Scottish Sheriff Court Decisions

B43/14

SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON

JUDGMENT

OF

SHERIFF PETER BRAID

Appeal under Section 160 of the Children's Hearings (Scotland) Act 2011

By

DH

APPELLANT

Against

SCOTTISH CHILDREN'S REPORTER

RESPONDENT

[1] This is an appeal under section 160 of the Children's Hearing (Scotland) Act 2011 ("the 2011 Act"). The appeal is brought by DH, who is the mother of the child EH, born June 2013, against a decision of a pre-hearing panel dated 13 February 2014, to deem the child's father, DS, to be a relevant person in terms of section 81(3) of the 2011 Act.

[2] Insofar as material, the relevant provisions of the 2011 Act are as follows:-

Section 81(3) provides:

"The pre-hearing panel must deem the 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."

Section 160 provides:

...

"(3) If satisfied that the determination to which the appeal relates is justified, the sheriff must confirm the determination.

(4) If not satisfied, the sheriff must-

(a) quash the determination....

[3] The decision of the pre-hearing panel is as follows:

"The majority decision of the hearing was to deem DS a relevant person because he is acknowledged by himself and DH as EH's birth father and he has recently had significant involvement in EH's upbringing. DH told the hearing that while she and DS were together he was a hands on father and that this involvement ended around September. The minority decision was that this involvement was not recent enough as it was over half EH's life ago."

[4] At the appeal, DH was represented by Mrs Corsar, solicitor; the Reporter by Mrs Rankine; and DS represented himself.

[5] All parties accepted that the issue which the pre-hearing panel had to resolve was a question of fact and that there was no element of discretion. If they reached the view that there was a recent significant involvement they were obliged to deem DS to be a relevant person; if they did not reach that view, they must not do so. Mrs Corsar's submission was, first, that DS's involvement had not been significant, since it amounted to no more than changing nappies and bathing on occasion. The parties had not been living together and indeed DS had been bailed to stay away from DH even before the child's birth. Mere contact was not sufficient to comprise a significant involvement in the child's upbringing. Further, there had been no involvement at all since September 2013, and an incident when DS had allegedly threatened to slit the throats of the child and DH. The Appellant had subsequently agreed to the child's being voluntarily accommodated, failing which a child protection order would have been sought. There had accordingly been no recent involvement, some five months having elapsed which was itself a significant period in the context of an eight-month old child, being more than half of the child's life. Accordingly, the panel's decision was not justified as it was simply wrong. Mrs Corsar also referred me to Professor Norrie's Children's Hearings in Scotland (3^rd Edition), paras 5-12 to 5-15.

[6] Mrs Rankine submitted that the panel had correctly decided the factual question before them. The panel had been told by both parents that DS had visited the house regularly, and was involved in such activities as changing nappies and feeding. In the context of a very young baby, that was a significant involvement in her upbringing, since in effect those (together with bathing) comprised her basic needs. DS would have remained in the child's life had he been permitted to do so but had been prevented from any involvement by state intervention. Mrs Rankine also referred to Professor Norrie's work, in particular to para 5-13 where it is stated that "recently" should not be too strictly interpreted, the aim being to ensure that those who have had an involvement in the child's upbringing are not excluded from having a say in decisions about the child due to recent events; and that a person who has lost his involvement through state intervention should still be able to claim relevant person status and so protect their right to challenge state action until such time as their involvement was merely historical and of no contemporary significance. Ms Rankine submitted that there had been recent involvement and that the panel's decision was justified.

[7] DS understandably did not make any submissions as to the law. He gave me an account of his involvement (some of which detail was not before the panel). In summary, he submitted that he had been involved with changing nappies, feeding and bathing and had contributed money to buy essentials for EH. He agreed with the description of his role as being a "hands-on father". He denies the allegations against him.

[8] I accept Mrs Rankine's submission that what is a significant involvement must depend to some extent at least on the age of the child. Indeed I would go further, and say that the age of the child when the involvement began is also a relevant consideration. The father who is involved from birth may have a more significant involvement than one who turns up after say a year and is involved for only a few months. Here, we are dealing with a very young baby and while I also accept that "significant involvement" entails more than mere contact, I consider that changing nappies, feeding and bathing on a regular basis, from more or less immediately after the child's birth (from two weeks old) does amount to a significant involvement in that child's upbringing. It is unclear from the material before me precisely what information the panel had, but in a sense the description by the child's mother of DS as a hands-on father is a brief but eloquent acceptance that he did have significant involvement. Put another way, from very soon after the child's birth until he was prevented from seeing her by state intervention due to as (as yet untested) allegations, DS played a significant role in attending to the child's fundamental need. In my view the panel correctly reached the view that he had a significant role in the child's upbringing.

[9] As to whether that involvement was recent, I accept that "recently" will vary according to circumstances. I am not persuaded necessarily that the concept of "recently" must be divorced from, and considered separately from that of "significant involvement", or whether the correct approach is simply to consider the single question of whether there has been "recent significant involvement". This may simply be another way of expressing Professor Norrie's view that the timescale of recent involvement can vary from case to case and with the age of the child. In any event, however the matter is approached, and having regard to Professor Norrie's other comments, referred to by Mrs Rankine, I consider that in the present case the significant involvement of DS was correctly regarded by the majority of the panel as having been recent, when that involvement stopped only due to state intervention. The matter can be tested by asking whether the minority approach was correct and in my view, clearly it was not, since it is over-simplistic to approach the matter by comparing the period of non-involvement with the age of the child and concluding that it was not recent because it amounted to more than half of the child's life. On that approach, the father who had been involved for the first two weeks of a child's life, whose involvement ceased due to state intervention, would lost his status as a relevant person after, say, a month; and that cannot be correct. It seems to me, looking at the matter in the round, that the whole circumstances of DS' involvement in the child's upbringing from more or less the time of her birth until he was forcibly removed from her life are such that his involvement was in the context of the ongoing proceedings, recent.

[10] For completeness, the gravity of the allegations against DS (which he denies) are in my view of no relevance in determining the factual question of whether or not he satisfies the test in section 81(3), except insofar as they provide an explanation as to why his involvement with the child ceased in September 2013.

[11] For all these reasons, I am satisfied that the panel decision was justified, and I confirm their determination. The appeal is refused.