Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

SWA596/14

NOTE

of

SHERIFF S. REID, Esquire,

Sheriff of Glasgow and Strathkelvin

in the Appeals of

MF and GF

APPELLANTS

against

a determination of the Children's Hearing at Glasgow on 17 February 2014

in relation to

the children A & B

under Section 160(1) of the Children's Hearings (Scotland) Act 2011

For the reporter: Ms Currie, Scottish Children's Reporter Administration, Glasgow

For the appellants: Mr Stevens, Stevens & Co, Glasgow

For the mother: Ms McLaughlin, Latta & Co, Glasgow

(Mother and foster carer present)

Summary

[1] The appellants are the maternal grandparents of two children, A and B.

[2] The children are subject to compulsory supervision, originally in terms of a supervision requirement made on 9 October 2012 under section 70 of the Children (Scotland) Act 1995 ("the 1995 Act"), and thereafter in terms of a compulsory supervision continued ad interim order under sections 138 & 139 of the Children's Hearings (Scotland) Act 2011 ("the 2011 Act").

[3] On 12 August 2013, in advance of a review of the compulsory supervision order, a pre-hearing panel deemed the appellants to be "relevant persons" in relation to the children, in terms of section 81 of the 2011 Act.

[4] On 17 February 2014, following upon the review of the compulsory supervision order, a children's hearing determined that the appellants do not have (and have not recently had) a significant involvement in the upbringing of the children, and directed that the appellants were no longer to be deemed to be relevant persons, in terms of section 142 of the 2011 Act.

[5] The appellants appealed against that decision of the children's hearing, in terms of section 160 of the 2011 Act.

[6] On 25 February 2014, the appeal called before me. Having heard submissions, I upheld the appeal. I have issued this Note in order to explain my reasoning more fully for the assistance of the parties and subsequent hearings in relation to the children.

Procedural history

[7] Grounds of referral were originally established in relation to the children on 22 August 2007 at Dumbarton Sheriff Court. A supervision requirement was subsequently made. The requirement was terminated a year later.

[8] On 9 July 2012, a child protection order was made in respect of the children. They were removed to a place of safety. The order made no provision for contact between the children and the appellants.

[9] The children have remained in the care of foster carers since 9 July 2012 under successive warrants and orders. By all accounts, the children are thriving there.

[10] On 24 August 2012, fresh grounds of referral in respect of the children were established at Glasgow Sheriff Court.

[11] Between 30 August 2010 and 9 October 2012, in terms of conditions attached to successive place of safety warrants, the children were to have supervised contact with the appellants, initially "a minimum of once per week", and latterly "once a week".

[12] On 9 October 2012, a children's hearing made a supervision requirement in respect of the children. The requirement made no express condition regarding contact between the children and the appellants. In its written reasons the hearing records its decision to "leave it to the discretion of social work" to allow contact between the children and the appellants.

[13] That position remained unaltered until 17 February 2014.

[14] The appellants have had no contact with the children since October 2012 (with the exception of a couple of chance meetings at children's hearings).

[15] The supervision requirement dated 9 October 2012 came to be reviewed a year later.

[16] In advance of that review, on 12 August 2013 a pre-hearing panel determined that the appellants were deemed to be relevant persons, in terms of section 81 of the 2011 Act.

[17] On three occasions thereafter (on 2 September 2013, 3 December 2013 and 22 January 2014) children's hearings were convened for the purpose of reviewing the supervision requirement. On each occasion, the hearing was unable to reach a substantive decision because the social work department had failed to provide an up-to-date report to the hearing. Accordingly, on each occasion the hearing continued the compulsory supervision order ad interim in respect of both children, in terms of section 139 of the 2011 Act.

[18] Both appellants attended the abortive review hearings on 2 September 2013 and 22 January 2014. Only the first-named appellant attended the review hearing on 3 December 2013.

[19] On 17 February 2014, a children's hearing was again convened to review the compulsory supervision requirement. The second-named appellant was unable to attend, but communicated to the hearing through his wife (the first-named appellant) that he was content for the hearing to proceed in his absence. His attendance was excused.

[20] An up-to-date report was made available to the hearing by the social work department. Having considered matters, the hearing made a substantive determination to continue the compulsory supervision order in respect of both children. The order expressly provided that the children were to have no contact with the appellants.

[21] Having determined the review by continuing and varying the compulsory supervision order, the children's hearing then proceeded to review the "relevant person" status of the appellants, in terms of section 142 of the 2011 Act. The hearing concluded that the appellants do not have (and have not recently had) a significant involvement in the upbringing of the children. Accordingly, the hearing directed that the appellants are no longer to be deemed to be "relevant persons".

[22] The appellants appealed to the sheriff against that decision.

Submissions for the appellants

[23] For the appellants, three grounds of appeal were advanced against the decision. Firstly, it was submitted that the appellants were given no proper notice that the purpose (or, at least, one of the main purposes) of the hearing was to review their status as relevant persons. Neither appellant had been made aware, in advance, that the issue of "relevant person" status would be raised and neither had obtained advice on the matter. The second-named appellant was neither present nor represented at the hearing. Accordingly, it was submitted that the appellants had not received a fair hearing. Reference was made to Article 6 of the European Convention on Human Rights ("ECHR").

[24] Secondly, it was submitted that the decision of the children's hearing had breached the appellants' Convention right to respect for private and family life in terms of Article 8, ECHR. The appellants' solicitor provided a detailed narration of the involvement of the appellants in the upbringing of the children prior to July 2012, when the children were taken into care. It was acknowledged that there had been no contact between the children and the appellants since October 2012 (under exception of a couple of chance meetings at children's hearings). However, it was submitted that the appellants had since requested more contact with the children; that those requests had been denied by the social work department; that the appellants had sent Christmas and birthday presents to the children; and that the appellants had requested that an assessment be carried out of their suitability to act as kinship carers of the children, which request had not been progressed. Reference was made to the decisions in AG v Principal Reporter 2013 SLT (Sh Ct) 125 and W v Children's Reporter 2013 SLT (Sh. Ct.) 99.

[25] The appellants' solicitor also noted that the children's head teacher had contradicted certain information provided by the first-named appellant at the hearing, and that the hearing had plainly accepted the head teacher's version of events. It had only subsequently transpired that, in fact, the head teacher and the first-named appellant had been speaking at cross-purposes. They had been referring to two different periods.

[26] Thirdly, the appellants' solicitor submitted that the decision of the children's hearing was not justified because the views of the children on the appellants' relevant person status had not been sought, in breach of section 27 of the 2011 Act.

[27] The appellants' solicitor submitted that the hearing should have exercised its discretionary power, under section 142(3) of the 2011 Act, to "defer" determining the review of the appellants' relevant person status to a subsequent hearing. In this way, the appellants would have been given proper notice of the issue raised (and obtained advice upon it) and the views of the children could have been obtained.

[28] Lastly, the appellants' solicitor submitted that the lapse of time between August 2013 (when the appellants had been deemed to be relevant persons) and the children's hearing on 17 February 2014 was not, of itself, sufficient for their status to have changed, in circumstances where the lack of contact had been attributable to the intervention of the State in taking the children into care.

Submissions for the mother

[29] The children's mother supported the appellants' appeal. The mother's solicitor adopted the detailed narration of the appellants' involvement, prior to July 2012, in the upbringing of the children. In addition, it was submitted that the appellants had provided support and guidance to the mother in the upbringing of the children. Reference was made to the decision in AMN (Kirkcaldy Sheriff Court, Sheriff A G McCulloch, unreported).

[30] Moreover, a pre-hearing panel convened on 12 August 2013 had already determined that the appellants were relevant persons. It was submitted that, since that date, the appellants' situation had not changed. They had continued to attend children's hearings and continued to request contact. All that had occurred was the passage of time. However, the passage of time was attributable, in large part, to the failure of the social work department to provide a current report to successive hearings. She submitted that the criteria for assessment of relevant person status should not be strictly interpreted. Reference was made to the textbook Children's Hearings in Scotland (3rd ed) by Professor K. Norrie, page 86.

Submissions for the reporter

[31] Firstly, the reporter submitted that the children's hearing, having determined the review of the compulsory supervision order on 17 February 2014, was then obliged to review the appellants' status as relevant persons, if it appeared to the hearing that they may no longer have (or have recently had) a significant involvement in the upbringing of the children (section 142(1) & (2), 2011 Act). The issue was not raised by the reporter. Instead, it was raised by the hearing members themselves, as they were obliged to do. Therefore, she submitted, no issue arose of prior notice being required of the potential review of relevant person status. Relevant persons ought to be aware of the potential for such a review taking place.

[32] Secondly, I was invited to conclude that the decision of the hearing was justified. It was submitted that the hearing had properly determined, on the information available, that the appellants did not have a significant involvement in the upbringing of the children; and, even if the appellants had previously had such an involvement, that it was not "recent". Reference was made to Children's Hearings in Scotland (3rd ed.), Norrie, paragraphs 5-13 & 13-38.

[33] The appellants' detailed narration of their alleged involvement in the upbringing of the children had not been provided at the hearing. However, the reporter submitted that the hearing was entitled to proceed on the basis of the information then before it. A dispute had arisen at the hearing as to the extent of the appellants' involvement with the children prior to them being accommodated in July 2012. The reporter submitted that the hearing members had plainly preferred the evidence from the head teacher, and were entitled to conclude that the appellants had "not had a significant involvement in the upbringing of the children prior to them being received into care" (per the written reasons, Decision 8). I was invited to distinguish the decision in W, supra, on the basis that the facts were different, it proceeded under the 1995 Act, and it involved a different test for "relevant person".

[34] The reporter submitted that the hearing was entitled to conclude that any involvement the appellants had previously had in the upbringing of the children was not recent. The children had had very limited contact with the grandparents between July and October 2012; thereafter, the appellants had had no contact whatsoever (under exception of a couple of chance meetings); and "time had now passed" to the extent that any involvement of the appellants in the upbringing of the children was now historic.

[35] The reporter did not accept the proposition that the only (or principal) reason for the lack of contact between the children and the appellants since October 2012 was the intervention of the State. Instead, she attributed the lack of contact to the failure of the grandmother (the first-named appellant) to engage with the social work department. Reference was made to the social work integrated assessment report (reporter's inventory, item 17, pages 23 & 26/27) which recorded two occasions when the first-named appellant had walked out of meetings involving the children (namely, at a child protection case conference in December 2011 and at a children's hearing in October 2012); and to the safeguarder's report (reporter's inventory, item 9, page 5) which recorded that the first-named appellant had been "critical of social workers and felt they had not helped her daughter or the children". Further, the reporter noted that the first-named appellant had reiterated at the hearing on 17 February 2014 that she would not work with the children's current allocated social worker.

[36] Lastly, the reporter submitted that the hearing had obtained, and properly taken into account, the views of the children by considering the standard forms that had been completed by both children. The forms did not disclose any view on the subject from either child. That said, the reporter acknowledged that neither form specifically addressed the issue of relevant person status, and that neither child was specifically asked whether she had any views on the appellants ceasing to be relevant persons. (Copies of the forms are not included in the reporter's inventory, though I was told that copies were made available to the hearing.)

Submissions by the foster carer

[37] I was addressed by one of the foster carers. She indicated her support for the decision of the hearing. She agreed that the appellants had had no significant role in the lives of the children since they had been accommodated. Since October 2012, the appellants had been in contact with the children on only two occasions, both being chance meetings that had resulted in distress to the children and problematic behaviour thereafter. The foster carer described the neglected state of the children when they were first accommodated with her (including a head lice infestation), of the significant efforts that had been made by the foster carers to achieve progress with the children, and of the current transformed condition of the children.

Discussion

[38] A "relevant person" has a right and an obligation to attend a children's hearing (sections 78 & 74, 2011 Act).

[39] The underlying logic of the correlative right and duty is to establish the dual mechanism, firstly, whereby the participation is ensured of those persons (other than the child) who are directly affected by the determinations of the hearing and, secondly, whereby the fullest and most complete information affecting the welfare of the child is made available to the hearing. Since participation in a decision-making process is a crucial element in the protection of a person's right to a fair hearing under Article 6, ECHR, and of the right (of a family member and the child) to respect for private and family life under Article 8, ECHR, the conferring and removal of "relevant person" status is a matter of significance.

[40] A "relevant person" is any person falling within the definition in section 200 of the 2011 Act. However, an individual who does not fall within that definition may, nevertheless, be deemed to be a relevant person in relation to a child by virtue of sections 79 to 81 of the 2011 Act. Deemed relevant person status must be determined by a pre-panel hearing. The panel must decide whether:-

"...the individual has (or has recently had) a significant involvement in the upbringing of the child" (section 81(3), 2011 Act).

In addressing this question, the panel is not concerned with whether or not it is in the best interests of the child to deem the individual to be a relevant person. The test is purely factual rather than judgmental. Deemed relevant person status does not arise from the exercise of a discretionary power but as "an inevitable consequence of the panel having found the factual test to be satisfied" (Norrie, supra, paragraph 5-12). It may be assumed that the Scottish Parliament has determined that, if the factual test is satisfied, the child's best interests are served by the participation of that person in the children's hearing process.

[41] However, the status of an individual as a deemed relevant person is susceptible to review by virtue of section 142 of the 2011 Act.

[42] Three discrete stages are discernible from the legislation. First, under section 81, the pre-hearing panel determines that an individual has (or has recently had) the necessary significant involvement. Logically, the pre-hearing panel must determine that factual issue as at the date of the pre-hearing panel meeting, and by reference to the facts and circumstances existing at, and prior to, that meeting.

[43] Second, under section 142(1)(c), having completed the review of a compulsory supervision order, if it "appears" to the hearing that the individual "may no longer have (nor recently have had)" the necessary significant involvement, then the hearing is obliged to proceed to review that person's status.

[44] Third, under section 142(4), if, having undertaken that relevant person review, the hearing determines that the individual "does not have (and has not recently had)" the necessary significant involvement in the upbringing of the child, it must terminate the deemed status.

[45] At these second and third stages under section 142 of the 2011 Act, the decisions of the hearing should be based upon an assessment of the facts and circumstances existing between the date of that hearing and the date of the preceding section 81 pre-hearing panel (at which relevant person status was determined) (or, as appropriate, the immediately preceding section 142 hearing at which the relevant person status was reviewed and confirmed). In other words, when undertaking a review (by virtue of section 142) the hearing must proceed from the stand-point that, as at the date of the preceding section 81 pre-hearing panel meeting (or section 142 review, as appropriate), the individual did indeed then have (or then recently had) the necessary significant involvement in the upbringing of the child. The hearing cannot contradict the previous factual determination on that issue. It has no power to do so. Its remit is to assess the facts and circumstances existing since that preceding factual determination and to decide whether, as at the date of the review hearing, the person no longer has (and has not recently had) a significant involvement in the upbringing of the child.

[46] No doubt, regard may be had to the facts and circumstances prevailing at and prior to the preceding determination in order to better understand the particular nature of the person's involvement with the child, but the preceding determination on that involvement cannot be contradicted. The primary focus of attention should be on facts and circumstances prevailing since the preceding determination.

[47] Against that legal background, in my judgment the decision of the children's hearing on 17 February 2014 is not justified for three reasons.

Failure to apply correct statutory test

[48] Firstly, the hearing fell into error by applying the wrong statutory test when reviewing the appellants' status as relevant persons.

[49] To explain, a pre-hearing panel had already determined that, as at 12 August 2013, the appellants had (or had recently had) a significant involvement in upbringing of the children. When undertaking its review of that status, by virtue of section 142 of the 2011 Act, the children's hearing should have proceeded from the stand-point that, as at 12 August 2013 (the date of the preceding section 81 pre-hearing panel meeting) the appellants did indeed then have (or had then recently had) a significant involvement in the upbringing of the children. Instead, on 17 February 2014, the children's hearing revisited facts and circumstances pre-dating the panel meeting and purported to contradict the panel's factual determination on those facts and circumstances. It had no power to do so.

[50] The error is disclosed in the written reasons issued by the hearing. The reasons record that the first-named appellant advised the hearing of her involvement in the upbringing of the children "prior to them being taken into care" (i.e. prior to July 2012). The children's head teacher flatly contradicted the information provided by the first-named appellant. The hearing then:

"...concluded from this that there was no evidence that the grandparents had a significant involvement in the upbringing of the children prior to them being received into care" (my emphasis).

[51] In so concluding, the hearing encroached upon the remit of the pre-hearing panel of 12 August 2013. The panel had already concluded that the appellants had (or had recently had) a significant involvement in the upbringing of the children prior to them being received into care and, indeed, as late as at 12 August 2013. The children's hearing of 17 February 2014 purported to contradict that factual determination. By so acting, the hearing failed to apply the correct statutory test.

Failure to take proper account of relevant considerations

[52] Secondly, the hearing on 17 February 2014 fell into error because it failed to take proper account of two relevant considerations when determining whether the appellants had "recently" had a significant involvement in the upbringing of the children.

[53] Those two relevant considerations were (a) the effect of the subsisting compulsory supervision order upon the appellants' involvement in the upbringing of the children, and (b) the failure of the social work department of Glasgow City Council to provide up-to-date reports at three consecutive children's hearings (on 2 September 2013, 3 December 2013 and 22 January 2014) and the effect of that failure upon the appellants' involvement with the children.

[54] By way of explanation, it is correct that, with the passage of time, an individual may lose relevant person status if his involvement (or recent involvement) with the child has diminished and is no longer significant.

[55] However, in my judgment a children's hearing should be slow to reach such a conclusion in circumstances where the direct, proximate and dominant cause of the diminishing recent involvement with the child is the ongoing intervention of the State itself. There would be an inherent unfairness in the State both restricting a relevant person's involvement with a child and then founding upon that enforced restricted involvement to deny the person further participation in the decision-making process concerning the child.

[56] The position may different if a relevant person, having been granted contact with a child by virtue of a condition attached to a statutory order, persistently fails to avail himself of that entitlement; or if the relevant person persistently fails, without reasonable excuse, to attend children's hearings in respect of the child; or, otherwise, if the person fails to avail himself of such specific entitlements or liberties as may remain open to him (notwithstanding the State intervention) to be involved in the upbringing of the child. In that event, the diminishing involvement in the upbringing of the child may be said to be directly attributable to the failure of the relevant person to avail himself of those remaining entitlements or liberties.

[57] In the present case, since July 2012 the appellants' involvement in the upbringing of the children has been substantially restricted by virtue of a succession of statutory orders. Specifically, between 12 August 2013 and 17 February 2014 the appellants' involvement was restricted by virtue of a compulsory supervision order continued ad interim by successive children's hearings. That order made no express provision for contact between the children and the appellants. As a result, the appellants had no entitlement to exercise contact with the children. The local authority, which is responsible for managing the order, and to which, in practical terms, the children's hearing had abdicated responsibility to regulate contact, has not allowed the children to have contact with the appellants (or, at best, has refused to allow such contact pending the purification by the appellants of conditions of its choosing).

[58] There may well be very good reasons for that restriction. But the fact remains that, on an objective analysis, the direct, proximate and dominant reason (as opposed to the underlying justification) for the appellants' curtailed involvement in the upbringing of the children in the preceding six month period is the intervention of a public authority, in the form of the compulsory supervision order continued ad interim by successive children's hearings. In addition, the appellants' lack of involvement over that six month period was prolonged by the repeated failure of another public authority (the local authority social work department) to provide up-to-date reports at each of the three intervening children's hearings. In my judgment, the hearing failed to take proper account of, and attach due weight to, these two material considerations.

[59] In its written reasons, the hearing does acknowledge that the appellants' involvement with the children had been curtailed by virtue of statutory orders since the children were first accommodated. However, in reaching its decision, the hearing attached greater weight to the perceived failure of the appellants to "engage" with the social work department. The reasons state:-

"If the grandparents had engaged with social work then they may have achieved an increased level of contact with the children, but have chosen not to engage. Although the panel recognised that the children's relationship with their grandparents has been limited through the children being taken into care, we were of the opinion that gran's reluctance to engage with social work from the outset was a more significant contributor to their lack of involvement in the children's upbringing".

[60] In my judgment, this approach is not justified for a number of reasons. In the first place, there is no adequate evidential basis for the conclusion that the second-named appellant (the children's grandfather) has failed to "engage" at all (whatever that may mean). The reporter sought to explain the alleged lack of engagement by referring to two instances where the first-named appellant (the children's grandmother) had walked out of meetings involving the children (namely, at a child protection case conference in December 2011, and at a children's hearing in October 2012); a reported instance when she criticised the social work department; and a declaration by the first-named appellant at the last children's hearing that she "would not work" with the children's allocated social worker. Strikingly, none of these incidents relates to the grandfather. Therefore, the hearing has failed to distinguish, and to discriminate between, the first and the second-named appellants. In the second place, in my judgment, even taking these cited instances at their highest, viewed in context they do not merit the attachment of significant weight. The two instances when the first-named appellant was said to have "walked out" of meetings involving the children both occurred long before 12 August 2013, when the pre-hearing panel (presumably aware of that conduct) had nevertheless determined that she then had (or had then recently had) the necessary significant involvement in the upbringing of the children. Besides, these aged instances apart, the appellants' alleged lack of engagement (in some unspecific manner, with some unspecific requirement or opportunity) is too vague to warrant any adverse conclusion against the first-named appellant; and the hearing's conclusion that, but for this supposed lack of engagement, the appellants "may" have achieved an (unspecified) increased level of contact is equally vague and, at best, speculative. In the third place, the mere expression of disagreement with, or criticism of, social work decisions or action is of no material significance to the factual question in issue.

[61] In summary, the hearing's approach is flawed because it attaches too much importance to the rather vague assertion that the appellants have failed to "engage" with the social work department thereby supposedly losing an opportunity (which, at best, is speculative) to increase their involvement in the upbringing of the children; and it attaches insufficient weight to the fact that it is the compulsory supervision order itself that is the direct, proximate and dominant reason for the appellants' diminishing recent involvement.

Failure properly to exercise discretion to defer

[62] Thirdly, in my judgment, the decision of the children's hearing on 17 February 2013 is not justified because it was made in the absence of the second-named appellant (the children's grandfather); and without seeking, and having regard to, the views of the children, in breach of section 27(3) of the 2011 Act.

[63] The second-named appellant's reason for not attending had been accepted by the hearing, and his attendance had been excused at the outset. In the preceding six months, he had attended two of the previous three abortive hearings. There was no suggestion that he had disengaged from the process. Indeed, the social work integrated assessment report (page 17) records that the second-named appellant would like to have contact with the children and that the writer intended to "assess the suitability of contact between [the second-named appellant and the children]". While, in law, the second-named appellant must be assumed to have known of the possibility that a review of his status as a relevant person might arise at the hearing following upon the determination of the compulsory supervision order review, in practical terms the review of that status is unlikely to have been in his contemplation. Further, the children were old enough to express their views; their views had been sought on other matters relating to them; but they had not been given the opportunity to express a view on the specific factual issue in contention, namely the extent to which the appellants have, or have recently had, an involvement in their upbringing, and the nature of that involvement. It was practicable to seek those views; and, if obtained, the hearing ought to have had regard to them, in terms of section 27(3) of the 2011 Act. Lastly, there was no material prejudice to anyone in deferring a decision to allow the second-named appellant the opportunity to participate in the decision-making process and to obtain the views of the children.

[64] In light of that particular combination of circumstances, in my judgment the hearing should not have proceeded to determine the section 142(2) review on 17 February 2014. Instead, the hearing should have exercised its power, under section 142(3) of the 2011 Act, to defer a decision on the matter, to allow the second-named appellant the opportunity to attend and participate, and to seek the views of the children on the specific factual issue in contention. By electing to proceed, and by failing to exercise its discretion to defer, the hearing acted unreasonably and failed to comply with its statutory obligation under section 27(3) of the 2011 Act.

Decision

[65] For the foregoing reasons, I concluded that the determination of the children's hearing on 17 February 2014 that the appellants do not have (and have not recently had) a significant involvement in the upbringing of the children is not justified. Accordingly, I upheld the appellants' appeal against that decision and quashed the direction of the hearing that the appellants were no longer to be deemed to be relevant persons in relation to the children.

Sheriff

Glasgow, 20 March 2014