2014 SCFAL 5

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK

B278/12                                                DECISION

by

Sheriff K J McGowan

in

Appeal

under

Section 51(1)

of the

Children (Scotland) Act 1995

by

GD

Appellant

against

a Decision

of the

Children’s Hearing for Falkirk

dated 17 May 2012

Introduction

• [1]The decision appealed against in this case is a decision of the Children’s Panel (“the Panel”) at a Children’s Hearing held on 17 May 2012 to continue a requirement under Section 73(9)(e) of the Children (Scotland) Act 1995 ("the Act") in respect of the child, AF, born 22 November 2004. The terms of the decision were to continue the supervision requirement then in force and to continue the following conditions appended thereto:
  1. that AF shall have overnight contact with (the appellant) from Sunday until Wednesday (hereinafter referred to as "the contact condition") and
  2. that AF child shall attend XXXX Primary School until the end of June 2012 (hereinafter referred to as "the schooling condition").
• [2]The appeal is brought by AF’s father.
• [3]The matter came before me on 27 June 2012. I heard submissions from Mr. Travers, Solicitor for the appellant; from the Reporter; Mrs Gianelli, Solicitor for CF, the mother of AF; and from Mr. Kee, Solicitor who was appointed as the Safeguarder to AF on 7 February 2012. I was referred to a bundle of documents produced by the Reporter (hereinafter, “Production 1” etc).
• [4]Having heard the submissions, I continued the case until 4 July to allow me to consider my decision. All statutory references are to the Act 1995.

  Submissions for appellant

• [5]Mr Travers’ primary position was that there were no circumstances justifying compulsory measures of care. Any such measures should be in place for the shortest time possible: Section 73(1)
• [6]In relation to the contact condition, that simply reflected the latest interlocutor of 13 April 2012 of the Court in the action which was before it in relation to parental rights and contact and which was presently sisted. That action had been raised because the appellant’s position was that the further involvement of the Panel was not required.
• [7]In relation to the schooling condition, there was no dispute between the parties about schooling. Accordingly, why was such a condition necessary or desirable? There were no facts which supported such a condition.
• [8]In short, the involvement of the Panel was no longer necessary.
• [9]The Reporter might seek to place reliance on the ongoing conflict between the parties about residence. It was accepted that there was such conflict, but it was a quantum leap to say that compulsory measures of care were needed.
• [10]There was nothing in the paperwork produced by the Reporter that justified compulsory measures of care. There was nothing which indicated how the conflict was to be resolved or what steps were going to be put in place for the parties or AF.
• [11]These circumstances did not comply with the statutory requirement justifying compulsory measures of care.
• [12]In any event, the decision to impose these conditions was a perverse one. At previous hearings, the Panel had stated continually that AF was to be rehabilitated with CF. There were two problems with them adopting that position.
• [13]Firstly, it diminished the appellant's position and reduces his ability to achieve his long term aim of obtaining residence. A supervision requirement with these conditions potentially prejudiced the appellant's position.
• [14]Secondly, the condition that the child should attend XXXX School in YYYY was part of Panel putting in place a system to achieve its long term aim of rehabilitation of AF to the full time care of CF. That was a flawed approach by the Panel. It gave no consideration to what was happening to AF when the decision about his schooling came to be made (i.e. now). That approach could not be legally justified. The Panel was manipulating its decisions in a way designed to achieve its stated aim of rehabilitation of AF to the full time care of CF.
• [15]The Panel had not complied with its statutory duties. Given that the contact condition reflected the interlocutor of the court, why could it be said to be necessary to have it as part of a supervision requirement? There was nothing to justify the decision in relation to the schooling condition.
• [16]The appellant had serious concerns about the ability of CF to look after AF. The original reason that the Panel was involved was due to concerns about CF's ability in that respect. It was nothing to do with the appellant.
• [17]The present position was that there was no active planning going on in relation to rehabilitation of AF to CF’s care. Accordingly, AF's welfare was not being properly addressed.

  Submissions for Reporter

• [18]At the relevant Hearing, a full discussion took place. Mr. Kee had been appointed as Safeguarder and he was present. He had been appointed because of the conflict between the appellant and CF.
• [19]The Safeguarder and the Social Worker had made recommendations. The supervision requirement was not varied. The condition schooling condition was to prevent any change in AF's schooling until the end of the school year. An early review had been fixed.
• [20]AF was on supervision because of issues that had come to light in 2010.
• [21]There was no agreement between the appellant and CF as to where AF was to go to school. The Panel had simply continued the schooling condition as previously written. The Panel had hoped the parties would have come to some agreement. An early review had been set for the beginning of August.
• [22]The appellant had said that the contact condition was no longer required because he had a Court order. The Panel agreed that the current arrangements seemed to be working.
• [23]There was conflict about residence and the immediate contact arrangements. The main conflict was about schooling.
• [24]Panel members were not in the habit of manipulating their decisions

  Submissions for CF

• [25]CF wished AF to be under the supervision of social work. She considered that the appellant is attempting to bypass the Panel by raising a court action.

  Submissions for Safeguarder

• [26]The question was whether the requirements and conditions were justified or not. The Panel had followed the Safeguarder's recommendations. Social work made the same recommendations. A number of reports had been prepared.
• [27]Historically, CF had been AF's primary carer. In 2010, serious issues arose. Prior to that, the appellant was having fortnightly contact with AF. CF’s health has improved. The residence arrangements had been four nights with the appellant and three nights with CF. That had been changed so that it was three nights with the appellant and the four nights with CF. The supervision requirement had been continued.
• [28]The starting point was Section 16 of the Act. The present position was that CF’s health was being monitored. There were other agencies involved. The Panel was the most suitable body to deal with this. The court was not set up to look at all the relevant matters in the same manner.
• [29]Regrettably, the parties were not prepared to go to mediation.
• [30]The key issue was: what is AF's best interests? In answering that question, it was legitimate for the Panel to do what it had done. The established grounds had not yet been completely resolved. There were still health issues in relation to CF.

  Reply for appellant

• [31]It was difficult to understand the rationale behind the Reporter's position. Neither parent had suggested that AF be removed from the school he was attending. The issue discussed before the Panel was what was going to happen after the school term had finished.
• [32]It was not the function of the Panel to make a decision which was not necessary. The decision in this case was not necessary to safeguard AF's welfare. There was no basis for the Panel to be further involved.

  Reply for CF

• [33]It was not correct to say that neither party wanted AF to be moved. CF’s position before the Panel was that she had wanted him to move schools to be close to where she lived before the end of the school term.

   

   

  Grounds of Decision

  Appeals

• [34]Section 51 of the Act provides that if I am satisfied that the decision is not justified in all the circumstances of the case, I must allow the appeal and
  1. where the appeal is against a place of safety warrant, recall the warrant;
  2. where the child is subject to a supervision requirement containing a condition, direct that the condition shall cease to have effect; and
  3. in any case, I may, as I think fit
     1. remit the case with reasons for my decision to the children’s hearing for reconsideration of their decision; or
     2. discharge the child from any further hearing or other proceedings in relation to the grounds for the referral of the case; or
     3. substitute for the disposal by the children’s hearing any requirement which could be imposed by them under section 70 of this Act: Section 51(5).
• [35]Section 51(4) provides that if I decide that the appeal has failed, I must confirm the decision of the Children’s Hearing.
• [36]I took parties to be agreed that the role of the Sheriff in relation to an appeal such as this can be described thus:

   

  “ … the task facing a sheriff to whom an appeal has been taken is not to reconsider the evidence which was before the hearing with a view to making his own decision on the evidence. Instead, the sheriff’s task is to see if there has been some procedural irregularity in the conduct of the case; to see whether the hearing has failed to give proper, or any consideration to a relevant factor in the case; and in general to consider whether the decision reached by the hearing can be characterised as one which could not upon any reasonable view, be regarded as being justified in all the circumstances of the case.”

  (Norrie, ‘Children’s Hearings in Scotland’ 2^nd. ed. p.213; W v Schaffer 2001 SLT (Sh. Ct.) 86, Sheriff Principal Nicholson at 87K – 88A.)

• [37]It has also been said that a sheriff should not allow an appeal unless there was some flaw in the procedure adopted by the hearing or he was satisfied that the hearing had not given proper consideration to some factor in the case: D v Sinclair 1973 SLT (Sh. Ct.) 47
• [38]The evaluation of any decision challenged by of an appeal of this type must also take into account the paramountcy of the “welfare principle”, namely the principle that the welfare of the child throughout his childhood shall be the paramount consideration: Section 16(1).

  The present case

• [39]To some extent, the argument in the present case is akin to a dispute about who has jurisdiction – the Court or the Panel?Although the argument about ‘jurisdiction’ was not developed to any great extent, it appears to me that it is a key point. But the issue is not about whether a decision of the Court should take precedence over a decision of the Panel or vice versa. Instead, the issue is whether the Panel has jurisdiction at all.

  Supervision requirements

• [40]Leaving aside emergency powers, the main power of a Panel is to make supervision requirements: Section 70(1).
• [41]In exercising it jurisdiction to make a supervision requirement, the Panel may impose conditions. It appears that the Panel’s discretion as to what condition(s) to impose (if any) is a wide one: Section 70(5) [“…without prejudice to the generality…”]; and once a condition is imposed, it becomes part of the supervision requirement: Section 70(3)(b).
• [42]Some appeals may be concerned with the appropriateness or otherwise of a condition which has been imposed; others may be concerned with the whether a supervision requirement has properly been made (or, in this case, continued) at all. As already noted, I think that the true issue in this case is the latter.
• [43]The first part of the “jurisdictional” question which arises is this: what is the “class” (i.e. category) of children in respect of whom the Panel may make a supervision requirement? To find the answer, it is necessary to trace back through the legislation.
• [44]The starting point is Section 70(1) which provides that the Panel may make a supervision requirement where it is satisfied that compulsory measures of supervision are necessary in respect of a child whose has been referred to it under Section 65(1) (my emphasis).
• [45]Section 65(1) provides that the Reporter shall refer to the Panel for considerationand determination the case of any child in respect of whom the Reporter is satisfied that(i) compulsory measures of supervision are required and (ii) at least one of the grounds specified in Section 52(2) is established (my emphasis).
• [46]Section 52(2) then sets out a number of familiar grounds referral - which might broadly be categorised as situations where children are perceived to be at risk.
• [47]Thus, the “class” of children in respect of whom a supervision requirement can be made is determinable by reading Sections 52(2); 65(1) and 70(1) together. The significance of Section 52(2) is highlighted by the terms of Section 52(1). In short, a child cannot enter (i.e. become subject to the jurisdiction of) the Children's Hearing system unless he or she is "at risk" in one of the ways identified in Section 52(2). Put another way, the existence of at least one Section 52(2) ground is a precondition of the making of a supervision requirement.
• [48]At the commencement of a child’s entry into the Hearing system, the existence of a Section 52(2) ground is dealt with by the need for grounds of referral to be established.
• [49]The question which arises in this case is: what happens at later stages of the Hearing process? i.e. is it a precondition of a decision to continue the supervision requirement that one or more Section 52 (2) grounds remain(s) in existence?
• [50]In my opinion, that question falls to be answered in the affirmative. I come to this conclusion for several reasons.
• [51]First, the phrase “…the grounds for the referral of the case …” in Section 51(5)(c)(ii)must be a reference to the originally established grounds of referral. That suggests that where these grounds are no longer “live”, supervision is no longer appropriate.
• [52]Second, it would appear unlikely that the necessary preconditions for the continuing of a supervision requirement would be less stringent than the preconditions necessary for the making of a supervision requirement in the first place. After all, on one view, in continuing a supervision requirement the Panel is still making a supervision requirement.
• [53]Third, interference by the State in the lives of citizens is a significant intrusion and must be (i) justified on substantial grounds and (ii) proportionate. Thus, I do not think that it can be correct that the satisfaction of the preconditions for interference (namely the establishment of Section 52(2) grounds) at one point in time can thereafter justify ongoing interference once the grounds justifying the initial interference no longer exist. This principle is articulated in Section 73(1).
• [54]Fourth, the overall stricture and procedure of the process is designed to achieve regular (critical) reviews of the need for supervision.
• [55]I do not suggest that the instant the Section 52 grounds no longer exist, the Panel’s powers fall away. But my view is that before a supervision requirement can be continued, the established Section 52(2) grounds must remain “live” - at least to a material enough extent as to justify compulsory measures of care. No doubt it will be a question of fact in each case whether that is so.
• [56]Accordingly, it appears to me that question in this case is whether, at the point when the Panel took the decision appealed against there existed established Section 52(2) grounds which were still live.
• [57]Unfortunately, this issue was not dealt with in any detail by any of the parties. Instead, much of the discussion focussed on the appropriateness or otherwise of the conditions, rather than the justification for continuing the supervision requirement. Mr Kee did say that there were ongoing issues with regard to CF’s health which was being monitored. But it seems to me to necessary to examine in some detail the reasons given by the Panel for the decision appealed against and in particular, to see what way the Panel’s decision and reasons can be said to be linked to an address the Section 52(2) grounds established in 2010.

  The procedural background and the 2010 grounds

• [58]AF's case originally came before the Panel on 1 July 2010. At that stage the grounds of referral were not accepted. A Place of Safety Warrant was issued. AF was to be in the care of the appellant. It was noted that AF could not return to CF’s care "at the moment" and that although she had made some improvements to her home it was "... early days and too soon to allow AF to return to (her) care". At that stage, CF was having contact once per week at the Panel's view was that it should be increased, subject to Social Work Services discretion (Production 31).
• [59]On 22nd July, 2010, the Panel renewed the Warrant and decided that AF should continue to reside with the appellant as he could not return home to CF at that stage "... although (she) is making steady progress". Contact was to be increased if appropriate (Production 29).
• [60]Section 52 (2)(c) grounds (risk of unnecessary suffering or serious impairment to health and development, due to lack of parental care) were established in July 2010. The facts underpinning that established ground were (i) AF witnessing (a) an assault on CF and (b) an altercation between CF's partner and brother; (ii) CF’s mental health issues impacting on ability to care for AF (iii) AF's living environment at home; (iv) abusive conduct by CF towards her parents; (v) CF overdosing in June 2010 being admitted to hospital; and (v) the appellant having to become involved in AF's full time care (Production 27).
• [61]The Panel met again on 11 August 2010. At that stage, a full discussion did not take place as AF and the appellant were away on a pre-planned holding. The Warrant was renewed. It was noted that "Although (CF) has made some positive changes, it is still too soon to be certain that it would be safe to return AF to her full time care.”. (Production 25).
• [62]On 25 August 2010, the Panel made a supervision requirement to the effect that AF was to be under the supervision of the Chief Social Work Officer of Falkirk Council and to reside with the appellant with a condition that contact with CF was to be managed by Social Work Services. An early review was fixed. (Production 23).
• [63]On 25 November 2010, the previously made supervision requirement was continued with the same conditions. I infer that by that stage, CF was having relatively extensive contact with AF (Production 20c).
• [64]On 24 February 2011, the supervision requirement previously made was continued again. Unfortunately, at that stage, CF suffered a setback in terms of mental health (Production 18).
• [65]On 5 May 2011, the Panel again continued the supervision requirement. The one change was that the condition about CF's contact (namely that it was to be managed by Social Work Services) was deleted and AF was to have three “overnights” each week with her. In the Panel's reasons it was noted that AF could not return to the full-time care of CF at the time and that he was getting stability, consistency and a safe and secure environment with the appellant. It was noted that CF's condition had stabilised and that she was keen to build on contact as quickly as possible with a view to resuming full-time care. CF had been having overnight contact which was increasing. Contact was reported to have "gone well" (Production 16b).
• [66]On 30 June 2011, the Panel continued the supervision requirement but restored the condition about contact which had been in place until 5 May 2011. This was not because of any concerns about CF's contact. The majority decision was to continue the condition that AF resided with the appellant as it was "... considered too early to return AF to (CF's) full-time care as her mental health issues have only recently been diagnosed and treated”It was noted that the appellant was by that stage pursuing parental rights and responsibilities and joint custody. The minority view was that CF was in a position to resume full time care of AF (Production 14).
• [67]On 22 September 2011, the Panel decided to appoint a Safeguarder because of the conflict between the appellant and CF. I infer that the conflict was related to residence and contact. CF's ability to care for AF is not recorded as having been considered (Production 11c). The case was continued for further investigations.
• [68]Mr. Kee then embarked on investigations and provided a comprehensive report (Production 9). However, I note that the dominant theme related to the question of AF’s welfare is the conflict between the parties – see, for example, paragraphs 2 and 9.
• [69]Mr Kee noted that if the issue about the risk to AF arising from CF’s health were to be resolved in such a way as to allow AF to return to her full time care, the "... real issue for AF is whether or not it is now better for him to be in (the Appellant's) full time care or (CF's) full time care as the parental conflict is it possibly more reasonable outcome of a shared care arrangement." (Paragraph 27).
• [70]In relation to CF's health, Mr. Kee noted "In the event the decision were that AF should be returned to (CF's) care I do not consider it appropriate that Social Work involvement should cease as I believe continual monitoring will remain most important for AF..." (paragraph 43).
• [71]Appended to Mr. Kee's report is a report from CF’s consultant psychiatrist. This confirms the diagnosis of CF's condition; that she was on medication "... which has been helpful and with which she complies well"; that she still had some degree of instability but this is “much less”. The prognosis was that "... she will continue to have some degree of mood instability but hopefully this will not be of a nature or degree which would significantly interfere with her ability to function at a reasonable level.” In relation to CF’s child-caring abilities, the report said "although I am limited in my ability to comment on her child-caring abilities (having never witnessed this first-hand) I do think it unlikely that her illness would currently significantly adversely affect this."
• [72]I observe that by this time, CF had been having full time care of AF for about half of each week, unsupervised (see paragraph [65] above); and had been abroad with him on holiday.
• [73]AF's case came back before the Panel on 15 November 2011. At that stage, the supervision requirement was varied by deleting the conditions about (i) contact with CF and (ii) residence with the appellant and inserting the conditions that AF was to have overnight contact with the appellant and to remain at XXXX School until the end of June. It is clear from the Panel's reasons that there was ongoing conflict between the appellant and CF.
• [74]In my view, it is clear that the Panel recognised and accepted that there were no significant risks in allowing AF to reside for material periods where the CF. Put shortly, it appears to me that by that stage the Panel’s decision to make a supervision requirement with conditions in the terms that it did was it perception that the "problem" was the conflict and dispute between the appellant and CF. I do not detect anything in the requirement or conditions which can be said to be related to "live" Section 52 (2)(c) grounds (Production 8c).
• [75]Between the hearing on 15 November 2011 and the review fixed for 7 February2012, the Social Work report on AF's circumstances was updated. It is clear from the report that Social Work Services have been pursuing a plan to rehabilitate AF to CF's full-time care (Production 5c).
• [76]In addition, I note that the recommended variation to the residence/contact arrangements bears to proceed on the strength of AF’s own views. I have doubts about the validity of that approach, given his young age.
• [77]AF is described as being “safe” in the care of CF (Production 5L). That appears to me to raise a real and substantial question about the ongoing need for compulsory supervision, given that the originally established grounds were related to his welfare while in her care.
• [78]Both parents are recorded as expressing the view that supervision was no longer required. (This also seems to be AF’s view: Production 4b). Most tellingly, it appears that the termination of supervision would have been the author’s recommendation but for the court proceedings (Production 5m, paragraph 7).
• [79]On 7 February 2012 the Panel continued the case for the appointment of a Safeguarder. The reasons for doing so bear to relate squarely (and exclusively) to the ongoing conflict between the parties (including the Court action): Production 3c. There is no mention of any welfare issues in relation to AF deriving from any historical or current Section 52(2) grounds.

  Discussion

• [80]In my opinion, the Panel have lost sight of their primary function, which is to decide on the need for and form of supervision requirements in relation to children in respect of whom there are live Section 52(2) grounds. Put bluntly, once the Section 52 grounds have disappeared or been resolved, the state’s right or obligation to act through the Panel disappears.
• [81]As already noted, the originally established Section 52(2)(c) grounds and the risks to AF’s welfare deriving therefrom do not appear to have featured in the Panel’s thinking (as vouched by their reasons) for many months. There is strong evidence that these have been resolved.
• [82]I have no hesitation in accepting that the Panel, Mr Kee and Social Work have acted in good faith and in a way which they see as being in AF’s welfare interests. In particular, Mr Kee’s report contains much wise comment about AF’s needs and the desirability of his parents putting these to the fore.
• [83]Nevertheless, I have concluded that the Panel has lost sight of its true role, has allowed itself to succumb to “mission creep” (albeit with the best of intentions); and has ended up trying to deal with an issue which is not properly before them.
• [84]I do not say that the ongoing dispute between the appellant and CF does not have the potential to have a negative impact on AF. But that is not enough to warrant ongoing interference by the Panel where the original Section 52(2) grounds appear to have been resolved. (I also harbour strong doubts as to whether the current dispute between the appellant and CF could ever be said to give rise or amount to risk of unnecessary suffering or serious impairment to health and development, due to lack of parental care: Section 52 (2)(c). In any event, if it is thought that the current situation means that AF is at risk, the proper course is for the Reporter to formulate new grounds of referral.)
• [85]I consider that Mr Travers’ first point is well founded. The evidence available to the Panel appears to demonstrate that the original grounds are no longer a concern. Supervision of CF’s contact ended more than a year ago. Both parties exercise extensive contact. There is no note of any ongoing concerns (in the mind of the Panel) related to the original grounds of referral. That being so, the Panel should have critically reviewed the need for a continued supervision requirement. Had it done so, I am satisfied that it would have terminated the supervision requirement and discharged the referral. For example, let us assume (for the sake of argument) that the appellant had not been available to provide care while CF overcame her difficulties and AF had been fostered. What decision would the Panel have made now? In my view, it is clear that AF would have been returned to CF’s care. The only reason he has not been is because of the conflict about residence/contact. But that is not a matter falling within the jurisdiction of the Panel, absent any live grounds of referral.
• [86]I also think that there is force in Mr Travers’ point about the lack of a proper plan. At the moment this appears to be reduced to asking the appellant to negotiate or mediate in the hope that they can resolve their differences. That is not the Panel’s function. In any event, even if the Social Work recommendation to rehabilitate AF to CF’s full time care is followed through and enforced by continued supervision requirements and conditions, that will not resolve the underlying dispute or prevent the appellant from proceeding with his court action once the supervision requirement is eventually discharged by the Panel. That simply highlights the limits of the Panel’s jurisdiction.
• [87]That being sufficient for me to dispose of the appeal, there is no need for me to consider the conditions themselves, but I do have some other comments.
• [88]It is not illegitimate for a Panel to consider issues which are ancillary to matters arising from the established grounds, but they should only do so where the need for compulsory supervision arises from the established grounds.
• [89]I do not agree with Mr Kee’s submission that the Court is less well able to deal this case than the Panel. In my view, the opposite is the case for the following reasons.
• [90]First, Social Work have plainly stated their aim of rehabilitating AF to the full time care of CF. The views of Social Work are likely to hold significant sway with the Panel – but Social Work’s view about where AF should reside appears to be based on his preference as expressed to them. That the child’s view be elevated to a decisive factor is not consistent with welfare principle in family proceedings to the effect that the whole circumstance should be considered.
• [91]Second, I agree with Mr Travers that there is a concern that the Panel seem to have adopted and endorsed Social Work’s view on rehabilitation to CF’s care and that this approach is prejudicial to the appellant. The issue of residence and contact should be evaluated now according to AF’s best interests, taking account of all relevant circumstances, not in pursuit of a decision taken by Social Work many months ago. In addition, there is an issue of natural justice. Put shortly, if the Panel are pursuing rehabilitation to the full time care of CF, they have tied their hands in relation to the decision that is required of them.

  Disposal

• [92]In the circumstances, I am satisfied that the decision of the Panel to continue the supervision requirement was not justified in all the circumstances of the case; accordingly, I direct that the conditions thereof cease to have effect and discharge AF from any further hearing or proceedings in relation to the grounds for the referral of the case.