in holding that the statement of reasons provided a sufficient basis for the level of contact and that in light of the age of the child the level of contact was not justified. It was submitted that the sheriff had erred in law in holding that the Children's Hearing did not predicate their decision on the assertion made by the social worker that the appellant had previously raped A's half sibling. I was also invited to hold that the sheriff was not entitled to refuse the appellant's motion to hear proof on the disputed material fact. I was invited to hold that the Children's Hearing was not the appropriate forum for the resolution of material disputes as to fact, the sheriff had this task, and in all the circumstances I was invited to hold that the decision of the Children's Hearing could not be said to have been justified.

[14] In his reply on behalf of the Reporter, Mr Dickson, solicitor, invited me to remit the case back to the sheriff in terms of Section 51(14) with an instruction that she should proceed as accords. In his submission there were five main issues which were as follows:-

1. The test to be applied by the sheriff and sheriff principal.

2. What information the Hearing was entitled to consider.

3. What was the basis of the Hearing's decision and was it justified in the circumstances.

4. Should the sheriff have called for evidence.

5. Is it compatible with ECHR to base the decision on (a) matters not contained in the statement of reasons and (b) disputed issues not contained in the statement of facts.

[15] In so far as the test which the court required to be applied, it was submitted that there was a difference between the test which a sheriff had to apply compared to that which a sheriff principal required to apply. The test for the sheriff was derived from Section 51(1) to 51(5) of the Act. In this chapter I was referred to the second edition of Children's Hearings and the Sheriff Court by Sheriff Kearney, W v Schaffer 2001 SLT (Sh Ct) 86, D v Martin, unreported, Glasgow Sheriff Court, Sheriff Principal E F Bowen QC, 18 December 2003 and Dalziel v SCRA, unreported, Airdrie Sheriff Court, Temporary Sheriff Principal Kearney, 12 December 2007 and the second edition of Professor Norrie Children (Scotland) Act 1995 from page 91. Three propositions could be taken from the authorities:

1. The sheriff was not to substitute his own decision for that of the Children's Hearing merely because

(a) he disagreed with the conclusions or

(b) because he would have arrived at a different conclusion if dealing with the matter at first instance;

2. The sheriff was not to reconsider the evidence which had been before the Hearing but he was obliged to

(a) ascertain if there had been any irregularity in the conduct of the proceedings before the panel,

(b) ascertain whether the Hearing had given proper or relevant consideration to all relevant factors,

(d) ascertain whether the Hearing had reached a decision which no reasonable Children's Hearing would have reached.

3. The test set out in Schaffer was not contrary to and could sit with what was said by Lord Penrose in S v Miller.

The test for the sheriff principal, on the other hand, was to be found in Section 51(11) of the Act. There the appeal could only succeed if there was a point of law or an irregularity in the conduct of the case. I was then referred to Professor Norrie Children (Scotland) Act 1995 (2^nd Edn) at pages 94, 95, 209 to 215. It was submitted that in the particular case there were grounds other than the sexualised behaviour displayed by A which justified the decision of the Children's Hearing. In any event the Children's Hearing was fully justified to have regard to the comment regarding sexualised behaviour.

[16] Turning to look at the second of the issues set out in paragraph [14] regarding the information which the Children's Hearing could consider, Mr Dickson submitted that the starting point was Section 69 taken with Rule 20 of the 1996 Rules for Children's Hearings. In so far as O v Rae was concerned, it was submitted that one could take from the case the following propositions:-

1. Once grounds of referral had been accepted or established the function of the Hearing was to investigate the child's case so far as necessary to determine what was in the best interests of the child.

2. In terms of Section 69 and Rule 20 the Hearing was not restricted to information in the grounds of referral but could have regard to any information relevant to determining what course of action should be adopted in the child's best interests.

3. Such relevant information might include allegations which were disputed.

4. There was no unfairness to an appellant in adopting this approach providing the appellant received a fair opportunity of correcting or contradicting what was said against him or her either at the hearing or in the reports being considered by the Hearing.

It was submitted that the decision in M v Kennedy 1993 SLT 431 could sit with that of O v Rae in that the ambit of the decision in the former was restricted to disentitling the Children's Hearing to look at information which had been expressly disapproved by the sheriff. In this regard I was also referred to Professor Norrie Children (Scotland) Act 1995 (2^nd Edn) at pages 3 to 5 and 116 and 117. It was explained that the statute and the rules allow a Hearing to act on the most up to date information. Circumstances surrounding children are always changing. The grounds established had as their main purpose the determination of whether the child may be in need of compulsory measures of supervision. When deciding what form of supervision should be adopted the Children's Hearing was entitled to consider information from wider sources. Thus it was said that if the grounds were that the child had committed an offence and it was felt that it was necessary for there to be compulsory measures of supervision, it would be a nonsense if the child's home environment could not be considered when deciding what form the supervision should take. I was again referred to Professor Norrie Children (Scotland) Act 1995 (2^nd Edn) at pages 116 to 118 where it was submitted that the law was correctly summarised. If a narrow reading of Section 69 was to be adopted it would drive a coach and horses through the whole ethos of the Children's Hearing system. Artificial constraints could not be placed in the system as it would then be unable to function as it would not be able to take account of matters relevant to determining what was in the child's best interests. I was reminded that grounds may have been established many months before the dispositive hearing to determine what was in the child's best interests. During this period a whole host of relevant information of itself not capable of forming a new ground of referral might come to the attention of the Children's Hearing. It was also pointed out that this provision enabled a Children's Hearing to give benefit to parents who had improved their circumstances. Indeed in the particular case it was pointed out that on occasion A had been returned to her parents for a period of time. In the particular case the Children's Hearing had not based their decision of 19 October 2009 on disputed facts. One could see this from the terms of their decision (Production 1b). In paragraph two on the second page it is recorded that the decision was made to continue the supervision requirement due to the serious nature of the established grounds and the grounds more recently established. It was not until one was dealing with the particular form the supervision was to take that reference was made to the sexualised behaviour of A. The issue had been raised at the hearing at which the parents were present along with their legal representatives. There had been a discussion with the parents in a non‑adversarial manner. It was pointed out to me that the sexualised behaviour allegation had not been put in issue before the sheriff albeit that the cause of the sexualised behaviour had been disputed in the discussion before the sheriff. The Children's Hearing did not require to resolve what caused the sexualised behaviour. The designers of the system had intended an informal, simple, non-adversarial discussion at a Children's Hearing. In the course of the discussion at the Children's Hearing on 19 October 2009 there was no challenge to the comment made by the foster parents and the nursery with regard to A displaying sexualised behaviour. In so far as the allegation of rape in the Integrated Assessment Report was concerned, it was quite clear from the papers that the Crown did not proceed with any criminal charge and furthermore that the Children's Hearing had allowed father and daughter to have residential contact after the allegation was made. It was also clear from the Report that non-accidental bruising (fingertip bruising) was only one possible explanation for what had been observed on A. Much weight was placed by Mr Dickson on the fact that both appellants were present and represented at the hearing and therefore were in a position to challenge any matter which was disputed. He reminded me that the decision records that a full discussion had taken place and this had not been challenged. He pointed out that there was no suggestion made in the decision of the Children's Hearing nor in the submissions which had been made in the course of this hearing, that the appellant parents had challenged the assertion made at the Children's Hearing regarding A displaying sexualised behaviour. The hearing was such that the appellants were able to fully participate and challenge the factors which had been considered by the Children's Hearing.

[17] Mr Dickson then turned to his third issue which examined the basis of the decision, the written reasons for the decision and their adequacy and whether the decision over all was justified. In so far as the basis of the decision was concerned, he referred me to the stated case for the mother appellant at paragraph 27 and at paragraph 25 in the stated case for the father appellant. He repeated his earlier submission that the rape incident was clearly no more than an allegation and that the reference to fingertip bruising was only said to be a possible explanation. He pointed out that the ability of the appellants to care for A had improved which is why she had been returned to reside with them after initially having been placed with foster parents. However, concerns had begun to develop and on 1 June 2009 a Child Protection Order was obtained from Glasgow Sheriff Court. Mr Dickson then pointed out that there had been four hearings after the Child Protection Order had been obtained where the warrant was renewed and not one of these decisions had been appealed. At each hearing a decision had been made that A should reside with foster carers and that the period of contact should be one hour under supervision. Concern with regard to sexualised behaviour had first been made at the hearing on 1 July 2009 which came after the grounds of referral had been sent to the sheriff for proof. The Hearing on 19 October 2009 had before it the grounds which were established at Glasgow Sheriff Court on 2 October 2009 and also the original grounds which had been established in 2005. On any view the 2009 grounds were serious and the Children's Hearing was entitled to view the incidents as arising out of a lack of parental care. Since these grounds had been accepted by the appellants they had therefore accepted that there was a lack of parental care. I was reminded that the parents were legally represented at this juncture.

[18] Mr Dickson referred me to Professor Norrie Children (Scotland) Act 1995 (2^nd Edn) at page 124 and to H v Kennedy 1999 SCLR 961. From these cases he drew the following requirements for a decision of a Children's Hearing:

1. The Children's Hearing must specify the material considerations they have had regard to.

2. Regard must be had to the context when providing such specification and in particular the fact that the appellants had an opportunity to be present at the hearing and to express their views.

3. The Hearing must express itself in a form which would be intelligible to persons who have not attended the hearing.

4. The Hearing had an obligation to deal with all substantial questions which were the subject of the decision.

The Children's Hearing was not required to go into every aspect touched upon in the papers and explain their position as that would be far too huge a burden. This would be particularly so when in some cases one was dealing with the whole history of the life of a child.

[19] Mr Dickson submitted that the serious nature of the grounds which had been established by the sheriff in October 2009 were in themselves sufficient to justify the decision to which the Children's Hearing had come. He drew my attention to the non‑accidental breaking of the ribs of A's sibling in 2005. He drew my attention to the injuries sustained by A and established by the sheriff on 2 October 2009, and in particular the finding that A's face had been burnt by a cigarette. He noted the high levels of anxiety and aggressive behaviour displayed by A and the head lice which infested her more than once. The mother appellant had inappropriately verbally chastised A to the extent that a nursery helper had on one occasion required to intervene. He stressed that the injuries narrated in the grounds established at Glasgow Sheriff Court in October 2009 did not state that the injuries were deliberately inflicted but rather they were consistent with a lack of care. Thus even if there was no reference made to the sexualised behaviour of A the decision reached by the Children's Hearing was justified. He submitted that the reference to "recent (my emphasis) sexualised behaviour" was important as it referred to what had been said at the Children's Hearing on 1 July 2009 and could not in any way be a reference to the rape allegation which was made in 2003. He submitted that the solicitor representing the father appellant at the appeal before the sheriff implicitly accepted before the sheriff that the sexualised behaviour had occurred. That submission had been adopted by the solicitor acting for the mother.

[20] Turning to look at contact, he submitted that the Hearing had more than justified its decision. He reminded me that there had been earlier awards of contact of one hour which had not been appealed and that the Hearing had increased the number to two hours per week although that was effectively what had been taking place notwithstanding the earlier order of only one hour per week. He submitted that two hours per week maintained the prospect of A being able to return to her parents when their position improved.

[21] In so far as the fourth issue, whether the sheriff should have called for evidence, was concerned, Mr Dickson submitted that the sheriff had not been moved to hear evidence. She had been invited to resolve the issue without the benefit of hearing evidence. It was not suggested any witnesses were present to give evidence. Therefore I should refuse to answer the question in both stated cases as to whether the sheriff was entitled to refuse the appellant's motion to hear proof.

[22] The fifth and final issue identified by Mr Dickson, and set out at paragraph [14] supra, related to the appellant's Convention rights. He submitted that the issues were whether it was incompatible with the Convention for a Children's Hearing to base its decision on matters not contained in the statement of reasons, whether the appellants had fair notice of the case against them and whether there were disputed issues not contained in the statement of facts. He submitted, under reference to S v Miller, that the system of Children's Hearings was ECHR compliant save for the lack of legal aid, which lack had now been remedied. Under reference to P, C and S v UK he submitted that the key issue was whether the appellants were able to participate effectively at the Children's Hearing. He submitted that what was said in McMichael was sufficient to enable a conclusion to be drawn that the European Court in Strasbourg considered that Section 69(1) of the Act was compliant with the ECHR. He reminded me that the parents had received, in advance of the hearing, the documents upon which the hearing was to proceed. The court was entitled to look at both the Children's Hearing and the appeal procedures available to participants in considering whether there had been a breach of article 6.

[23] Finally, I was addressed by Mr Cameron, for the Lord Advocate, in respect of the devolution issue which had been lodged on behalf of the appellant mother. It was agreed that I should decide the merits of the case and only if the two hurdles identified in Mr Ewing's submission had been overcome by the appellant mother, namely (1) that the article 6 rights of the appellant mother had been breached and (2) that I felt constrained to follow O v Rae because of our system of stare decisis, that the devolution minute required to be discussed. Mr Cameron submitted that in order for a devolution minute to succeed there would normally require to be a structural flaw in the system in respect of which the Scottish Ministers had failed to take action. However, he accepted that the present position arose in a more nuanced manner and it was more a fact specific flaw than a general structural flaw which was said to exist. Thus the Lord Advocate was reserving her position until I had determined the substantive matter before me. In a spirit of helpfulness, Mr Cameron submitted that should I come to the view that there had been a breach of article 6 and that the appellant mother had been unable to participate effectively there were two remedies which were open to me. In the first place, I could follow Finlayson and exclude the disputed material. If I was to follow that course then one could read down the Children's Hearing scheme as being compatible with the Convention. In such circumstances I could remit the case back to the sheriff with appropriate directions. No devolution issue would occur. Alternatively, if I felt bound by O v Rae then I could not issue directions to the sheriff to exclude the material to which exception was taken, at which point the devolution minute would bite.

[24] I have come to the view that while the authorities cited in argument may not give our system of Children's Hearings a completely clean bill of health so far as compatibility with the Human Rights Act 1998 is concerned, they do go further than just endorsing that a panel of lay people meets the requirements of article 6 of the Convention. In McMichael v United Kingdom (1995) 20 EHRR 205 there was a recognition by the European Court of Human Rights that a hearing is required to consider any relevant information made available to it. Paragraph 57 of the judgment is in the following terms:-

"Children's Hearings are required to consider any relevant information made available to them. Apart from the statement of grounds of referral, this information (which would include any report, document or information submitted by the Reporter) is not usually supplied to the child or his parents. However, the chairman is required at the hearing to inform the child and his parents of the substance of such reports, documents or information if it appears to him that this is material to the manner in which the case should be disposed of and that its disclosure would not be detrimental to the interests of the child."

Thus the European Court of Human Rights was fully aware of the statutory provisions, and in particular Section 69(1), when it made the following comment at paragraph 80:-

"As explained by the Government, the function of determining what measures of care would be in the best interest of the child has been conferred on the Children's Hearing rather than the ordinary courts because the legislature believed that this function is likely to be exercised more successfully by an adjudicatory body of three specially trained persons with substantial experience of children, following a procedure which is less formal and confrontational than that of the ordinary courts. The Court accepts that in this sensitive domain of family law there may be good reasons for opting for an adjudicatory body that does not have the composition or procedures (my emphasis) of a court of law of the classic kind. Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair - adversarial - trial "means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party.""

Perhaps not surprisingly, the court came to the view that Mrs McMichael had not received a fair hearing in that the requirement of an adversarial trial had not been fulfilled because social work reports had not been disclosed to her, a parent, at both the Children's Hearing and on appeal to the sheriff. Since that decision, practice has changed and relevant persons receive documents available to the Hearing and, on appeal, the sheriff.

[25] The First Division of the Inner House of the Court of Session had an opportunity to consider the system of Children's Hearings in S v Miller 2001 SC 977. In this case the child was referred to a Children's Hearing because it was alleged that he had committed an offence albeit that no criminal proceedings were to be brought against the child. The referral was therefore in terms of Section 52(2)(i) of the 1995 Act. The court considered that the proceedings before the Children's Hearing were civil in character because, although the Reporter intended to show that the child had committed an offence, the purpose in so doing was to establish a basis for taking appropriate measures for his welfare. In his opinion, Lord President Rodger, as he then was, noted the decision of the European Court in McMichael and went on to answer the question, "Does the structure of the Children's Hearing system comply with the requirements of article 6 in its application to civil proceedings?" At paragraph 48 of his opinion, Lord President Rodger held that it did, save for the fact that legal aid was not available. One of the principal issues in the case was whether legal aid should be available for those appearing at a Children's Hearing, at paragraph 74, Lord Penrose said:-

"Superficially this is the type of case in which serious thought would have to be given to the provision of legal aid from the outset if that possibility existed in the Children's Hearing system. In addition there will be complex documents and reports to consider. It would be unrealistic to expect a child to understand these if made available to him. It is not a sufficient answer that disputed issue of fact will be determined by the sheriff. At the initial stage before the Children's Hearing the child will require to take decisions which may affect the impression he creates in the minds of the members thereafter."

I take Lord Penrose to be saying that without legal advice the child would not be able to participate effectively in the proceedings. Taken together I am of the view that the cases of McMichael and Miller go further than only determining that a panel constituted by lay persons was not a breach of article 6. I do not think that the decision entitles one to hold that in every respect a Children's Hearing will be compatible with the ECHR. That is because as Lord Bingham pointed out in Brown v Stott, the facts and circumstances of each case have to be considered. No doubt there will be challenges to the compatibility of particular Children's Hearings in the future but they will require to be based upon discrete points if they are to succeed.

[26] In P, C and S v United Kingdom (2002) 35 EHRR 31 the European Court of Human Rights gave some further guidance on how article 6 fell to be interpreted in the context of our system of Children's Hearings. At paragraph 91 the court stated:-

"Secondly, the key principle governing the application of article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance of a lawyer and manages to conduct his or her case in the teeth of all the difficulties, the question may nonetheless arise as to whether this procedure was fair. There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedure."

Thus taking the guidance offered by the European Court in McMichael and P, C and S and the Inner House of the Court of Session in Miller, it may be said that one means by which it can be tested whether an individual's article 6 rights have been breached is to consider whether the relevant individual has been able to effectively participate in the proceedings. That is also consistent with what was said in K v Authority Reporter 2009 SLT 1019 where an Extra Division of the Inner House held that, in the context of a Children's Hearing, the appellant's rights under articles 6, 8 and 14 "will only have been infringed during the hearing...if the appellant was, during that hearing, unable to participate effectively during the proceedings. In our opinion the issue of whether or not the appellant was able to participate effectively during the hearing is a question of fact, which falls to be determined by the sheriff in the context of the appeal under Section 51 of the 1995 Act that is before him."

[27] I will now consider the circumstances of the present case. The child in question, A, was born on 16 December 2004 and was taken into care in March 2005 following grounds of referral being established at Glasgow Sheriff Court on 1 March 2005. The grounds were that A was a member of the same household as a child against whom an offence referred to in Section 52(2)(d) of the 1995 Act had been committed. The appellants in the present proceedings are the parents of both children. It had previously been established that when in the care of his parents the child, against whom the offence had been committed, had sustained fractures to two ribs when the child was less than three months old. On 22 March 2005 a Children's Hearing made a supervision requirement and directed that A should reside with foster parents. On 4 April 2006 that condition of residence was removed and A was allowed to reside with her parents albeit with the supervision requirement continuing. A further variation was made on 28 June 2007 when a Children's Hearing directed that A should reside with her father, one of the appellants in these proceedings. This order was further reviewed on 28 August 2007 when a Children's Hearing directed that A should live with her mother, the other appellant. On 1 June 2009 a child protection order in terms of Section 57 of the Act was obtained from a sheriff at Glasgow Sheriff Court and, in implement of that order, A thereafter resided with foster parents. The warrant granted by the sheriff was renewed in terms of Section 59(4) of the Act on 3 June 2009, Section 66(1) on 11 June 2009 and Section 66(5) on 1 and 22 July 2009. It was against that background that the Reporter referred the case of A to Glasgow Sheriff Court for the establishment of grounds. Grounds were established on 2 October 2009 and the statement of facts included a number of injuries being noted on A between July 2008 and April 2009, the most serious of which being on 26 April 2009 when A presented herself at nursery with a cigarette burn to her face. It was further established that the injuries occurred whilst A was in the care of the appellants. Having established the grounds, the sheriff remitted the case back to a Children's Hearing which was convened on 19 October 2009. At that hearing, the panel made the following decisions:-

"1. A safeguarder was consider (sic) but not appointed given that both parents had legal representatives present and that a full discussion was able to take place.

2. Continue the supervision requirement due to the serious nature of the established grounds and taking cognisance (sic) the recent grounds established at court.

3. Vary the supervision requirement to name the place of residency to be with foster carers (sic) DD as we are satisfied that A is receiving a good level of care at D's home. There are serious concerns re recent sexualised behaviour of A noted by the foster carer, together with the catalogue of injuries sustained by A (when in the care of her parents) and established in the grounds. Compulsory measures of care are still required to keep A safe.

4. Condition of contact to be minimum of two hrs per week with parents as this will be of benefit to A in keeping a bond with her parents. Contact should be supervised in light of the reasons given above."

The Hearing had before it, and those attending had a copy of, an Integrated Assessment Report and Action Plan prepared by NHS Greater Glasgow & Clyde. My attention was drawn to several aspects of the Report. In the section dealing with "Social History" on page 13 it stated:-

"In August 2003 B made an allegation against Mr H (the appellant father). She alleged that he raped her on a number of occasions in the family home. This resulted in the joint protection investigation."

It was explained that B was Mrs M's (the appellant mother) daughter. A further entry to which my attention was drawn on page 15 was:-

"28^th May 2009: A is medicated at Yorkhill Hospital and is extremely distressed for the duration. Once again J's (the appellant father) explanation as to how A sustained the injury is plausible. During the course of the medical Dr Leyland identifies bruising above A's knees that may be "fingertip bruising" due to the unusual positioning."

The next entry to which my attention was drawn was in the section headed "Analysis of Assessment":-

"Each of L's (the appellant mother) five children have been removed from her care in their early childhood years due to serious deficiencies in the care of her children. Despite the efforts to support L in the care of her children, she has consistently demonstrated that she is unable to keep her children safe or meet their basic physical, emotional and social needs. Whilst in her care L's children have suffered serious physical abuse, sexual abuse, neglect and emotional abuse. L has not demonstrated a capacity to put appropriate parenting skills into practice as detailed below:-

1991: BM was accommodated from L's care at eighteen months by Glasgow City Council following severe neglect which has resulted in failure to thrive, malnutrition and "scarring on the brain". She was placed with her maternal grandmother on a permanent basis. At 14 years she alleged that J (the appellant father) raped her.

2003: BM disclosed that she was raped by J (the appellant father) whilst visiting her mother. K (Ms M's daughter born on 10 May 2000) witnessed the rape and was hit on the head by J (the appellant father) at the same time. K was accommodated from this point."

The Children's Hearing of 1 July 2009, which had continued the place of safety warrant granted by the sheriff on 1 June 2009, noted:-

"The panel heard from the nursery that on returning from contact A is displaying inappropriate sexualised behaviour. This was also reinforced by the foster carer who stated that A also randomly makes inappropriate comments. It was reported from nursery and the foster carer that A shows sings (sic) of extreme anxiety before and after contact."

A Children's Hearing was then convened on 22 July 2009 when the place of safety warrant was again renewed and the Children's Hearing noted:-

"A is now quite settled with her foster carer. We heard that she is becoming more confident although new situations can distress her. Contact continues to be under the supervision of the social work department and this happens once per week. Her foster carer reported that A's behaviour prior to contact changes and she shows signs of anxiety but afterwards is now more settled."

Papers containing the foregoing passages were before the Children's Hearing on 19 October 2009 when both appellants were present and legally represented and had copies of all papers.

[28] Both appellants challenged the entitlement of the Children's Hearing on 19 October 2009 to make reference to and rely upon the recent sexualised behaviour of A in deciding what measures were in A's best interests. It was not disputed by Mr Dickson that reliance had been placed upon that observation by the Children's Hearing. I note that by the time the Hearing came to consider the sexualised behaviour, the decision had already been taken to continue the supervision requirement. The supervision requirement had last been reviewed on 28 August 2007 when A was required to reside with her mother. On 19 October 2009 the Children's Hearing decided to vary that requirement and direct that A live with a foster carer. From the terms of the decision of the Children's Hearing the concerns regarding A's sexualised behaviour were a factor in them making that variation. The appellants accepted that in terms of Section 69(1) the sexualised behaviour would properly fall within "other relevant information" as provided in the section. It was said that if the Hearing was to rely on such an observation it should have been referred to the sheriff in order that the observation could be tested in evidence. It should have formed part of the facts to be established. That was particularly so in the context of this case where there was an allegation by a sibling of A's of sexual abuse said to have been perpetrated by A's father. The sheriff had erred not to hear evidence to test the assertion of A displaying sexualised behaviour.

[29] As has been seen, the observation of sexualised behaviour exhibited by A when returning from contact was first noted by the Children's Hearing on 1 July 2009. It came from two sources, namely the nursery and foster carer. There was a subsequent hearing on 22 July 2009 to consider the renewal of the order. The appellant father was legally represented at the hearing on 22 July 2009 when the warrant of 1 July 2009 was renewed. It would not appear that any issue was taken on 22 July 2009 regarding the reference to and reliance upon sexualised behaviour at the previous hearing. At the hearing on 19 October 2009 both appellants were legally represented. They each had a full set of papers. The decision of the Children's Hearing records that "a full discussion" took place. There was no challenge to that description. It was not suggested at the appeal hearing that there had been no discussion of the sexualised behaviour at the Children's Hearing on 19 October 2009. It was not suggested in the course of the appeal hearing that either of the parties' legal representatives had sought further specification of the observation regarding sexualised behaviour nor that they had sought to challenge the observation and any interpretation placed upon it by the Children's Hearing. Thus the parties were present and legally represented, had access to all papers, were able to listen to and participate in the full discussion regarding what was in A's best interests and had the opportunity to challenge or seek further details of the sexualised behaviour. They, and their lawyers, chose not to raise the concerns which are now expressed on their behalf. It is thus difficult to do other than conclude that both appellants were able to effectively participate in the hearing. It was suggested that before relying on the information to reach a decision based upon sexualised behaviour, the opportunity should have been taken to precognosce the foster parents, to recover the records of the social work department and to instruct a psychologist to interpret the behaviour displayed. Absent any suggestion to that effect at the hearing, I do not consider there was a duty on the Children's Hearing to adopt such a course. In my opinion it is for the Children's Hearing to decide what weight to attach to the evidence which has been placed before it. This is particularly so given the limited ability of the appellants to contradict the evidence relied upon from the nursery and foster carer. This was not behaviour which had been witnessed by the appellants and was not within their knowledge. They were therefore not really in a position to challenge the evidence. Their position would have been properly reflected in the formula "Not known and not admitted". Thus any participation which the appellants might have in this narrow issue before the tribunal must by definition be limited. In my opinion the Children's Hearing was entitled to place considerable weight upon what was said by two independent parties, namely the nursery worker and the foster parent. The Children's Hearing was also entitled to view A's behaviour as serious standing the whole background. The appellants had the opportunity to be heard and to call for further specification before a decision was made but that opportunity was not taken. Neither the parents, nor their solicitors, challenged the assertion that A had displayed sexualised behaviour Their submission that the Children's Hearing on 19 October 2009 was a breach of their article 6 rights has in my opinion no merit. For similar reasons I do not consider that there was a breach of article 8 rights. Accordingly, I do not consider that the sheriff erred in not hearing evidence.

[30] An issue developed in the course of the hearing as to whether the allegation of sexualised behaviour had been challenged at the appeal before the sheriff. Ms Stirling referred me to paragraph 31 in the stated case in respect of the appellant father where the sheriff states, "Further, it does not appear to have been a matter which was disputed by the appellant." This comment by the sheriff was said to be inconsistent with paragraph 7 in the stated case where the sheriff records the submissions made on behalf of the appellant father. In particular she drew my attention to the sentence in paragraph 7 in the following terms, "Secondly, in any event, if such behaviour had been deployed then it had taken place while A was in the care of her foster carers." This, she said, made it clear that the solicitor for Mr Harris had disputed, at the hearing before the sheriff, that the sexualised behaviour had occurred. In my opinion there is no inconsistency between paragraph 7 and paragraph 31. When the sheriff states in paragraph 31 that the sexualised behaviour was not disputed by the appellant she is referring to there having been no challenge at the Children's Hearing and not to the hearing before her. The Reporter's position was that there had been no challenge to the sexualised behaviour at the Children's Hearing. No submission was made to me to the contrary. That is consistent with the submissions made to the sheriff. It is clear that the sexualised behaviour was first challenged at the hearing before the sheriff. It had not been challenged at the Children's Hearing.

[31] Considerable reference was made during the hearing before me to the case of O v Rae 1993 SLT 570. This case concerned the operation of the Social Work (Scotland) Act 1968 which was the statutory basis for Children's Hearings until the 1995 Act came into force. Parties were agreed that for present purposes there was no practical distinction between Section 43(1) of the 1968 Act and Rule 19 of the 1986 Rules on the one hand and Section 69(1) of the 1995 Act and Rule 20 of the 1996 Rules on the other hand. Section 43(1) of the 1968 Act provided that:-

"When a Children's Hearing have considered the grounds for the referral of a case, accepted or established under the last foregoing section, the report obtained under Section 39(4) of this Act and such other relevant information as may be available to them they shall proceed in accordance with the subsequent provisions of this section to consider on what course they should decide in the best interests of the child."

The facts in O v Rae are set out in the rubric which is in the following terms:-

"Four out of a father's five children were referred to a Children's Hearing, the eldest child, K, already being subject to compulsory measures of care. When the father did not accept the grounds of referral the Reporter was directed to apply to the sheriff for a finding as to whether the grounds were established. Before the sheriff the reporter deleted from the grounds reference to an alleged sexual offence by the father on K and the remaining grounds were accepted by the father. The children were thereafter placed under supervision in residential care by a Children's Hearing. The father appealed to the sheriff who appointed a safeguarder to the four children. Reference in the safeguarder's report to K's allegation was not given any prominence and the appeal was refused. Subsequently the father requested a review of the supervision requirement relating to the four children. The Children's Hearing decided that all four should remain in care but if the father could demonstrate his ability to look after the children a hearing would consider returning the children to his care. A social worker requested a further hearing, for which reports prepared by the social worker and the safeguarder referred to K's allegation of sexual abuse and pointed out that she had already had sexual intercourse when taken into care at thirteen, whatever the identity of the abuser. The father protested his innocence at the Children's Hearing while the mother agreed to long-term fostering. The Hearing determined that none of the children should be returned to live with the father, who was to be given supervised access to them."

The decision was appealed to the sheriff who refused the appeal. The father then appealed to the Court of Session. It was argued on behalf of the father that what had occurred at the Children's Hearing was unfair because the appellant had no opportunity to have the allegation of sexual abuse judicially tested. The First Division pointed out that before the allegation of sexual abuse was considered by the Children's Hearing the question as to whether the children were in need of compulsory measures of care had already been answered in the affirmative. At the juncture when they considered the allegation of sexual abuse, the Children's Hearing was deciding the arrangements which should be made in the best interests of the children. It was said that the Children's Hearing had a duty to act fairly in relation to the appellant but that the duty had been fulfilled in that the appellant had been given a fair opportunity of correcting or contradicting what was said about him as he was present at the hearing and legally represented. The case of O v Rae was decided before the Human Rights Act 1998. It was submitted that although ordinarily binding upon me as an Inner House decision, I need not follow O v Rae because, in terms of Section 3 of the Human Rights Act 1998, primary and subordinate legislation had to be read and given effect in a way which is compatible with the Convention rights.

[32] The decision which I have reached would have been the same even if I had not been referred to the decision in O v Rae. I accept that it was open to me to hold that the Children's Hearing had breached the appellant's article 6 rights by having taken into account the evidence of A's sexualised behaviour as narrated by the nursery worker and foster carer. There was considerable discussion as to whether, had I held that there had been a breach of article 6 rights, I could refuse to follow O v Rae. In my opinion the position is clearly set out in Kay v Lambeth London Borough Council [2006] 2 AC 465. A lower court is bound by the decision of a higher court even if the lower court considers that the decision of the higher court could not stand following the coming into force of the Human Rights Act 1998. I refer in particular to paragraph 44 in Lord Bingham of Cornhill's speech:-

"There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decision on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decision of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decision of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply."

It is only in exceptional cases, such as X v Bedfordshire County Council [1995] 2 AC 633 where the introduction of the 1998 Act had undermined the policy considerations that had dictated the superior court's decision, that a lower court can decline to follow an otherwise binding precedent. Thus had my decision turned on the decision in O v Rae and I considered it could no longer stand, I would have nonetheless followed the decision and granted leave to appeal to the Inner House.

[33] I agree with the submission made by Mr Ewing that whether an article 6 right has been breached by a Children's Hearing when considering "other relevant information available to them" in terms of Section 69(1), will depend upon the facts and circumstances of each case. I accept that when applying Section 69(1) of the 1995 Act, a Children's Hearing is potentially making a decision with significant consequences for a parent. It is when considering the best interests of the child that the parent's entitlement to have the child resident with them can be removed. The court must have regard to the seriousness of what is at stake for the applicant as was pointed out by the European Court in P, C and S v UK. Where and with whom a child should reside is a serious matter for both the child and its parents. It may well be that if a case with facts similar to O v Rae was to come before the Inner House today, a different decision would be reached standing the introduction of article 6 rights to those appearing before a Children's Hearing. I can understand the frustration which a father would experience if an allegation of sexual abuse made against him, and which he denied, formed the basis for a decision by a Children's Hearing to remove a child from his care when the allegation had not been established when the case was referred to a sheriff. However, I do not need to decide that point as on the facts of the present case I have come to the view that there was no breach of article 6 at the Children's Hearing on 19 October 2009.

[34] It seems to me entirely appropriate that a Children's Hearing should have regard for material beyond the grounds of referral. I respectfully agree with what is said by Professor Norrie: Children's (Scotland) Act 1995 (2^nd Edn) at page 117:-

"It is one of the strengths of the system that the existence of a ground of referral merely raises the question of whether compulsory measures of supervision are necessary but does not determine their nature; it is that question that must be considered and answered by the children's hearing, and they are permitted to do so by having regard to any relevant matter that comes to their attention. The policy of the Act is clearly to leave the children's hearing free from artificial restraint in their exploration of what may be in the interests of the child."

A supervision requirement may continue long after grounds have been established. It therefore seems to me to be highly desirable that when considering what is in the best interests of a child, up to date relevant material is before any Children's Hearing convened after grounds of referral have been established or accepted. One is dealing with a dynamic situation and it would be artificial for a subsequent hearing to be limited to looking only at the grounds of referral. Indeed, as was submitted on behalf of the Reporter, the whole system would break down were such to be the case. For example, as one sees in the instant case, the ability of the parents to care for their child can improve and the parents can become rehabilitated. In such circumstances it is appropriate for a Children's Hearing to have regard for up to date information regarding the parents, for example, in order that they can determine if the parents have become rehabilitated to the extent whereby their child can be returned to them on a residential basis. That does not mean that the Children's Hearing is unconstrained in the material to which it can have regard. I agree with what was said by Professor Norrie: Children's (Scotland) Act 1995 (2^nd Edn) at page 5 where he records that prior to the Human Rights Act 1998 coming into force it was sometimes said that the child's interests were considered paramount. He refers to Kennedy v A 1986 SLT 358 at 362A where it might be thought that Lord Justice‑Clerk Ross was expressing the view that the child's welfare was more important than due process. I respectfully agree with Professor Norrie that if such was the case it can no longer be so given the terms of article 6. Parents and other relevant persons have rights which require to be protected as well as the interests of the child. Thus it seems to me that when considering other relevant information put before it in terms of Section 69(1) of the Act, a Children's Hearing must consider whether in looking at this material they are being fair to, for example, the parents. If the information put before the Children's Hearing is disputed by the parents and it is information upon which the decision of the Children's Hearing will turn, then in such circumstances in order to comply with their obligations under article 6 the hearing may require to refer the issue to the sheriff in order that the facts can be determined. Whether or not there should be a referral will also depend on the nature of the information and its source. If, as in this case, the information regarding the child was such that the parents could have no knowledge of it and the source was independent, for example a nursery nurse or a foster carer, the argument in favour of a referral to the sheriff for the facts to be established will be less convincing. As the solicitor for the respondent pointed out, some parents might challenge facts not within their knowledge, simply to thwart the proceedings before the Children's Hearing. Thus, when a referral will be required will vary and in my opinion cannot be made the subject of a hard and fast rule. Each case will turn on its own facts and circumstances.

[35] I was also addressed on the test which fell to be applied by the court on appeal. Section 51(5) deals with an appeal to the sheriff and provides that the appeal should be allowed if the sheriff comes to the view that the decision of the Children's Hearing "is not justified in all the circumstances of the case". It was submitted by Mr Dickson, relying upon what was said principally in W v Schaffer 2001 SLT (Sh Ct) 86, that it was not open to a sheriff to substitute his own decision for that of the Children's Hearing merely because he disagreed with the conclusion or because he would have arrived at a different conclusion if dealing with the case at first instance. It was not a re-hearing. The sheriff's duty was to ascertain if there had been an irregularity in the conduct of the case by the Children's Hearing, whether all relevant factors had been taken into account, whether any irrelevant factors had been taken into account and whether the decision was one which no reasonable Hearing would have reached. The issue does not arise in the present case given the decision which I have reached and the means by which I arrived at my decision. Broadly speaking I agree with the analysis save only to record that in the event that the sheriff was to come to a view that a parent or child's article 6 rights had been breached by a Children's Hearing the sheriff would require to allow the appeal. That does not mean that the test set out in Schaffer is wrong. If a Hearing has breached article 6 rights then it is difficult to see how the decision could be other than one which no reasonable Children's Hearing would have reached or that there had been some irregularity in the proceedings. An appeal then lies to either the sheriff principal or the Court of Session by virtue of Section 51(11) either on a point of law or in respect of any irregularity in the conduct of the case. That again entitles the appellate court to interfere in the event that it considers an individual's article 6 rights to have been breached as it is axiomatic that before there can be a breach of article 6 rights the decision under scrutiny must have been unlawful and therefore susceptible on appeal or there had been some irregularity in the conduct of the case. Such an approach seems to me to be consistent with what was said by the Appellate Committee in Huang v Secretary of State for the Home Department [2007] UKHL 11 where, at paragraph 20, the Committee stated in the context of an appeal from a decision under Section 65 of the Immigration and Asylum Act 1999 in Part III of Schedule 4 to that Act:-

"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of a family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide..."

I was attracted by the way in which Mr Ewing put it when he said that although the issue is one which may have caused difficulty in academic circles it is not necessarily one which will give rise to difficulties in practice. Whatever the position, parties were agreed that it was not for the appellate body, whichever it might be, to re‑hear the case.

[36] Ms Stirling, for the appellant father, took a different approach to that adopted by Mr Ewing, solicitor for the appellant mother. Mr Ewing accepted that had the panel omitted from their decision the sentence in numbered paragraph 3 on page 2 regarding the sexualised behaviour, he would not have been in a position to argue that the Children's Hearing had come to the wrong decision. He accepted that there was a great deal of material before the Children's Hearing which would give rise to legitimate concern. He accepted that the non-accidental injuries were serious. Ms Stirling, whilst aligning herself with the submissions made by Mr Ewing in relation to the sexualised behaviour said to have been exhibited by A, drew my attention to the passage on page one of the decision of the Children's Hearing of 19 October 2009 where reference is made to the "serious nature of the grounds and historical concerns regarding the parents". She further drew my attention to the passages in the integrated assessment report and action plan where there is an allegation of sexual abuse of B and the reference to fingertip bruising. These are more fully set out in paragraph 27 supra. She submitted that it was incumbent upon the Children's Hearing to explain what if any weight had been attached by the Hearing to such passages when the panel was reaching its decision. In my opinion that is to place too high a burden on the Children's Hearing and would be disproportionate. If a factor has been relied upon by the Children's Hearing they will record such as having been a factor in their decision. Thus if they do not make any reference to particular material when reaching their decision it can be inferred that they have not placed weight upon such information. The hearing in this case made no reference to the possibility, and it was only such, that the injury on A's knees may have been caused by fingertip bruising nor that in 2003 an allegation was made by a daughter of the appellant mother that she had been raped by the appellant father. It seems to me, as was submitted by Mr Dickson, that the reference to bruising on A's knee makes it clear that it may or may not have been caused by fingertip bruising. Furthermore the allegation of rape was one which had been made some time ago and in the interim the Hearing had felt sufficiently confident in the appellant father to allow A to reside with him. That seems to suggest that the allegation of rape was not one which the Children's Hearing took seriously. It is also quite clear that the allegation is no more than that and Mr Dickson's submission that it is reasonably clear from the papers that no criminal proceedings were taken against the appellant father was not challenged. In these circumstances I do not consider that it was incumbent upon the Hearing to go through all of the information placed before them, identify such material which was potentially pejorative of the appellant father, set it out in their decision and then explain that they reached their decision without having regard to such material. In the course of a proof a court will hear evidence on a whole variety of matters which will not play any part in the final determination of the case. We do not expect sheriffs or judges to explain what view they took of every adminicle of evidence when writing their judgments. What a judge or sheriff requires to do is set out the facts upon which they have relied in coming to their decision. In this case the Children's Hearing did that.

[37] The appellant father alone attacked the decision of the sheriff not to interfere with the decision of the Children's Hearing regarding contact. It was submitted that the reasons given by the Children's Hearing were inadequate and the decision wrong. It should be noted that the Children's Hearing only specified that the minimum amount of contact should be two hours per week. No maximum period of contact was stipulated. I suspect from what I was told that the provisions with regard to contact were expressed in this way because there were practical difficulties in the appellant parents enjoying contact. It seems to me that when a Hearing has fixed only a minimum period for contact and no maximum, it is difficult to attack its judgment. It is clear from the decision that the Hearing came to this position on the basis that they considered such to be the minimum period which would allow for the maintenance of A's bond with her parents and, by inference, should the parents rehabilitate themselves, the prospect of A returning to live with her parents.

[38] The appellant mother had asked the sheriff to pose seven questions for the opinion of the sheriff principal. In the event it was only questions 1, 4, 5 and 7 which were insisted upon. It was accepted on behalf of the appellant mother that there was sufficient material before the Children's Hearing to justify its decision that the child should be accommodated in foster care and that accordingly the sheriff had not erred in refusing to hear or call for evidence. It was also not argued that the provisions with regard to contact were susceptible to appeal. For the reasons which I have given I have come to the view that the sheriff did not err in law in holding that the Children's Hearing were entitled to take into account, in arriving at their decision, evidence or matters not contained in the statement of facts. In the circumstances of this case I did not consider that the sheriff's decision to confirm the Children's Hearing decision based (at least in part) on matters not contained in the statement of facts was a breach of article 6. Furthermore, I also did not consider that the sheriff's decision to confirm the Children's Hearing decision based (at least in part) on matters not contained in the statement of facts was a breach of article 6 because the appellants did not have the opportunity of a judicial determination or adjudication in respect of disputed matters of fact. The appellant mother had the opportunity to participate effectively at the Children's Hearing. I did not consider that the sheriff erred in law in deciding that the Children's Hearing could not be said to have reached an unjustified decision. In so far as the appellant father was concerned, I have come to the view that the sheriff did not err in law in holding that the statement of reasons issued by the Children's Hearing was sufficient to justify the decision that the child should be accommodated in foster care. I did not consider that the sheriff erred in law in holding that the statement of reasons issued by the Children's Hearing provided a sufficient basis for the level of contact specified in the decision. I did not consider that the sheriff erred in law in holding that in light of the age of the child and the fact that she attended nursery the level of contact specified by the Children's Hearing was justified. I did not consider that the sheriff erred in law in holding that the Children's Hearing did not predicate their decision on a material error of facts specifically the assertion made by the social worker and contained in the social enquiry report that the appellant had previously raped the child's half sibling. Question 5 does not arise given the answer to question 4. In this particular case the Children's Hearing did not err in not referring the issue of sexualised behaviour to the sheriff in respect that the sexualised behaviour was not put in issue at the Children's Hearing. However, the Children's Hearing is not necessarily the appropriate forum for the resolution of material disputes as to fact. Finally, the sheriff was entitled to hold that the decision of the Children's Hearing was justified.