Scottish Sheriff Court Decisions

B139/10 & B189/10

B141/10 & B191/10

B142/10 & B190/10

B140/10 & B188/10

 

JUDGMENT

OF

SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

L.A.B. & S.P.

APPELLANTS

against

 

The Authority Reporter

RESPONDENT

                                                                        

 

 

 

GLASGOW, 9 November 2010.

 

The Sheriff Principal, having resumed consideration of the cause, Answers the three questions contained in the stated case in the negative and Remits the case to the sheriff to proceed as accords.

 

 

 

 

 

NOTE:-

 

Introduction

[1] This is an appeal against the decision of the sheriff to refuse an appeal under Section 51(1) of the Children (Scotland) Act 1995 (hereinafter "the Act"). Mr Munro, solicitor, appeared on behalf of the first named appellant, the mother of the children, Mr Brown, solicitor, appeared on behalf of the second named appellant, the father of three of the children, and although not the biological father of one child treats the child as his own. Mr Dickson, solicitor, appeared for the Reporter and Mr Martin, solicitor, appeared as curator ad litem for the children.

 

[2] Mr Munro explained by way of background that his client was the mother of four children. Until October 2008 they had been living in Easterhouse as a family. The Social Work Department had some concerns with regard to the family but not such as caused them to seek a child protection order. In October 2008, J, one of the children, sustained bruising to his face and as a consequence was taken to hospital. When there it was ascertained that in addition to the bruising to his face, which bruising was on both sides, he had also sustained bilateral subdural haematoma. As a consequence, when he was discharged from hospital the Children's Reporter referred his case to a Children's Hearing on two grounds. In the first place it was said that in terms of Section 52(2)(c) of the Act he was likely (i) to suffer unnecessarily or (ii) to be impaired seriously in health or development due to lack of parental care. In the second place he was referred under Section 52(2)(d) as a child in respect of whom an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed. In March 2009 the Children's Reporter referred the children D and L to the Children's Hearing in terms of Section 52(2)(e) of the Act as members of the same household as a child in respect of whom a specified offence had been committed and also in terms of Section 52(2)(c) of the Act. KL was born on 1 August 2009 and following her birth she was also referred to the Children's Hearing on the same grounds as D and L. The appellants denied the grounds and a proof commenced in this court on 18 August 2009. The sheriff found the grounds established and remitted the cases to the Reporter to arrange a Children's Hearing. At a Children's Hearing in January 2010 all children were made the subject of a supervision requirement with three conditions: (i) that they be placed with a foster carer; (ii) that as a minimum there should be supervised contact once every fortnight and (iii) that there should be non-disclosure of the foster carers' address.

 

[3] Mr Munro narrated the whole background to me and as far as I can tell from my notes the position he narrated is entirely consistent with paragraphs 11 to 17 inclusive in the sheriff's stated case which I adopt and repeat herein:-

 

"[11] D, L and J were residing with the appellants in July 2008 following the birth of J. In October 2008, the appellants noticed bruising to J's head and this was drawn to the attention of representatives of the social work department who determined that he should be medically examined at Yorkhill Hospital. A scan revealed bilateral subdural haematoma for which there was no apparent medical reason. It was considered that it was likely that the injury was caused by some trauma and no adequate reason had been put forward to account for it."

[12] J was voluntarily accommodated by the social work department but thereafter was subject to a child protection order when consent was withdrawn in December 2008 and he has remained in foster care since that time.

[13] After the non-accidental injury to J came to light in October 2008, D and L were removed voluntarily to stay with relatives in Cumbernauld and then Gathamlock. All three children were placed on the Child Protection Register on 28 October 2008. D and L then moved to stay with their paternal grandparents P and MP, who live in a different flat within the same block as the appellants...The appellants exercised contact with D and L as arranged with the social work department. There was substantial social work supervision of these arrangements.

[14] From July to December 2009 the level of unsupervised contact for D and L with their parents was gradually increased in line with a tight child protection plan. By December 2009, the appellants had care of D and L from Monday morning until Friday evening subject to extensive monitoring by nursery staff, health visitor, HSDC monitoring workers, workers supervising J's contact (three times per week for three hours) and the associated social worker. KL spent the majority of the time with her paternal grandparents. J remained in care.

[15] KL had been born on 1 August 2009, prematurely, and required to be kept in hospital for a number of weeks. The birth of KL appears to have caused the social work department to re-assess the situation and on 3 September 2009 a child protection order was sought and granted for KL. This order was continued by Sheriff Adair on 8 September 2009 who, whilst continuing it further, varied it so that the place of safety for KL was specified as her grandparents' home...

[16] A further place of safety warrant authorising care to be provided by Glasgow City Council was granted by a children's hearing on 15 September 2009. Contact with her parents was to occur three times per week for three hours and to be supervised by the social work department. On appeal to Sheriff Raeburn, the warrant was recalled on 23 September 2009, an undertaking having been given by the appellants that they would not remove KL from the care of her paternal grandparents.

[17] Following the establishing of the grounds of referral, a child protection order was sought and granted in respect of D, L and KL on 17 December 2009. An application for recall of that order was heard by Sheriff Totten on 22 December 2009. He was not satisfied that it was necessary for the order to be granted at that stage and he allowed the appeal and recalled the child protection order."

 

[4] The three questions of law which I was invited to answer are as follows:-

 

"1. Did I err in law by deciding that the appeals had failed on the question of residence?

2. Did I err in law by deciding that the appeals had failed on the question of contact in relation to the children D, L and KL?

3. Did I err in law by remitting the case relating to the question of contact with J to the children's hearing for reconsideration?"

 

Submissions for first named appellant

[5] Mr Munro submitted that the test which fell to be applied was that of necessity. In support of that proposition he referred me to Sections 51(5) and 70(1) of the Act. He submitted that this meant that any part of a supervision requirement required to be necessary. He did not consider this to be controversial as that was the test which the sheriff  had identified in paragraph 65 of his stated case. He pointed out that the test for granting a child protection order was also one of necessity. He referred to Section 57(1)(b) of the Act. In this context he also referred me to the cases of Kutzner v Germany (2002) 35 EHRR 25 and Johansson v Norway (1197) 23 EHRR 33. In particular he referred me to paragraph 76 in Kutzner which he submitted was authority for the proposition that a care order "has in principle to be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any implementing temporary care measures should be consistent with the ultimate aim: of reuniting the natural parents and the child." He said that this was consistent with the obligations under Sections 17 and 22 of the Act which were designed to encourage minimum intervention by the State into private lives.

 

[6] Mr Munro submitted that the test which fell to be applied by the sheriff was set out in W v Schaffer 2001 SLT (Sh Ct) 86. It was accepted that a Children's Hearing could have a range of options open to them all of which would be reasonable and providing the Hearing stayed within that range an appeal to the sheriff would not succeed. The issue was whether the decision of the Children's Hearing had been reasonable and for it to be reasonable required a demonstration of necessity.

 

[7] Mr Munro made it clear that he was not challenging the decision insofar as it required compulsory measures of supervision under Section 52(2)(c). The challenge was to the necessity of the conditions attached to the supervision order which were linked to the finding that the condition set out in Section 52(2)(d) was established. He pointed out that after the non-accidental injury to J had come to light, D and L, after a short interregnum, stayed with their parental grandparents albeit that contact was exercised by the appellants as arranged by the Social Work Department. The appellants and the grandparents lived in the same close. Until the sheriff held the grounds of referral established in December 2009, the appellants had enjoyed increasing levels of unsupervised contact. There had been no problems created thereby. All the sheriff had done was confirm the facts which the Social Work Department and the Children's Hearing were already aware of. There was nothing new to the Social Work Department in Sheriff Rae's findings. It was the Reporter who led the evidence. It was therefore his submission to the Children's Hearing that it was necessary to accommodate all four children.

 

[8] Mr Munro placed great emphasis on the decision of Sheriff Totten on 22 December 2009. He reminded me that a child protection order had been sought and granted in respect of D, L and KL on 17 December 2009 following Sheriff Rae's judgment establishing the grounds of referral. Sheriff Totten had recalled the child protection order on 22 December 2009 on the basis that he was not satisfied that it was necessary for the order to be granted. He contrasted the approach adopted by Sheriff Totten with that adopted by the Children's Hearing some three or four weeks later when they made the decision presently under appeal. Whilst he accepted that strictly speaking the decision made by the sheriff was not res judicata he submitted that the Children's Hearing ought to have been informed by the decision of the earlier court. The same material was before the Children's Hearing as had been before Sheriff Totten. No new events had occurred between the two hearings. He accepted that J was in a slightly different position in that he had been in foster care since October 2008 and had also been the child who was the subject of ill-treatment. He acknowledged that the test of necessity might be more readily made out in the case of J than for D, L and KL. He submitted that in each case however it could not be said that when the case was before the Children's Hearing in January 2010 it was necessary for the children to be placed with foster carers.

 

[9] Turning to deal with contact, Mr Munro reminded me that this was not a matter of private law. This was interference by the State. It accordingly must be justified and proportionate. If children had been placed in foster care the maximum contact should be permitted. He reminded me of the passage to which he had earlier referred in Kutzner that a care order should be seen as temporary. The decision of Sheriff Beckett to remit the case back to the Children's Hearing to re-consider the level of contact for J had not resulted in increased contact for the appellants. It remained at two hours per fortnight. He submitted that the decision of the sheriff in relation to contact insofar as the other three children was concerned, was inconsistent with ECHR provisions and the concept that children in care should be there as a temporary measure. There had been no increase in the level of contact for D, L and KL since the Children's Hearing's decision and it remained at the minimum recommended. It was being reported that there was distress to the children after contact. Mr Munro submitted that there was no easy way of determining the cause of the distress. It could be that the children were distressed by virtue of having had contact but that might be because they were reminded of a family life they once had and had lost. They might be distressed because they were being returned to foster care. He submitted that the sheriff did not address contact properly when he refused to interfere with the decision of the Children's Hearing. I was therefore invited to answer question two in the affirmative.

 

[10] Insofar as question three was concerned, Mr Munro accepted that it would be an unusual step for the sheriff to determine contact rather than to remit to the Children's Hearing for them to re-consider their decision. He accepted that the Children's Hearing was normally in a better position to determine such matters. He accepted that the exceptions to that general position were usually that the court had heard evidence or that the issues were complex. He submitted that in this case children's lives were affected and therefore the sheriff ought to have decided the issue himself. He also accepted that the reason why the sheriff had asked the Children's Hearing to reconsider their decision was not that the sheriff thought that what they had previously decided was wrong but that the Hearing had not properly explained why J, who had been enjoying contact three times per week for 3 hours, was reduced to having only two hours per fortnight. The sheriff had felt that such an abrupt change called for a clear explanation.

 

Submissions for second named appellant

[11] Mr Brown, for the second named appellant, adopted Mr Munro's submissions in full.

 

Submissions for respondent

[12] Mr Dickson, for the Reporter, took question 3 first. He explained that the sheriff had dealt with the reasons why he had remitted re-consideration of contact for J back to the Children's Hearing at paragraph 86 in the stated case. In paragraph 87 he offered the view that the Children's Hearing was the most appropriate vehicle for determining what was in the best interests of the child. That, said Mr Dickson, was an echo of what one saw in Norrie Children's Hearings in Scotland 2^nd Edn at pages 216 to 219. He submitted that in order to succeed I would have to be satisfied that the test set out in Macphail Sheriff Court Practice 3^rd Edn at paragraph 18-110 was satisfied. Standing that the decision made by the sheriff was one of discretion I would have to be satisfied that the sheriff had got it "plainly wrong" or something similar. It was submitted that I could not possibly come to that view.

 

[13] Mr Dickson then addressed the court on the test which I had to apply in determining how to answer questions one and two in the stated case. He submitted that it was a narrower test set out in Section 51(11) compared to that set out in Section 51(5) of the Act. In terms of Section 51(11) I had to be satisfied that there was an error in law or an irregularity in the conduct of the case. He commended the approach taken by the late Sheriff Principal Nicholson QC in Schaffer. On pages 87 and 88 the test which the sheriff principal has to apply under Section 51(11) is said to be narrower than that which the sheriff has to apply. He also referred me to my own decision in LM & JH v The Authority Reporter, 2 July 2010, Glasgow Sheriff Court, unreported, in which I had endorsed the views expressed by Sheriff Principal Nicholson. Given the test set out in Section 51(11) it followed that there were two issues for determination. Firstly one had to determine whether the sheriff had identified and applied the correct test and secondly, whether the sheriff misconstrued or misapplied some other legal concept. If one had regard to paragraphs 76 to 80 of the stated case it was difficult, submitted Mr Dickson, to come to the view that the sheriff had done other than identify and apply the correct legal test. Accordingly the sheriff was not in error.

 

[14] Mr Dickson then addressed me on the weight which I should attach to the decision made by Sheriff Totten on 22 December 2009. In his stated case, Sheriff Beckett dealt with that decision in the following manner:-

 

"[62] The decisions made by sheriffs in relation to child protection orders at earlier stages were separate from judicial decisions, each made in its own legal context. The detailed social work assessment reports and recommendations in respect of each child were not before the various sheriffs, but they were before the hearing on 12 January 2010. The circumstances were different and the nature and implication of the decision to be made was different and I do not accept the proposition that the decision made by Sheriff Totten somehow demonstrates that the hearing on 12 January made decisions which were not justified in all the circumstances of the case. Sheriff Totten himself sought to make the limits of his decision abundantly clear to the parties in making the observation which he did and to which I have referred at paragraph 43 above."

 

Mr Dickson submitted that the considerations which Sheriff Totten had to apply were set out in Section 57 of the Act and in particular Section 57(1)(b). This he characterised as emergency protection. A Children's Hearing on the other hand is different. He referred me to Norrie Children's Hearings in Scotland at pages 114, 121 and 132. The Children's Hearing had to take a long-term view. At the stage at which Sheriff Totten was dealing with matters he knew that there would be a Children's Hearing within eight working days. Thus Sheriff Totten was only dealing with short-term emergency protection. Furthermore, Sheriff Totten did not have before him all the information which was before the Children's Hearing. There was no social work background report before Sheriff Totten. A detailed social work report was before the Children's Hearing. It was the Children's Hearing which was the appropriate forum to determine the child's best interests. An informed discussion could there take place. When Sheriff Totten made his decision the judgment of Sheriff Rae following the hearing of evidence had only just been delivered. Following Sheriff Rae's decision different considerations applied than had been the case. In her decision Sheriff Rae had confirmed the view that J had suffered a bilateral subdural haematoma by virtue of having been shaken. Sheriff Rae had been unable from the evidence to identify which of the four potential adults had been responsible. It could have been either the two appellants or the two grandparents who had been central to the care of L, D and KL. The Reporter and Social Work Department could not now manage the risk without the culprit being identified. At the time of Sheriff Totten's decision the Social Work Department was considering if they were able to manage that risk. Thus given the different tests which fell to be applied and the different material available, there was no mileage for the appellants in there being a difference between the two decisions. That was particularly so given the caveat which Sheriff Totten applied to his judgment which was to the effect that nothing which he said should in any way bear upon the long-term outcome of the case.

 

[15] The next question which fell to be addressed was whether the decision of the Children's Hearing was justified. Under reference to the grounds of referral which were established at Glasgow Sheriff Court in respect of KL and which are substantially the same as for the other children, Mr Dickson drew my attention to the finding that there was a volatile relationship between the parents. The first named appellant's volatility extended to damaging property in the family home during an argument with the second named appellant. There was also a finding that she had told L and D when they were respectively one year and 27 months old to "Shut the fuck up" and "Fucking leave me alone." It was also established that the first named appellant drank to excess and when she was in a state of inebriation she failed to attend to the needs of the children. When J was born the first named appellant discharged both her and J from hospital prematurely and against medical advice. Having so done she then failed to feed J as a consequence of which he required to be re-admitted to hospital. He also pointed out that both appellants had failed to attend the medical needs of the children. Finally she was able to point to the bruising and the bilateral subdural haematoma suffered by J. The Hearing had to decide whether it was likely that the deprivation of reasonable care would continue and materially harm the child in the future. Under reference to Norrie Children's Hearings in Scotland at page 27 the test was said to be an objective test. Mr Dickson submitted that it was difficult to imagine more severe grounds than those which were before the Children's Hearing. Putting some of the findings into context made matters even more serious. There had been a delay in seeking medical attention for J and that had been the second occasion there had been such an incident. On a previous occasion L had burned his face with an iron and it had been two days before medical attention had been obtained. It was also of concern to the Children's Hearing that not one of the four potential culprits, namely the two appellants and the two grandparents, had owned up to shaking J or causing the bruising. As a consequence, no realistic care plan could be developed given that in the past the grandparents had been central to that care plan. The appellants accepted that they were immature. On a recent visit to the house social workers noted there had been chaos in the family with children eating off the floor. Sheriff Beckett had outlined the position as he saw it at paragraphs 59 to 65 of the stated case:-

 

"[59] I do not accept that nothing material had changed from October 2008 to 12 January 2010. Until the findings were made by Sheriff Rae, the social work department could not be certain that the grounds of referral would be established. If the grounds had not been substantially established, the children would have been in the care of their parents. Whilst the social work department might have been justified in seeking to have all of the three children removed in October 2008, what they had done was to work with the family with a view to keeping all options open.

[60] In addition, there was a change in the factual circumstances in that the original grounds of referral did not specify that the bruising and brain injury to J had been caused on separate occasions, whereas the findings of Sheriff Rae did. The fact that non‑accidental injuries were sustained by J on two separate occasions is suggestive of a higher level of danger to the safety and health of the children than had been appreciated at the outset.

[61] Further, whilst the involvement of the grandparents may at one time have been regarded as a protective factor, the hearing was aware that there was information that in fact MP suffered from depression and spent the majority of her time in her bedroom. (NHS Greater Glasgow and Clyde Integrated Assessment Report and Action Plan 5 January 2010, re DB at page 20/26, Reporter's production 3 in the inventory for D). It was plain that Sheriff Rae made findings which negated the value of the grandparents as 'a protective factor' and this was referred to in the same report at page 22/26. The panel did not explicitly state this as a factor or reason for its decision. It did not of course require to state every aspect of its reasoning. It did refer to care concerns. I felt entitled to have regard to this information as a material consideration in assessing whether decisions were justified 'in all the circumstances of the case'.

[62] The decision made by sheriffs in relation to child protection orders to child protection orders at earlier stages were separate from judicial decisions, each made in its own legal context. The detailed social work assessment reports and recommendations in respect of each child were not before the various sheriffs, but they were before the hearing on 12 January 2010. The circumstances were different and the nature and implication of the decision to be made was different and I do not accept the proposition that the decision made by Sheriff Totten somehow demonstrates that the hearing on 12 January made decisions which were not justified in all the circumstances of the case. Sheriff Totten himself sought to make the limits of his decision abundantly clear to the parties in making the observation which he did and to which I have referred at paragraph 43 above.

[63] The injuries sustained by J were serious. It was a matter of inevitable inference that he had sustained non-accidental injuries to his head on two occasions separated by two or three weeks. The person or persons responsible for inflicting these must have been one of the appellants or one of the two paternal grandparents.

[64] Despite all of the considerable social work intervention and all of the opportunities for the culprit (or culprits) to have owned up, which would have been in the interests of the children, this had not happened. It was the professional judgement of the social workers involved, having sought appropriate advice, that in the absence of being able to identify the perpetrator there was not a satisfactory way of managing the risk to the children in the long term. This came against a history of parenting which was inadequate in a number of respects and which continued to show difficulties, despite substantial support and intervention. Sheriff Rae found in the case of all the children that they were likely to suffer unnecessarily or to be impaired seriously in health or development due to the actions of the appellants.

[65] In these circumstances a children's panel, the body entrusted with the primary decision making role, decided that it was necessary for the children to be made subject of supervision and placed with foster carers, or in the case of J kept with his foster carers."

 

Mr Dickson commended Sheriff Beckett's approach.

 

[16] Prior to the Children's Hearing, on 12 January 2010, establishing the facts the Social Work Department had approached matters from the perspective that they were not sure how the injuries to J had been caused. All that had changed upon Sheriff Rae finding the grounds established. The Children's Hearing on 12 January 2010 was the first occasion when these grounds might be considered by the Hearing. Before Sheriff Rae's decision these had been no more than unproven allegations. These allegations had been hotly disputed. The Social Work Department had kept all options open so that in the event that the grounds were not established no avenue had been closed. Given the grandparents and the parents lived in the same close it would be impossible to monitor contact. Particular concern was attached to the finding made by Sheriff Rae that it was inconceivable that an adult charged with the care of J would have been unaware of J's injuries. The culprit must therefore have been aware of the injury sustained by J. The Social Work Department had been quite reasonable in reaching their view that they could not manage risk without identification of the culprit. In short the family members were putting their own interests before those of the children. Under reference to the social work report, it was highlighted that the grandmother suffered from depression, was taking anti-depressants, rarely went out of the family home and spent the majority of her time in her bedroom. The report also disclosed that there had been significant intervention by social work in relation to the family but no improvement had been noted. The household remained chaotic. Mr Dickson submitted that the appellants had failed to identify any error in law in the approach adopted by the sheriff or any procedural irregularity. If one had regard for paragraph 66 to 75 of the stated case one could see that the sheriff had identified the correct tests and properly applied them. He was correct to conclude that the Children's Hearing had acted within the margin of appreciation afforded to them with regard to both residence and contact. He referred me to the case of TS & DS v The United Kingdom, European Court of Human Rights, 19 January 2010, Application 61540/09, unreported. At pages 10 and 11 the court came to the view that difficulties presented in the monitoring of, for example, contact was an acceptable reason for taking a child into care. Insofar as contact was concerned, I was referred to paragraphs 81 to 84 in the stated case and again I was invited to hold that these paragraphs disclosed no error in law. Mr Dickson again referred to the case of Johansson where it was stressed that one had to ensure that the bonds with foster parents were not disrupted by contact. What the sheriff sets out in paragraph 80 was the correct approach which disclosed a balance between the child's and the parents' interest. It took into account the serious nature of the established grounds. As was said in Johansson at paragraph 78, a balance had to be struck between the interests of the child in remaining in public care and those of the parents in being reunited with the child. The interests of the child were paramount. He stressed that the Children's Hearing had not stated that the appellants should have contact with the parents as a maximum of two hours per fortnight. That was a minimum.

 

[17] Mr Dickson invited me to answer questions 1 to 3 in the negative and to refuse both appeals.

 

[18] Mr Martin, for the curator ad litem, adopted the Reporter's submissions in full. The only point he wished to make was that which was alluded to in paragraph 47 of the stated case which was that there was no good reason given by the Children's Hearing on 12 January 2010 to justify the reduction in the minimum contact with the appellants and J.

 

Reply on behalf of first named appellant

[19] In reply Mr Munro adhered to his view that the test was one of necessity at all of the key stages. The error into which the sheriff had fallen was his failure to identify necessity or if he did identify the necessity he had failed to apply that test. Returning to the decision of Sheriff Totten and its significance in relation to the decision made by the Children's Hearing some three to four weeks later, Mr Munro accepted that the Children's Hearing was dealing with a wider range of issues but essentially necessity was the test. Indeed he submitted that because Sheriff Totten was dealing with a decision which had a short existence he might be afforded a wider margin of appreciation than a decision which had longer term implications. He pointed out that the care and protection concerns which the Social Work Department had were historical and they had managed the risk prior to Sheriff Rae's decision. Although he accepted the grounds of referral he did point out that these looked only at negative issues. There had never been any real concern with regard to the health of the children being adversely affected by the care of the parents.

 

Discussion

[20] It was not in issue before me that the tests which the sheriff and sheriff principal require to apply were correctly stated in Schaffer. At the foot of page 87, Sheriff Principal Nicholson identifies the sheriff's task as being "to see if there has been some procedural irregularity in the conduct of the case; to see whether the hearing has failed to give proper, or any, consideration to a relevant factor in the case; and in general to consider whether the decision reached by the hearing can be characterised as one which could not, upon any reasonable view, be regarded as being justified in all the circumstances of the case." My task is to apply the provisions of Section 51(11), which as is pointed in Schaffer, is an even narrower test. As in Schaffer there was no suggestion of any irregularity in the proceedings. Thus in order to find for the appellants I would have to hold that the sheriff had erred in law.

 

[21] There was no dispute between the parties that the test which fell to be applied by the Children's Hearing, when deciding whether the children should be made the subject of supervision and placed with carers, was that of necessity. It was also not in issue that the arrangements in respect of contact must also be necessary for the wellbeing of the children. In my opinion the sheriff correctly identified both tests. In paragraphs 65 and 84 of his note he refers to necessity being the test which the Children's Hearing required to apply in respect of supervision, in the former paragraph, and contact, in the latter paragraph. In this respect his judgment cannot be faulted. When considering the decision of the Children's Hearing he held that the Hearing had correctly identified and applied the test.

 

[22] Although not expressed in this way, what I understood Mr Munro's submissions to amount to were that the Children's Hearing had failed to give proper consideration to a number of factors and that the sheriff ought to have allowed the appeal. Furthermore, in all the circumstances of the case, the decision of the Children's Hearing could not be justified given the test was that of necessity. Accordingly, the sheriff had erred in law in failing to recognise that. Mr Munro's submission relied heavily on the facts established by Sheriff Rae all being known to the Social Work Department prior to her judgment. If it had not been necessary for L, D and KL to live with foster carers before Sheriff Rae's judgment there was no change in circumstances requiring the children to be placed with foster carers after the judgment was issued. From paragraphs 59 to 65, repeated herein at paragraph 15, the sheriff sets out why he considered that there had been a significant change which justified the decision of the Children's Hearing. Firstly, he identifies the possibility that the grounds of referral might not have been established by Sheriff Rae. Had that been so the children would have been returned to their parents. Mindful of that possibility the Social Work Department had devoted resources to working with the appellants. Secondly, he points out that Sheriff Rae's findings established that the bruising and brain injuries to J had been caused on separate occasions. Sheriff Beckett points out that since Sheriff Rae had found that J had sustained non-accidental injuries on two separate occasions, a higher level of danger than had been previously appreciated had been established. Thirdly, the sheriff noted that the Children's Hearing had before them further information with regard to the paternal grandmother in that she suffered from depression and spent the majority of her time in her bedroom. This had diminished the protection which could be afforded to the children by the grandparents. Fourthly, the sheriff noted that although the person responsible for J's injuries must have been either one of the appellants or one of the two paternal grandparents, nobody had come forward to accept responsibility. When one viewed these factors against the general inadequacies of the parenting, (it was accepted by the appellants that the finding by the Children's Hearing that the conditions set out in Section 52(2)(c) of the Act could not be challenged), the sheriff was entitled to hold that compulsory measures of supervision, which included placing the children with foster carers, were necessary and that the decision of the Children's Hearing should not be disturbed. The Children's Hearing had not failed to consider a relevant factor nor had it taken irrelevant factors into account. Notwithstanding the test of necessity, the decision of the Children's Hearing was justified. I am unable to identify any error in law in the approach adopted by the sheriff.

 

 

[23] Before turning to consider the issue of contact, I require to deal with the appellants' submission concerning the status of Sheriff Totten's decision on 22 December 2009 when he recalled the child protection order granted a few days earlier. Sheriff Totten expressly stated that he did not expect any party to use his decision to influence a long-term decision. At the time when he made his decision he was aware that there would require to be a Children's Hearing within eight working days. That hearing took place on 12 January 2010. Sheriff Beckett notes at paragraph 62 that the detailed social work assessment reports and recommendations were not before Sheriff Totten but they were before the Children's Hearing on 12 January 2010. Sheriff Beckett also notes at paragraph 62 that the context in which the decisions were being made on 22 December 2009 and 12 January 2010 were different. The information contained in the detailed social work assessment reports was highly relevant. It disclosed the weakness in the paternal grandmother's ability to look after the children by virtue of her depression and her remaining in her bedroom for much of the day. I do not know what material was placed before Sheriff Totten nor what his reasoning was when he reached his decision. The context of his decision differs from the context of the decision which the Children's Hearing required to make some eight working days later. As Professor Norrie states on page 122 of his text book, the Children's Hearing required to take a long term view. Sheriff Totten would have known that his decision would be reviewed within eight working days. In my opinion Sheriff Beckett did not err in law when he accorded to Sheriff Totten's decision the weight which Sheriff Totten considered should be attached to his decision in future proceedings and which is recorded at paragraph 43 of the stated case.

 

[24] The appellants took issue with the level of contact recommended by the Children's Hearing which was that there should be a minimum of two hours contact every fortnight. The sheriff deals with the issue of contact in paragraphs 81 to 84 of his note. He notes the import of the decisions in Kutzner and Johansson in respect of balancing the requirement to maintain the bonds of parenthood whilst also not disrupting the process of establishing the bonds with foster parents. Thus to specify a minimum period of contact of two hours per fortnight when L, D and KL have just been taken into care was thought by the sheriff to be justified in all the circumstances and that it was reasonable, necessary and proportionate. Put another way, it was within the band of decisions which the Children's Hearing was entitled to make. I am unable to identify any error in law which the sheriff made which would entitle me in terms of Section 51(11) to interfere with his decision.

 

[25] Finally, Mr Munro criticised the sheriff for having referred the issue of contact for J back to the Children's Hearing for reconsideration. J had been having contact with the appellants three times per week prior to 12 January 2010. This was reduced to a minimum of two hours per fortnight by the Children's Hearing. The criticism which the sheriff made of the Children's Hearing was that they had not adequately explained why there should have been such a reduction in the appellants' contact with J. Mr Munro submitted that the sheriff should have substituted his own opinion. In fairness to Mr Munro he did not argue this point with any great enthusiasm. He accepted that it was only in exceptional circumstances that a sheriff would substitute his or her own decision for that of the Children's Hearing. Such circumstances would include, for example, if the sheriff had heard evidence. Mr Munro was unable to identify any exceptional circumstance which would have entitled the sheriff to substitute his own view. In my opinion the sheriff cannot in any respect be criticised for having remitted the issue back to the Children's Hearing for a fuller explanation. In any event, the decision to remit is one for the discretion of the sheriff. The appellants came nowhere near meeting the test which an appellate court must apply if the appellants are to succeed on this point.

 

[26] In all the circumstances and without any great difficulty, I have come to the view that the three questions which are posed in the stated case all fall to be answered in the negative.

 

[27] Finally, I should comment that an appeal to the sheriff principal or to the Court of Session in terms of Section 51(11) is not, as was pointed out in Schaffer, an opportunity to challenge directly the merits of the decision taken by the Children's Hearing. I assume that the appellants were in receipt of legal aid. If that assumption is correct then I will say no more than record my surprise that legal aid was granted given the care adopted by the sheriff in identifying and applying the correct tests and the limited grounds of appeal open to the appellants in terms of Section 51(11).