SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

B821/13

JUDGMENT

by

SHERIFF A G McCULLOCH

in Appeal by

A M M

in terms of Section 160(1)(a)

of the Children's Hearings (Scotland) Act 2011

against

the determination of a Pre Hearing Panel

held at Glenrothes

(1) This is an appeal by A M M against a decision of the pre hearing panel held at Glenrothes on 13 December 2013. That panel determined that the appellant was not a relevant person in respect of her grandson, JM (13/11/2010). The appellant was represented by Mr Ritchie, the reporter was represented by Ms Brownlie, and the mother of JM was also present. No safeguarder has been appointed. The background facts are agreed, and can be summarised as follows.

(2) A child protection order was granted at this court on 31 October 2013, and at the second day hearing in respect of that child protection order, a children's hearing made an interim compulsory supervision order, which required JM to reside with the appellant. That order was renewed at the eighth day hearing. In light of allegations made by JM's mother about the appellant, social workers removed JM on or about 22 November, and he was placed into foster care, a decision ratified by a children's hearing on 26 November 2013. The appellant was not invited to that hearing. On taking legal advice, the appellant sought relevant person status, and a pre hearing panel was convened on 13 December for that purpose.

(3) At the hearing before the pre hearing panel, the appellant argued that she fulfilled the criteria of having been significantly involved in the upbringing of JM. Firstly, he had been placed with her by a previous panel for just over three weeks, and in the second place throughout his life she had played a significant part in his care, having him to stay every Friday, overnight, additional days and occasional weekends. She had assisted her daughter as best she could, but there was now animosity between them. Members of the panel had questioned the appellant on whether she had involved herself in medical, dental and nursery decisions regarding JM. She conceded that she had not, and largely for that reason the panel decided, narrowly, that she could not be deemed a relevant person, as her involvement in JM's upbringing was not, in their opinion, significant.

(4) In arguing the appeal, Mr Ritchie referred to the legislation. Section 81(3) of the Children's Hearings (Scotland) Act 2011 states, "The pre hearing panel must deem the individual to be a relevant person if it considers that the individual has (or recent had) a significant involvement in the upbringing of the child." He submitted that for the reasons he had put forward at the pre hearing panel, the appellant did indeed have a significant involvement. The panel had interpreted the matter too narrowly. We are dealing with a young child, who, fortunately, had required little medical or dental intervention. The appellant had given support and advice to her daughter regarding the child, for example ensuring that she took him for his age appropriate injections and vaccinations. He also pointed out that there was little else that she could do, because she did not possess parental rights and responsibilities. However, during the period the child had been placed with her by the panel, during November 2013, she would have been able to exercise those powers had the need arisen.

(5) In response, Miss Brownlie for the reporter submitted that the panel had been entitled to take the decision that they did, and that just because it was a narrow decision did not mean that it was not justified. She provided to me the only two authorities that she was currently aware of, being my own decision in the appeals by AG and MT, and a decision of Sheriff TAK Drummond. These cases had, however, as would invariably been the case, been determined on their own facts and circumstances. She also referred to the practice and procedure manual issued to children's hearings which in part 4, at page 21, dealt with the issue of relevant person. It confirmed that the test was of significant involvement in the upbringing of a child, quoted the Oxford English Dictionary definition of upbringing as, "the treatment and instruction received by a child from its parents throughout its childhood", and thereafter had certain case examples. She accepted that this was not authoritative. She also referred to the third edition of "Children's Hearings in Scotland" by Professor Norrie and, in particular, section 5.13.

(6) Having considered the matter carefully, I took the view that the panel decision was not justified, and I have deemed the appellant to be a relevant person. I took the view that the panel approached the matter on too rigid a basis. All decisions relative to a child, including those made by a children's hearing, or a pre hearing panel, or a sheriff, must have at its heart the "best interests of the child" principle. Thus, when looking to see if a person should be deemed as a relevant person, and applying the test of significant involvement (past or present), the consideration must be made in the light of the child's best interests.

(7) In the present case, it was quite clearly the case that the appellant had been involved in the care and upbringing of the child on a regular, weekly basis; that she had provided assistance and guidance to the child's mother; and for a period in excess of three weeks she had the sole responsibility for the care and upbringing of the child, when he was placed with her by social workers, and subsequently by a children's panel. It also has to be remembered that only after relevant person status has been granted, or exists by virtue of section 200 of the 2011 Act, that the relevant person is able fully to participate in important decisions being made by the panel about the welfare of the child.

(8) For all of these reasons, and in terms of the specific facts and circumstances relevant to this case, I took the view that the approach to the test had been applied too narrowly by the panel and that it was therefore not justified.