Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH Case Number: PO51/10
	JUDGMENT OF SHERIFF WILLIAM HOLLIGAN In the petition of The City of Edinburgh Council Petitioner for a Permanence Order under Section 80 of the Adoption and Children (Scotland) Act 2007 In relation to IS ­­­­­­­­­­­­­­­­­________________

Cunningham - City of Edinburgh Council

Aitken - Thorley Stephenson for the natural father

The sheriff, having resumed consideration of the cause, refuses to refer the proposal of the children's hearing dated 4^th April 2011 to the Principal Reporter; makes an interim order directing that there be one period of contact between I and S between now and 2^nd June 2011 upon the same conditions as those prescribed in the existing supervision requirement (as varied on appeal); continues consideration of further interim orders as to contact to the hearing hereinafter assigned; continues the pre proof hearing until 2^nd June 2011 at 9.30am within the Sheriff Court House, 27 Chambers Street, Edinburgh EH1 1LB.

16^th May 2011

[1] These are proceedings in which the petitioner, The City of Edinburgh Council ("the Authority"), seeks a Permanence Order in relation to the child I who is 4 years old. The natural father, S, opposes the petition. The matter came before me for a hearing assigned pursuant to Rule 51(6) of the Sheriff Court Adoption Rules 2009 ("the 2009 Rules").

[2] Before I turn to the legislation the relevant facts are as follows. I is subject to a supervision requirement pursuant to the Children (Scotland) Act 1995 ("the 1995 Act"). One of the conditions of supervision concerns the contact she has with S. At a children's hearing on 1^st September 2010, held prior to the commencement of these proceedings, a children's hearing decided to reduce contact between I and S from once a month to once every three months. S appealed against that decision to the sheriff. Having regard to the reasons given by the children's hearing, the Reporter conceded that the appeal ought to be allowed. By interlocutor dated 11^th January 2011 the appeal was allowed. The presiding sheriff substituted his own decision for that of the hearing and allowed contact to take place between I and S once a month, on certain conditions which I need not consider.

[3] Contact took place in January, February and March 2011. The Authority sought a review of the supervision requirement. In the Authority's view, contact was not proceeding well: I returned unsettled; her behaviour was unsatisfactory; her sleeping pattern was affected; she was becoming incontinent. The Authority sought a reduction in contact between I and S to once every three months.

[4] S disputes the factual position of the authority. He denies that I's emotional needs are being affected. Furthermore, a major issue in the Permanence Order proceedings concerns the relationship between I and S and contact between them. Both parties have instructed experts to observe contact but neither has yet reported. Had the children's hearing agreed to a reduction in contact the experts would not have been able to observe contact and prepare reports for the Permanence Order proceedings.

[5] A children's hearing was convened for 4^th April 2011. Standing the existence of the Permanence Order proceedings the children's hearing prepared a report for the court. Read short, the report recommends modification of the supervision requirement so as to reduce contact between I and S to once every three months. In accordance with the procedure laid down in Rule 51 of the 2009 Rules the report was intimated to S. S intimated his opposition to the proposal. Accordingly, I decided to assign a hearing before making my decision. The matter called before me on 27^th April. For administrative reasons it was adjourned until 11^th May.

[6] In order to resolve this matter it is necessary to make reference to certain parts of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") and the 1995 Act. Beginning with the 2007 Act:-

"Section 95

(1) Subsection (2) applies where -

(a) an application is made for a permanence order, or variation of such an order, in respect of a child.

(b) the application has not been determined... and

(c) a children's hearing proposes to -

...

(ii) modify under paragraph (c) or (d) of subsection (9) of section 73 of the 1995 Act, a supervision requirement that has been made in respect of the child.

(2) The children's hearing must prepare for the court to which the application has been made a report containing such information as the Scottish Ministers may by regulations prescribe.

Section 96

(1) Subsection (2) applies where an application is made for a permanence order, or variation of such an order, in respect of a child.

(2) A supervision requirement in respect of the child may not be -

...

(b) modified under paragraph (c) or (d) of subsection (9) of section 73 of the 1995 Act,

until the application is determined...

(3) Subsection (2) does not apply if the court to which the application is made refers the child's case to the Principal Reporter (whether following receipt of a report under section 95 or otherwise)

Section 97

(1)  Subsection (2) applies where an application is made for a permanence order or a variation of such an order, in respect of a child.

(2)  The appropriate court may make such interim order as it thinks fit.

(3)  Subsection (4) applies where -

(a)   the child in respect of whom an interim order is to be made is subject to a supervision requirement, and

(b)  the court is satisfied that, were it to make an interim order in relation to the child, compulsory measures of supervision in respect of the child will no longer be necessary.

(4)  The court must make an order providing that, on the making of the interim order, the supervision requirement ceases to have effect.

(5)  If -

(a)   the child with respect of whom an interim order is made is subject to a supervision requirement, and

(b)  the provisions of the order conflict or are otherwise inconsistent, with the requirement

the provisions of the order prevail."

The relevant parts of the 1995 Act are as follows:-

"Section 73(8): The Principal Reporter shall -

(a)   arrange for a children's hearing to review any supervision requirement in respect of a child where -

...

(iva) the case has been referred to him under section 96(3)... [of the 2007 Act]

(9) Where a supervision requirement is reviewed by a children's hearing arranged under subsection (8) above, they may -

...

(b)  terminate the requirement;

(c)   vary the requirement;

(d)  insert in the requirement any requirement which could have been imposed by them under section 70(3) ... or;

(e)   continue the requirement, with or without such variation or insertion"

[7] In relation to the submissions of the parties I summarise them as follows. For the Authority, Miss Cunningham invited me to remit the matter to the children's hearing so as to implement their proposal. Initially Miss Cunningham submitted that if circumstances had changed since the initial proposal it would be open to the children's hearing to take another course. In effect the court was being asked to ratify the proposal of the children's hearing. I was referred to a decision of Sheriff Mackie in the case of The City of Edinburgh Council, Petitioners (No.1) 2010 Fam LR 89. In that case, where no reference was made, the proposals of the children's hearing were dramatic. That is not the case in the current situation. There are in effect only two more contacts assigned before the proof fixed for the Permanence Order. For S, Mr Aitken invited me to follow the reasoning in the City of Edinburgh Council Petitioner case. In short, the sheriff held in that case that it was difficult to see circumstances where there would be a reference to the Reporter. The proposal in effect pre-judges what the court will say. It is not open to the court to tell the children's hearing what it can do. A practical solution to the current issue would be for the court to make a decision in terms of section 97 by way of an interim order. Any such order would prevail over a supervision requirement. There was a difficulty with the legislation. If the matter were referred back to a children's hearing by the Principal Reporter then it would be open to the children's hearing to make any order that they wish which might extend beyond the proposal. That might lead to an obligation upon the children's hearing to refer the matter back to the court which would introduce a degree of circularity. The court ought not to make any reduction in contact today. There is no particular guidance in relation to the making of interim orders. Rule 51(5) does gives the court power to make any orders the court considers appropriate for the expeditious progress of the case. The proof itself is not far away.

[8] I agree with Sheriff Mackie that when one analyses sections 95 to 97 of the 2007 Act the Parliament has provided that, whilst a Permanence Order is being considered, it is the court which is the principal forum for making decisions in relation to a child. Obviously, it is by no means unusual for two regimes of childcare to run in tandem. That said, the statutory provisions are not easy to interpret. I start by referring to section 96(2) which seems to me to be the general provision preventing, in this case, modification of the terms of a supervision requirement whilst consideration of the Permanence Order is pending. The 2007 Act recognises that circumstances may arise which call for a review of supervision requirements If a children's hearing, acting pursuant to its statutory duties, proposes to modify a supervision requirement, section 95 requires that, prior to considering whether to do so, it submit a report to the court. The form of that report is prescribed by Scottish Ministers and is to be found in the Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Permanence Orders Regulations 2009, No. 169 of 2009) ("the regulations"). Read short, regulation 3 requires that the report contains details of the terms of any current supervision requirements; the terms of any proposed modification of any current requirement; the reasons for making that modification; and a further report of proceedings. The report prepared for the court in this case satisfies the regulations. The 2007 Act is silent as to exactly what the court is supposed to do with the report. It does not expressly say that the court has the power to refer the matter to the Principal Reporter; it is more a matter of inference from section 96(3). It seems to me that by a combination of sub-section 96(3) of the 2007 Act and sub-section 73(8) of the 1995 Act the court has the power to refer the matter (and I use the word generally) to the Principal Reporter. It was a matter of agreement before me that if such a reference is made to the Principal Reporter he must, pursuant to section 73(8)(a), refer the matter to the children's hearing. A major issue between the parties is upon what basis the court should decide whether or not to refer the matter to the Principal Reporter. As I have said, there is no express guidance given to the court as to on what basis it should exercise its power. In my opinion the basis is to be found within the general scheme of the relevant parts of the 2007 Act. In short, if a Permanence Order is made it affects the long term interests of the child. Almost by its very nature it is intended to have permanent effect. It seems to me that what sections 95 to 97 seek to do is to prevent there being a clash between a Permanence Order and the supervision requirement. Put another way, given the court's pre-eminent position, section 96(3) is the gateway through which the proposals of the children's hearing are considered. In my opinion, the function of the court is to have regard to what the children's hearing proposes to do and to consider what, if any, effects such a proposal will, or may have, on the Permanence Order proceedings. In effect, the court is given the function of policing any overlap there may be between the two statutory procedures. To that extent, I agree with Mr Aitken that the court is not deciding whether the proposal should be approved or granting its imprimatur to the proposal. Rather, it is deciding whether the children's hearing should proceed to consider the proposal. For example, if what the children's hearing proposes is a minor variation to the supervision requirement which will not have any detrimental effect upon the Permanence Order then the children's hearing should be free to proceed to consider the proposal. It maybe that, having heard parties, the children's hearing decides not to proceed with the proposal. I should add that both parties were agreed that if the children's hearing then proceed to consider such a proposal the ordinary rights of appeal pursuant to section 51 of the 1995 Act would apply. I agree with that submission. In Mr Aitken's submission, the difficulty is that if the children's hearing were to be allowed to consider the proposal (and it will almost inevitably be a differently constituted hearing from that which made the proposal) then there would be nothing to stop them making any order they wish in terms of section 73(9). If it was different from the proposal that in itself might give rise to a further requirement for a report and therefore introduce a degree of circularity. I do not agree. It seems to me that one has to read the provisions of sections 95 and 96 together with provisions of section 73. In my opinion, where a children's hearing has made a proposal to vary the terms of a supervision requirement, if the court does refer the matter to the Principal Reporter then the children's hearing will be limited to consideration of the proposal which was the subject of the report to the court. Such a construction seems to me to make sense of the overall purpose of the legislation and also avoids any degree of circularity. The court knows what the children's hearing proposes to do and is content for the children's hearing to consider that proposal because it will not, or is unlikely to, interfere with the Permanence Order proceedings.

[9] I turn now to the question of interim orders. At the outset I should say that the terms of section 97(2) are extremely wide. The court may make "such interim order as it thinks fit". Although Rule 52 of the 2009 Rules provides a mechanism for the parties to make application to the court for an interim order, both parties were agreed, rightly in my view, that there would be nothing to prevent the court making an interim order in the absence of a formal written motion but obviously only after parties have been heard. I should add that, at one point there was the suggestion that the court might require to have an evidential hearing before deciding whether to refer the matter to the Principal Reporter and whether to make an interim order. I have to say I have great difficulty in envisaging circumstances in which that would ever be appropriate. I also reserve my opinion as to whether it would even be competent. It seems to me that sub-sections 97(3) and (4) combine together to give to the court the power to terminate a supervision requirement upon the making of an interim order. However, I do not consider that section 97(3) and (4) require that a supervision requirement be terminated in the event of an interim order being made. To that extent I agree with Mr Aitken that section 97(5) anticipates that an interim order may be made whilst a supervision order remains in force. However, in that case the terms of the order made by the court will prevail over that of the supervision requirement. On the facts of this case both parties accepted that, if I were minded to do so, it would be open to me to make an interim order. Before I leave the issue of the interpretation of these provisions there is one further matter which I ought to mention. If one considers the terms of the 1995 Act it is clear that in making any decision in relation to the provisions of the Act the court and a children's hearing are, read short, enjoined to consider the welfare of the child as being its paramount consideration (sections 11(7) and 16(1)). Although section 84(3) has a similar provision it relates to the making of a permanence order. Neither agent was able to point me to any similar provision in relation to the question of decisions to refer to the Principal Reporter and interim orders. If that is correct I find it a surprising omission from the statute.

[10] On the facts of this case, a proof has been assigned to commence on 20^th June 2011 and successive days. Standing the current supervision requirement I was told there are only two periods of contact left before the proof begins. Were I to refer the matter to the Principal Reporter it is highly unlikely that a children's hearing would be convened in time to deal with anything other than a single period of contact. That said, contact is clearly a key issue in relation to the Permanence Order. I am inclined not to refer the matter to the Principal Reporter. I do so largely on account of the practical considerations I have referred to and also because of the importance of the question of contact in relation to the Permanence Order. I shall however make an interim order. I shall direct that contact will take place for one further period between now and the date which I shall assign for a continued pre-proof hearing namely 2^nd June 2011. I shall continue consideration of all questions of contact to that date. The date of the one period of contact shall be the date on which contact would have taken place in accordance with the supervision requirement and will also take place on the conditions previously prescribed.