Scottish Sheriff Court Decisions

Sheriffdom of Glasgow and Strathkelvin at Glasgow

 

 

Case ref. SWA3436/12

Note by Sheriff Alan D Miller   in the appeal in terms of the Children (Scotland) Act 1995 s.51 by   JA   in relation to the child CM (born 2006)

 

Glasgow, 23 November 2012

Representation

For the appellant: Mr Allison, Livingstone Brown, Solicitors

For the Reporter: Mrs. Welsh, Scottish Children's Reporter Administration

Cases referred to:

Airey v Ireland (1979) A 32, 2 EHRR 305

Ghaidan v Godin-Mendoza [2004] 2 AC 557

In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291

Principal Reporter v K 2011 SC (UKSC) 91

Smith v Scott 2007 SC 345

 

The Appeal

(1)   In this case the appellant appealed against a decision of a Children's Hearing for Glasgow City, held on 29 October 2012, concerning the child CM. The appellant JA is the maternal grandmother of CM and has been recognised by the Children's Hearing to be a relevant person in respect of CM.

(2)   The Children's Hearing on 29 October 2012 was arranged to consider grounds for referral which had been established at Glasgow Sheriff Court on 4 October 2012. The Hearing decided to appoint a safeguarder, to continue consideration of the case to a later date and, in the meantime, to issue a place of safety warrant under section 69(7) of the Children (Scotland) Act 1995. The Hearing attached to the warrant 2 conditions about contact. Condition 2 stated "CM will have no contact with JA (Grandmother)".

(3)   The appeal was focused specifically on that contact condition. On the basis of alleged errors of fact and law, the note of appeal concluded:

"In all the circumstances of the case, it is respectfully submitted that the decision of the Children's Hearing to attach to the place of safety warrant a condition of no contact between the appellant and the child was unjustified and unreasonable. The court is respectfully invited to vary the existing condition of contact by substituting a condition ordering that the appellant and the child have weekly contact of two hours, unsupervised."

The Law

(4)   Once grounds for referral are accepted or established, a children's hearing considering a child's case under section 69 of the 1995 Act may continue the case to a subsequent hearing for further investigation (section 69(2)). At the same time they may issue a warrant requiring the child to be taken to and kept in a place of safety (section 69(7)). Under section 69(9) a warrant may contain such conditions as the children's hearing considers necessary or expedient, and specifically may "regulate the contact with the child of any specified person or class of persons": section 69(9)(b). Subsection 69(9) is in virtually identical terms to section 70(3) which regulates the power of a children's hearing to attach conditions to a supervision requirement.

(5)   The scope of the right of appeal to the sheriff, and of the sheriff's powers on appeal, are both set out in section 51 of the 1995 Act. The relevant subsections are:

"(1) Subject to subsection (15) below, a child or a relevant person (or relevant persons) or both (or all)-

(a) may, within a period of three weeks beginning with the date of any decision of a children's hearing, appeal to the sheriff against that decision; and

(b) where such an appeal is made, shall be heard by the sheriff.

......

(4) Where the sheriff decides that an appeal under this section has failed, he shall confirm the decision of the children's hearing.

(5) Where the sheriff is satisfied that the decision of the children's hearing is not justified in all the circumstances of the case he shall allow the appeal, and-

(a) where the appeal is against a warrant to find and keep or, as the case may be, to keep a child in a place of safety, he shall recall the warrant;

(b) where the child is subject to a supervision requirement containing a movement restriction condition imposed under subsection (3)(b) of section 70 of this Act or a condition imposed under subsection (9) of that section of this Act, he shall direct that the condition shall cease to have effect; and

(c) in any case, he may, as he thinks fit-

(i) remit the case with reasons for his decision to the children's hearing for reconsideration of their decision; or

(ii) discharge the child from any further hearing or other proceedings in relation to the grounds for the referral of the case; or

(iii) substitute for the disposal by the children's hearing any requirement which could be imposed by them under section 70 of this Act."

(6)   On the face of it, then, if upholding an appeal against a place of safety warrant the sheriff has only one option: to recall the warrant under section 51(5)(a). The sheriff appears to have no power under section 51 to do what was sought in this appeal.

(7)   The appeal was lodged on the morning of Thursday 8 November 2012. In terms of section 51(8), it required to be disposed of within 3 days, in other words by Sunday 11 November at the outside. In view of the shortage of time and the need to determine first whether the appeal was seeking a remedy which the court could competently grant, I instructed the sheriff clerk to invite the appellant's agent and the Children's Reporter to appear before me at 2pm on the day of lodging, specifically to argue the competency point, and on the understanding that if I decided the appeal was competent then a further hearing would be required on the merits of the appeal, with intimation given to all parties, within the statutory timescale.

(8)   I am grateful to parties for the efforts they made, in very short timescales, to enable the appeal to be argued and concluded.

Hearing on 8 November: Submissions

(9)   The appellant's solicitor submitted that the lack of any provision for an appeal to be taken only against a condition of a place of safety warrant gave rise to a plain incompatibility with the appellant's Convention rights, particularly in light of the provisions for appeal or review of conditions attached to a child protection order or to a supervision requirement. In a situation such as this, the apparent remedy provided in the sheriff's power to recall the warrant was not a remedy at all since in the circumstances of this case that would carry more invasive consequences, potentially placing the child at risk. The terms of section 51(5)(a) fitted uneasily with the reference to "in any case" in subsection (5)(c).

(10)         The incompatibility could be cured, in a manner consistent with the grain of the 1995 Act, by reading section 51(5) in such a way as to allow the court to dispose of an appeal in respect of a warrant by substituting its own disposal. He referred to Ghaidan v Godin-Mendoza [2004] 2 AC 557, and to Principal Reporter v K 2011 SC (UKSC) 91. He also provided me with a copy of a note issued by my sister sheriff, Sheriff Swanson, in a similar appeal she had dealt with in 2011.

(11)         The reporter founded on the unambiguous terms of section 51(5)(a). The appellant was asking the court to amend, rather than interpret, section 51(5). She differentiated the position under a child protection order, for which rights of review and appeal were provided as it was an emergency measure decided in short order, and the position where a supervision requirement was made, that being one of a range of options open to a planned children's hearing.

(12)         I invited parties to consider whether anything useful could be gleaned from comparing the relevant provisions of the 1995 Act to the equivalent provisions of the former Social Work (Scotland) Act 1968 and of the soon to be implemented Children's Hearings (Scotland) Act 2011. The appellant's solicitor noted that the terms of section 51(5)(a) of the 1995 Act appeared to have been drawn directly from the terms of section 49 of he 1968 Act, but without considering the new power for children's hearings to attach conditions to warrants.

Hearing on 8 November: Discussion

(13)         I approached the decision on competence by considering: whether the appellant's Convention rights were engaged; what the terms of the statutory provision meant and whether they gave rise to any incompatibility with the appellant's Convention rights; and then, if there was an incompatibility, whether the legislation could be read in such a way as to cure the incompatibility in this case.

(14)         On the first point, there appeared to me no question that the appellant's Convention rights were engaged in this situation: both her Article 8 right to private and family life with the child, and her Article 6 right to a fair hearing within a reasonable period of time. The decision of the Children's Hearing is clearly one which involves an interference in the appellant's private and family life, whether justified or not in terms of Article 8.2.

Analysis of the Legislation

(15)         The second question was whether there is any incompatibility between the appellant's Convention rights and the terms of section 51 of the 1995 Act. That requires both scrutiny of the terms of the Act and definition of the manner in which the appellant's rights had been subject to interference.

(16)         As the reporter argued, the meaning of section 51(5)(a) is plain and unambiguous. The appellant has a right of appeal against the warrant issued by the Children's Hearing, but if successful her appeal can result only in the recall of the warrant. Although subsection 51(5)(c) states that "in any case, [the sheriff] may, as he thinks fit" remit the case for reconsideration, discharge the child from all further proceedings or substitute his or her own decision, the fact that the first two of these three options are entirely inapt as outcomes for an appeal against a 22 day warrant indicated clearly to me that the phrase "in any case" must be read as following on from the reference in subsection (5)(b) to the child being subject to a supervision requirement. Given that and the clear terms of subsection (5)(a), I could see no basis for determining that any of the options available to the sheriff under subsection (5)(c) are applicable to an appeal against a warrant. It is necessary, however, to put the terms of subsection (5)(a) in perspective.

(17)         The Children (Scotland) Act 1995 superseded the Social Work (Scotland) Act 1968. Under the 1968 Act, both the powers of intervention available at various stages of procedure and the available rights of appeal were expressed in far simpler terms than in the 1995 Act. The provisions for emergency removal under the 1968 Act, section 37 did not allow for any form of direction or condition to be specified; nor did they allow for any form of appeal at all. Likewise, where a children's hearing decided that it was necessary to keep a child in a place of safety in the interim, their only means of doing so was by "detaining" the child in a place of safety for up to 21 days at a time under section 37 or 40 as appropriate: provisions which once again made no mention of the attaching of any conditions to the warrant.

(18)         Only in relation to the making of a supervision requirement did the 1968 Act allow a hearing to require a child "to submit to supervision in accordance with such conditions as they may impose" (section 44(1)(a); see also subsection (1)(b)), although the nature of any such conditions was not further explored, save to state that they might specify the place where the child was to reside.

(19)         Rights of appeal were set out in section 49 of the 1968 Act. Comparing that provision to section 51 of the 1995 Act, it is clear that the latter very much follows the shape and most of the language of the earlier statute, while also incorporating additional provisions. Thus, section 49(4) of the 1968 Act is replicated in identical terms at section 51(4) of the 1995 Act. It is clear also that section 51(5) of the 1995 Act is derived closely from section 49(5) of the 1968 Act, which states:

"(5) Where the sheriff is satisfied that the decision of the children's hearing is not justified in all the circumstances of the case he shall allow the appeal, and-

(a) Where the appeal is against the issue of a warrant for detention he shall recall the warrant, and

(b) in any other case, he may, as he thinks fit, remit the case with the reasons for his decision to the children's hearing for reconsideration of their decision or discharge the child from any further hearing or other proceedings in relation to the grounds for the referral of the case."

(20)         The two innovations in appeal powers introduced under the 1995 Act both relate to appeals against supervision requirements: the specific power to remove a secure accommodation or movement restriction condition, and the power to substitute a fresh disposal that would have been within the competence of the children's hearing. That is consistent with the wider powers given to children's hearings, under section 70 of the 1995 Act, to attach conditions to a supervision requirement. Indeed, a children's hearing is required, whenever making a supervision requirement, to consider whether to impose any condition relating to contact: section 70(2) and (5)(b).

(21)         As the appellant's solicitor said, under the 1995 Act children's hearings have almost identical powers to add conditions about contact to a warrant to keep a child in a place of safety. That is entirely appropriate, since a decision to refuse or to limit contact will often rank second only to the decision to remove a child from a relevant person's care in terms of the extent to which it authorises interference in the right to private and family life. It is thus strange to find that the sheriff's powers on appeal against a warrant remain unamended. I noted that the equivalent provision of the Children's Hearings (Scotland) Act 2011 - section 156 - does give the sheriff, on allowing an appeal against what will be called an interim compulsory supervision order, the power to make a fresh order at the same time as recalling the order made by the children's hearing.

Incompatibility with Convention Rights

(22)         I considered there is thus a clear lacuna in the terms of section 51 of the 1995 Act as it stands. The next question was whether that lacuna gave rise to any incompatibility with the appellant's Convention rights. In my view, in the circumstances of this case, it did. From the papers available to me, it appeared that the appellant was one of three relevant persons involved in the children's hearing proceedings about CM. The grounds of referral established on 4 October 2012 concerned a lack of parental care as a result of exposure to repeated domestic violence involving both parents. I understood that the Social Work Department have placed CM with her father, although she was previously placed with foster carers and before that with the appellant. The warrant under appeal included a condition regulating CM's contact with her mother as well as the condition prohibiting contact with the appellant. The reason why the children's hearing on 29 October considered that a further short-term warrant was required was because they also decided to appoint a safeguarder to seek to obtain CM's views and to examine areas of dispute between Social Work, the appellant and CM's mother.

(23)         All this indicated strongly that CM was caught in the midst of a complex situation with several parties in dispute over her care arrangements. It appeared entirely understandable in CM's best interests that the Children's Hearing on 29 October decided to issue a further warrant in order to maintain some control over the situation. Neither party to this appeal suggested it would in any way be in CM's best interests to recall the place of safety warrant.

(24)         A constant refrain in Convention case law is that the Convention "is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective": see, for instance, Airey v Ireland (1979) A 32, 2 EHRR 305; Reed and Murdoch, A Guide to Human Rights Law in Scotland (2^nd edition, 2008) paragraph 3.26. The best interests of the child, in the circumstances of this case, appeared to stand foursquare against any decision that would result in the recall of the warrant and the creation of a legal vacuum as regards her short-term care arrangements. While the appellant had a right to appeal against the warrant issued on 29 October 2012, that right was illusory unless the sheriff's powers on appeal could be read and applied more flexibly, as suggested by the appellant.

(25)         I found it instructive to compare the position on an appeal against a warrant with the position relating to either a child protection order or a supervision requirement. During the period of 8 working days between a child protection order being implemented and grounds for referral being presented at a children's hearing held under section 65(2) of the 1995 Act, the order must be considered by a children's hearing on the second working day (section 59(2) and (3)), who may continue the order with or without variation of any directions attached to it: section 59(4). The child or any relevant person (amongst others) may apply to the sheriff, both before and after the second working day hearing, to set aside or vary the order: section 60(7). The sheriff then has wide powers to continue, vary or recall the order or any part of it: section 60(11)-(13).

(26)         Where an appeal is taken against a supervision requirement, the appellant may ask the children's hearing to suspend the requirement pending hearing of the appeal: section 51(9)-(10). The provisions of section 51(5) offer the sheriff scope to consider on appeal either the supervision requirement as a whole, or any condition attached to it. Indeed, in my experience the majority of such appeals are exclusively concerned with conditions regulating contact between the child and a relevant person. If satisfied that the decision is not justified in all the circumstances, the sheriff may either remit the case for reconsideration or adjust the decision by using the power of substitution under subsection (5)(c)(iii).

(27)         As the reporter argued, neither of these situations is identical to the situation where a place of safety warrant is issued. A child protection order initiates proceedings on an emergency basis before the point at which the reporter decides whether referral to a children's hearing is both necessary and justifiable on the evidence (section 65(1)). There is perhaps a particular need for control and oversight when the threshold for intervention has yet to be formulated and tested. But what is remarkable is the number of possible avenues for challenge and review provided for within a very brief period of time. The gulf between that sophisticated array of powers of review and the blunt instrument form of appeal against a 22 day warrant issued by a children's hearing is striking.

(28)         As regards a supervision requirement, I did not accept the reporter's attempt to differentiate such a decision from the present case on the basis that it would only be made by a planned children's hearing after considering a range of options. That was precisely the position the hearing were in on 29 October when considering CM's case. The hearing could have made a supervision requirement, or continued the case for further investigation without issuing a warrant, or even have discharged the referral. Having decided that it was necessary to appoint a safeguarder and to issue a place of safety warrant, they had a wide discretion as to what (if any) conditions to attach. While a warrant may have effect for a rather shorter period than a supervision requirement, it is similarly an order for compulsory intervention in the child's life that impinges on private and family life.

(29)         It might nevertheless be suggested that the lack of any avenue for appeal solely against a contact condition in a warrant does not give rise to any incompatibility, as the warrant is only a short-term measure which must be reconsidered within 22 days. I did not agree. In a situation of interference in private and family life first by removing a child to a place of safety, and secondly by removing or restricting contact, it seemed to me that even in relation to short-life orders there must be an effective right of appeal, for the reasons given by the Supreme Court in Principal Reporter v K 2011 SC (UKSC) 91 at paragraph [43] on p.105:

"Two further points are apparent from the Strasbourg jurisprudence, exemplified by Elsholz v Germany (para 49). Thus, while the Court is prepared to allow the authorities a wide margin of appreciation in decisions about residence and taking a child into care,

'a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life'.

This reflects Strasbourg's understanding that it is one thing for parents to have to live separately from their children - after all, it is an inevitable result of parental separation that they cannot be together all the time - but another thing to restrict or bring to an end the contact between them. It also reflects Strasbourg's pre-occupation with ensuring that there are sufficient procedural safeguards where fundamental rights are in issue. In case after case, including, for example, McMichael v UK and Jucius and Juciuviene v Lithuania, the Court has found violations of Art 8, not because of the substance of the decision taken by the national authorities but because the family were not sufficiently involved in the decision-making process. The point of those procedural safeguards is to ensure that the interference is 'necessary in a democratic society'; in other words, that it can be justified as a proportionate response to a legitimate aim; or, as the Court normally puts it when considering the substance of the interference, that the reasons for the interference are 'relevant and sufficient' (see, eg K and T v Finland, para 135)."

(30)         In the circumstances of this case, I accordingly considered that the terms of section 51 gave rise to an incompatibility with the appellant's rights under both Article 8 and Article 6, because although a process of appeal is provided which apparently met the requirement for sufficient involvement in the decision-making process, in fact it failed to provide for such involvement on the critical question of contact.

Curing the Incompatibility

(31)         I then had to consider whether I had the power to read words into section 51 so as to cure that incompatibility. This question turns on the extent of the court's powers under section 3(1) of the Human Rights Act 1998, which states:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights."

(32)         The leading authority on how the courts should apply section 3 is the House of Lords case of Ghaidan v Godin-Mendoza [2004] 2AC 557. In the course of a characteristically subtle and comprehensive analysis, Lord Rodger of Earlsferry said at 600H-601C:

"For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546 suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the word that are to be implied, it may look as if it is 'amending' the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provision does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute."

(33)         Two further cases exemplify that distinction between interpretation and amendment. In the case of In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, the Court of Appeal had regarded elements of the legal framework for making and implementing care orders under the Children Act 1989 as being incompatible with the Convention rights of parents and children, By reference to section 3 of the 1998 Act, it effectively introduced a new procedure to identify milestones for the implementation of a care order and to allow for further application to the court if "starred" milestones were not met within a reasonable time. The House of Lords reversed this decision on the basis that it ran counter to the whole scheme of the Children Act 1989, which gave the courts no power to intervene in the way local authorities discharged their parental responsibilities under final care orders. Lord Nicholls said at 313F-G:

"a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate."

(34)         In Smith v Scott 2007 SC 345, the question before the Registration Appeal Court concerned the right of a convicted prisoner to vote: in legal terms, whether section 3(1) of the Representation of the People Act 1983 could be read in such a way as to make it compatible with the pursuer's rights under Article 3 of the First Protocol to the Convention. Giving the opinion of the court, Lord Abernethy stated at p.355-356:

"In our opinion to read down sec 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be, in the phrase used by Lord Nicholls of Birkenhead in Re S (Minors), to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a 'possible' solution would require to be selected."

(35)         I had no hesitation in concluding that to read words into section 51 so that the sheriff on appeal may recall or vary only a contact condition attached to a warrant, without requiring to recall the warrant as a whole, fell on the right side of the line between interpretation and amendment. It is entirely consistent with the grain of the legislation, as exemplified by the provisions for recall or variation of child protection orders and for appeal against supervision requirements: indeed, as discussed earlier it addresses an evident lacuna in the 1995 Act. It involves no innovation in the level of scrutiny of decision-making by children's hearings. It implies consideration of no range of policy issues and options.

(36)         Accordingly, as I indicated to parties present on 8 November, I considered the remedy which the appellant sought here to be one I could competently grant. In order to avoid any incompatibility with her Convention rights, I considered it necessary to read section 51(5)(a) of the 1995 Act as if the words "or, insofar as directed against a condition attached to the warrant, recall or vary that condition" appeared at the end of the subsection. That is consonant with the powers given to the sheriff on reviewing a child protection order which, in my view, is the nearest analogue to the situation here.

Hearing on 9 November

(37)         I fixed a further hearing for Friday 9 November to consider the merits of the appeal. The appellant's solicitor indicated his willingness to instruct sheriff officers to intimate the hearing to the parties who were not present, namely the father and the mother, that evening. I ordained him to do so. I dispensed with the requirement to intimate the hearing to the child and also dispensed with the requirement on the child to attend the hearing.

(38)         At the hearing, the appellant's solicitor appeared on behalf of both the appellant and the reporter. He advised me that the reporter conceded that the appeal should be allowed, as there was nothing in the reports available to the hearing to justify making a condition of no contact, and nothing in the hearing's statement of reasons to explain the basis for making the condition. That was vouched by the terms of an email to him from the reporter.

(39)         The solicitor had also spoken with the agents representing each parent, both of whom had been able to consult their respective clients. He understood that the child's mother supported the proposed variation of the condition to read that the appellant could have contact with CM once a week. The father was not opposed to contact being granted, as long as it was supervised by the social work department. The appellant was happy to accept supervision of contact.

Conclusion

(40)         Having read into section 51(5)(a) the words set out at paragraph (36) above, I thus allowed the appeal to the extent of varying the condition regulating the appellant's contact with CM so that it would now read "CM will have supervised contact with her grandmother JA once a week for 2 hours".