Scottish Sheriff Court Decisions

B 788/10

 

Dumbarton 3^rd November 2010

 

 

The Sheriff, having heard parties, and the Safeguarder, on the Appeals by MH against the decisions of the Children's Hearing on 20^th August 2010 in relation to the children JY and SY, allows the Appeal in the case of each of said children quoad the decision not to regard MH as relevant person; THEREFORE remits the matter to the Children's Hearing for reconsideration, particularly in respect of its decision that the said children should have no contact with MH.

 

 

 

 

 

Note:

 

These are appeals by MH against decisions of the Children's Hearing made on 20th August 2010 in respect of the children JY and SY. MH is the children's grandmother. I heard the appeals together, as one appeal, on 20th of October 2010. The Reporter to the Children's Hearing was represented by Mrs Scullion. The Appellant was represented by Mrs O'Neill, Solicitor. The Safeguarder for the children, Miss Henderson, also appeared.

 

The appeal is against the decision of the Hearing to refuse to regard the Appellant as a relevant person as defined in section 93(2) of the Children (Scotland) Act 1995 ("The 1995 Act"), and therefore as a person entitled to attend and make representations at Children's Hearings in respect of the children in question. The appeal is also against the decision of the Hearing, in continuing the supervision requirement in respect of said children, that the children should have no contact with the Appellant.

 

 

I was informed at the outset of the appeal hearing that if the appeal were successful on the first of these issues, namely whether or not the Appellant falls to be regarded as a relevant person, then it was agreed among the parties that in each case the matter should be remitted to the Children's Hearing for reconsideration of the second issue, namely whether the children should have contact with their grandmother, the Appellant. I was therefore not asked to, and did not, consider whether or not the Children's Hearing's decision to terminate contact was justified.

 

It was not necessary at the hearing of the appeal to hear evidence. The relevant facts of the matter were agreed, in terms of a Joint Minute of Admissions. The facts agreed were as follows: --

 

1. That the Appellant is the maternal grandmother of the children JY, born 25th December 2005, and SY, born 5th June 2007.

 

2. That the children are, and have been since 11th September 2009, subject to compulsory measures of care, initially under a Child Protection Order requiring them to reside with foster carers, and subsequently under a Supervision Order made on 12th February 2010. A Review Hearing was requested by Social Work in April 2010. A Hearing took place on 25th June 2010, and was continued to 20th August 2010 for a Safeguarder's report.

 

3. That on 14th May 2010 the Appellant was granted interim contact with the said children once every four weeks for a period of two hours, supervised by the Social Work Department. The interim contact order was made in this court, the relevant process number being F373/09.

 

4. That in terms of said court order the Appellant exercised contact with the said children on 20th May, 25th of June, 20th July and 20th August 2010. Prior to the contact order being made, the Appellant exercised contact for two hours each week from 8th October 2009 until early November 2009, and on 25th February 2010.

 

5. That the children have spent periods of time in the care of the Appellant.

 

6. That by letter dated 24th June 2010 the Appellant's agents wrote to the Scottish Children's Reporter Administration advising of the terms of the contact order, and requesting that the Appellant be regarded as a relevant person. SCRA responded by letter dated 7th July 2010, inviting the Appellant to attend at a Hearing on 20th August 2010.

 

7. That on 20th August 2010 the Appellant attended at the Children's Hearing, accompanied by a legal representative who was present to the end of the Hearing. The Appellant was not provided with any of the paperwork in respect of the Hearing, namely Grounds of Referral, Social Work reports or Safeguarder's report. She was unaware of the contents of the reports. The Social Worker present indicated that she had received reports from Bradford Social Work Department, suggesting that the Appellant drank while pregnant, and was in an unsuitable relationship. The Appellant denied these allegations, and was provided with no specification of the allegations to enable her fully and properly to answer the criticism. A request was made that the Appellant be regarded as a relevant person. This request was refused by the Children's Hearing on the basis that she did not have frequent enough contact to qualify as a relevant person. The Appellant was allowed an opportunity to submit to the Hearing that the contact she exercised was in the best interests of the children. The Hearing ordered that the Appellant should have no contact with the said children. The Appellant left before the end of the Hearing.

 

Submissions for Appellant

 

With reference to the case of Authority Reporter -v- S 2010 SLT 765, Mrs O'Neill submitted on behalf of the Appellant that the Children's Hearing's decision that the Appellant was not a relevant person was in breach of the Appellant's rights under Article 6 of the European Convention on Human Rights, in that she had not been afforded a fair hearing in the determination of her civil rights. It was Mrs O'Neill's position that the contact order obtained by the Appellant in this court gave her a civil right. She accepted that the contact order did not confer upon the Appellant parental rights and responsibilities, so as to bring her in that way within the definition of "relevant person" in section 93 of the 1995 Act.

 

Mrs O'Neill said that the case of Authority-v- S was concerned with the cases of two unmarried fathers, in whose favour contact orders had been made, and who were seeking to be accorded relevant person status. Mrs O'Neill submitted that the case of the Appellant here was on all fours with the case of one of the fathers in that case. That father had a pre-existing order for contact and had been exercising contact prior to the Children's Hearing. He, like the Appellant this case, had been allowed to attend at the Children's Hearing, but without access to any papers. The Children's Hearing refused to regard him as a relevant person. He appealed to the Sheriff, who refused the appeal. On appeal from the decision of the Sheriff, an Extra Division concluded that the definition of "relevant person" in section 93 of the Children (Scotland) Act 1995 would be incompatible with the Article 6 rights of the father in question, unless there were, pursuant to the court's duty under section 3 of the Human Rights Act 1998, read into that definition words which would have the effect of including within the definition of "relevant person" any parent enjoying contact in terms of a contact order under Part I of the Children (Scotland) Act 1995. The Division held that it was possible to read the definition in section 93 in that way, and accordingly found it unnecessary to make a declaration of incompatibility.

 

It was Mrs O'Neill's submission that, like the unmarried fathers in the case of Authority Reporter -v- S, the Appellant this case had, by virtue of the contact order she had obtained, been accorded a civil right. Her Article 6 rights were therefore engaged. She invited me to do as had been done in Authority Reporter -v- S, namely to hold, by interpreting section 93 of the 1995 Act in accordance with the Court's interpretative obligation under section 3 of the Human Rights Act 1998, that the definition of "relevant person" would be incompatible with the Appellant's Article 6 rights, unless there were read into that definition words which would have the effect of including in the definition a person such as the Appellant in whose favour a contact order had been made. Mrs O'Neill further invited me to allow the appeal on the basis that if I were with her in respect of her submissions as set out above, the Appellant had, by being refused "relevant person" status by the Children's Hearing, been denied a fair hearing in the determination of her civil right. The Children's Hearing had, she said, involved a determination of her civil right, in view of what was said at paragraphs [51] in Authority Reporter -v- S, in respect that the effect of the decision of the Hearing that the children should have no contact with the Appellant was that she had been unable to exercise contact in terms of the contact order made in her favour since that decision was made. In her submission that decision was clearly a material interference with the Appellant's civil right to exercise contact under the contact order, and therefore amounted to a determination of it.

 

Submissions for Reporter

 

Mrs Scullion, for the Reporter, submitted that the Appellant was not a relevant person. Section 51 (one) of the 1995 Act provides that only a relevant person has a right of appeal. Mrs Scullion's submission the Appellant did not come within the statutory definition of "relevant person". She therefore had no right of appeal, and the appeal should be dismissed as incompetent.

 

Mrs Scullion went on to explain that the Reporter has an obligation in advance of the hearing to decide who is and who is not a relevant person. The Appellant had been invited to the hearing as an interested party, in the same way as professional persons involved might be invited. The Reporter had known that she wanted to persuade the Children's Hearing to treat her as a relevant person, and had therefore invited her to attend, so that the Hearing could determine that issue.

 

I was referred by Mrs Scullion to the definition of "relevant person" in section 93 of the 1995 Act. In terms of that section "relevant person" in relation to a child means "(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act; (b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; (ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4)); and (c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child". It was her submission that the Appellant did not fall within any of these paragraphs.

 

In Authority Reporter -v- S the court had read words into paragraph (a) only. That paragraph refers to "any parent". In Mrs Scullion's submission, therefore, it is only in respect of a parent that the Act can have words read into it, so as to avoid incompatibility with the ECHR. The Appellant was a grandmother and not a parent, and therefore did not get the benefit of the decision in that case. It was further her submission that in that case the distinction was drawn between parents with contact orders and others with such orders. This, she said, was justified by the close biological relationship between parent and child.

 

Further, in Mrs Scullion's submission, relevant person status leads to considerable rights and obligations, including the obligation to attend at Children's Hearings, and the right to receive full papers in advance. She maintained that the court should be slow to extend the decision in Authority Reporter -v- S to persons other than parents with contact orders, otherwise the number of persons entitled to attend Hearings might be greatly increased. She made reference to the statutory duty on the Chairman of the Children's Hearing to limit the number of persons attending.

 

Mrs Scullion also submitted that the fact that the Appellant has limited contact has a bearing on whether or not she should be regarded as a relevant person.

 

Safeguarder's submissions

 

Mrs Henderson supported the Reporter's position. She submitted that the Appellant was not a relevant person either under statute, or by virtue of her Article 6 rights, and that the appeal should be dismissed as incompetent.

 

With regard to the case of Authority Reporter -v- S, Miss Henderson said that in view of what was said at paragraph [ 46] of the decision in that case, it was clear that the court had considered whether the words to be read into section 93 of the 1995 Act should apply to any person, or only to a parent. It was therefore it clear, she said, that the Appellant, not being a parent, should not have the benefit of the decision in that case.

 

Miss Henderson began to make submissions to the effect that irrespective of whether or not she fell to be regarded as a relevant person, the Appellant had in fact had a fair hearing. However, on being reminded by Mrs O'Neill, she acknowledged that it had been agreed that the appeal should proceed in respect only of the Hearing's decision that the Appellant should not be afforded relevant person status, and that if the Appellant succeeded on that issue, the case should be remitted to the Hearing for reconsideration of the question of contact between the children and the Appellant.

 

Response for the Appellant

 

With regard to Miss Henderson's point in respect of what was said at paragraph [46] of the case of Authority Reporter -v- S, Mrs O'Neill submitted that Miss Henderson had misunderstood her submission. She stressed that the appeal was not based on the Appellant having or enjoying parental rights and responsibilities. In her submission the discussion at paragraph [46) was in respect of whether or not a contact order could confer parental rights and responsibilities on a person.

 

Mrs O'Neill went on to stress that she was not in this appeal addressing the quality of the Hearing in respect of the issue of contact. It was her position that the Appellant should have been regarded as a relevant person, so as to afford her the right to a fair hearing on the issue of contact. In the case of Authority Reporter -v- S one of the unmarried fathers with a contact order had, like the Appellant in this case, been invited to attend the Hearing. The court in that case had made no distinction between that unmarried father and the other unmarried father. In Mrs O'Neill's submission, because the Appellant was not afforded relevant person status, and was not provided with full papers in advance of the Hearing, proper preparation was impossible. In addition, whilst oral reports were given at the Hearing, some novel issues were raised without notice. The Appellant had not had a proper opportunity to put forward a full and properly prepared case.

 

Discussion

 

Section 51 of the 1995 Act allows only a child or a relevant person (or relevant persons) or both (or all) to appeal to the Sheriff against a decision of a children's hearing. It was common ground that unless the Appellant fell to be regarded as a relevant person she no right to attend the Children's Hearing in respect of the children, JY and SY.

 

In terms of section 93 of the 1995 Act "relevant person" in relation to a child means "(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act; (b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; (ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4)); and (c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child". It was not suggested that the Appellant fell within any of paragraphs (a) (ba) or (c).

 

In the case of Authority Reporter -v- S the court held that a contact order in favour of an unmarried father who did not have parental responsibilities and rights, did not confer upon such an unmarried father parental responsibilities and rights. However, the Court held that an unmarried father in whose favour a contact order is made, does thereby acquire a civil right, in the determination of which he is entitled to a fair hearing, under Article 6 of the ECHR.

 

I cannot see that a grandmother, who does not have parental rights and responsibilities, but in whose favour a contact order is made, is in any different a position than an unmarried father with such an order. The contact order must, in my opinion, be regarded as conferring upon the grandmother, as it does upon an unmarried father, a civil right, in the determination of which she is entitled to a fair hearing.

 

The Court further held that while a Children's Hearing would have no power to create or take away the rights afforded by a contact order, the effect of a condition in a supervision requirement that a child should have no contact with her father in right of such a contact order would be to suspend the father's ability to exercise the right of contact. It was held that any decision of a Children's Hearing preventing or limiting contact under a contact order would materially interfere with the exercise of the right, and could thus readily be said to amount to a determination of it. Again, in my view, the same must be true of such a decision which materially interferes with a grandmother's right to exercise contact under a contact order in her favour.

 

The court in Authority Reporter -v- S went on to hold that the definition of "relevant person" in section 93 of the 1995 Act, construed according to ordinarily canons of construction, would be incompatible with the Article 6 rights of unmarried fathers with contact orders in their favour. The Court considered whether or not a declaration of incompatibility should be made, but decided that there was no reason to do so. It was held that, in accordance with the court's duty under section 3 of the Human Rights Act 1998, namely, so far as it is possible to do so, to read and give effect to primary legislation in a way which is compatible with the Convention rights, the definition of "relevant person" in section 93 of the 1995 Act could be read and given effect to in a way compatible with the Convention rights, and in particular with Article 6. It was held that paragraph (a) of the definition of "relevant person" in section 93 should be read as follows: "any parent enjoying parental responsibilities or parental rights or a right of contact in terms of a contact order under Part I of this Act".

 

As I have said, I see no reason why a grandmother in whose favour a contact order has been made, thereby conferring upon her a civil right, should be treated any differently than an unmarried father in whose favour such an order has been made. Accordingly, it seems to me that I am required, in respect of the Appellant in this case, to read and give effect to the definition of "relevant person" in section 93 of the 1995 Act, by reading in to that definition words which would bring the Appellant within the definition. To achieve that, in my view paragraph (b) of the definition should be read as follows: "any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act, or who has a right of contact with the child in terms of a contact order made under Part 1 of this Act."

 

I agree with Mrs O'Neill that in paragraph [46] of its decision in Authority Reporter -v- S the court did not differentiate between a parent and any other person, in relation to rights under Article 6 of the ECHR.

 

With regard to Mrs Scullion's submission in relation to the relevance of the extent of contact exercisable by the Appellant under the contact order, in my opinion the extent of that contact has no bearing on the issue - either the Appellant is a relevant person with a right to attend Children's Hearings, or she is not. It seems to me that the extent of contact would be relevant only in considering whether, under paragraph (c) in the definition of "relevant person" in section 93 of the 1995 Act, a person fell to be regarded as a relevant person. It might be that a person with very extensive contact would be a person who appears ordinarily to have charge of, or control over, the child in question. There was, however, no suggestion in these appeals that the Appellant was in that position.

 

For all these reasons I have concluded that in reaching its decision on 20^th August 2010 that the Appellant was not a relevant person, in view of the decision in Authority Reporter -v- S, the Children's Hearing erred in law, and that that decision was, and is, therefore not justified. Given my decision that the Appellant ought to have been afforded relevant person status, she clearly is a person who has a right of appeal under section 51 of the 1995 Act.

 

It follows that the appeals should be allowed, and that, as agreed among the parties, the case of each child should be remitted to the Children's Hearing for reconsideration, particularly in respect of the issue of contact between the children and the Appellant.