SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

B517/13 and B524/13

NOTE

by

SHERIFF A G McCULLOCH

in the appeals by

AG and MT

in terms of Section 160

of the Children's Hearings (Scotland) Act 2011

against

a decision a Pre Hearing Panel

held at Glenrothes on 23 August 2013

in respect of the children

MT and CT

Act Herbert (mother) & Chalmers (father)

Alt Brownlie (Reporter)

[1] These are appeals under Section 160 of the 2011 Act by parents of two children against a determination of a pre hearing panel that two named persons, foster carers, are deemed relevant persons in relation to the children. The appeals were lodged on Monday of this week so, in terms of Section 160(6)(b), they must be disposed of today. If I am satisfied that the determination is justified, I must confirm it; if not satisfied, I must quash it.

[2] A pre hearing panel must deem an individual to be a relevant person if it considers that the individual has, or has recently had, a significant involvement in the upbringing of the child [see Section 81(3)]. In the present case there was no application by these individuals but, instead, the reporter referred the matter on his own initiative [see Section 79(2)(b)]. The facts, largely undisputed, are that the children have been placed with these particular foster carers for about eighteen months. The foster carers have attended previous panel hearings, although they were held under the 1995 Act. The father has made an application for variation of the contact arrangements and, under the transitional provisions, the application is now to be dealt with under the 2011 Act.

[3] The appeals are in two parts. The first is that the pre hearing panel erred by deeming these foster carers as relevant persons. The second is that by doing so the parents' Article 8 rights have been unlawfully interfered with. Dealing with that latter point first, it is clear to me that there will often be conflict between certain rights of certain family members inter se such as parents against children. The right is only for respect for family life. There may well be a conflict between some the terms of the 2011 Act and the parents' Article 8 rights, but Section 6 of the Human Rights Act 1998 makes it clear that a public authority, and SCRA and, presumably, the pre hearing panel, are such, cannot act in a way which is incompatible with a convention right; that to do so would be unlawful. But that does not apply to an act if as a result of a provision of primary legislation it could not have acted differently. Here, as we know, the 2011 Act at Section 81(3) states that the pre hearing panel must deem an individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in the upbringing of the child. Note the use of the word "must". The pre hearing panel has no discretion once it is considered that there is or has recently been a significant involvement in the upbringing of the child or children.

[4] I accept that there are concerns about the effect of that decision. It means that the foster carers in this case will receive documents and reports to which they would not otherwise be entitled. These documents and reports may well contain certain private information which might otherwise be deemed personal [see, for example, Gaskin v UK, app 10454/1983], but the overarching principle is the welfare test. Section 25 of the 2011 Act requires all decisions, whether by a sheriff or children's hearing or pre hearing panel, to have regard to the need to safeguard and promote the welfare of a child throughout the child's life as the paramount consideration. On one view, and indeed it is my view, the child's welfare right trumps that of a parent's Article 8 right, where those rights appear otherwise to conflict.

[5] The 2011 Act, as did its predecessor the 1995 Act, allows a State to interfere with family life, where necessary for reasons of child protection or public policy. There must be safeguards in place to minimise such interference, but I find that the 2011 Act, and the Rules associated with it, insofar as relevant to these particular appeals to be apt. Accordingly, I do not find favour with the ECHR argument. Any fear about inaccurate or inappropriate material finding its way to foster carers or a child can and should be dealt with by an application under Rule 84 of The Children's Hearings (Scotland) Act 2011(Rules of Procedure in Children's Hearings) Rules 2013 so there is in place a measure of protection afforded against any disclosure.

[6] The first argument was directed at the decision itself. It was not normal under the 1995 Act for foster carers to be made relevant persons, but it was competent under the statutory test then in force [see the case of TM and JM v MN and Cameron 8 February 2002]. Parliament defined in Section 200 of the 2011 Act those who are relevant persons by right. These include parents and those who have certain parental rights or parental responsibilities vested in them but, no doubt having regard to the Supreme Court decision in the Principal Reporter v K, the Scottish Parliament added a procedure whereby individuals could seek to be deemed as relevant persons. That procedure is set out in sections 79 and 81. I have no doubt it was intended to cover the unmarried father or wider family member situation and clearly it does just that. I doubt that it was really Parliament's intention to include foster carers as, if that was intended, they could and perhaps should have been included in the Section 200 definition given that their function is itself a creation of statute and they operate within a social work and children's hearing framework. Be that as it may, in this case the pre hearing panel has deemed them to be relevant persons.

[7] The appellants argue that that decision was not justified. They argue that effectively the local authority is acting in loco perentis having supervision of the children under the 1995 Act. Where a children's hearing has made a supervision requirement under Section 70 of the 1995 Act, a local authority is required by Section 71 to give effect to it. They recommend particular foster carers to the children's hearing who determine residence of the children with them. These foster carers are effectively the agents of the local authority. They are paid both an allowance and a fee for acting as foster carers. They do not choose the individual child and they must act in accordance with social work and children's hearing instruction or direction. They cannot, for example, choose a child's school. They are not free to bring up a child as they would wish but must comply with social work directions. As such, it is said, they are not "individuals", as opposed to a granny or a sibling. The 1995 Act had a qualification in the relevant definition of relevant person to be found in Section 93 of that Act, which included 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. The reference to "employment" is not found in the 2011 Act. Did Parliament really intend to open up relevant person status to, for example, residential school key workers, special school head teachers and the like? If so, they should have properly legislated for it, which they have not done. Further, it was argued that any foster carers can be replaced at any time by a children's hearing or the social work department, thus their input into a child's life is transient and is purely dependent upon their appointment. Indeed a placement might break down, necessitating a change of foster carer. I was advised that a LAC (looked after child) review had recently, but after the pre hearing panel decision, heard of a possible breakdown. However, I took the view that I could not have regard to that information as I was only concerned in the decision taken by the panel. In any event, the Act provides at Section 142 a mechanism for review of relevant person status.

[8] The reporter answers these points by simply pointing to the wording of Section 81(3). Guidance has been given by the Principal Reporter to panels which has been followed by the Pre Hearing panel in this case. That guidance suggests that foster carers who have been involved for some time with a child should meet the test in s81(3), recognising that temporary, or short term, or respite, carers would be unlikely to meet the test [see production 11 for Reporter]. It is however, a matter of degree.

[9] It is clear to me that by deeming an individual a relevant person a significant step is being taken. It creates rights such as the receipt of papers, and the power of appeal. It gives foster carers the same position within the 2011 Act framework as that of the natural parents. It may create conflicts as between the foster carers on the one hand and the local authority responsible for them on the other, for example over an award of contact. But any decision taken by a pre hearing panel must have the child's welfare as its paramount consideration. I can see no real prejudice to the children in the decision. It was suggested that sight of information about the parents in reports might have the effect of changing the foster carer's views of the parents, which might have the effect or enable them to influence the views of the children or disrupt the contact arrangements. In my opinion, such possible prejudice is removed and can be managed both by the children's hearing and social work. I accept that foster carers are by their very nature a transient involver in a child's life, but the carers in this present case are there at present and, in my view, it is clear and obvious that they do have a significant involvement in the current upbringing of the children. Even if their involvement is to end soon, should it be the case that the placement is breaking down, the wording of the section to include the recent past would cover their current position. I do not consider that this is necessarily what Parliament intended but, on the facts of this case, I find the determination justified and I confirm it. As I indicated in the course of the discussions, I could see a role as relevant persons for those foster carers who had been approved as prospective adopters for a child. Such carers would clearly be more than transient in a child's life, and their involvement would obviously be significant. But there is no such restriction in the 2011 Act, as one might have expected. Thus each application for deemed relevant person status must be dealt with on its own merits.

[10] I would express my thanks to the agents for assisting in the almost impossible timescale allowed to me in this case.

A G McCulloch

Kirkcaldy 28 August 2013