Scottish Sheriff Court Decisions

2015SCINV67

SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT INVERNESS

 

B222/13

 

JUDGMENT

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in the Appeal by

 

EAST RENFREWSHIRE COUNCIL

 

against

 

the decision of the Sheriff under Section 166 of the

Children’s Hearings (Scotland) Act 2011

 

 

Inverness,  14 September 2015

 

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal; Answers in the affirmative questions 1, 2, 3 and 5 in the stated case; Recalls the sheriff’s interlocutor of 17 October 2014; Directs the sheriff (1) that in terms of Sections 166(6) and 166(8) of the Children’s Hearings (Scotland) Act 2011 the relevant local authority is Highland Council; (2) to vary the decision of the children’s hearing of 19 August 2013 by determining that the duty under the compulsory supervision order falls on Highland Council; and (3) to order that Highland Council reimburse such sums as the sheriff determines to the appellants for the cost incurred in relation to that duty; Finds no expenses due to or by any party in respect of the appeal.

 

Introduction

[1]        This is an appeal by way of stated case against the decision of the sheriff under section 166 of the Children’s Hearings (Scotland) Act 2011 whereby he refused to overrule a decision of the children’s hearing that the appellants be the relevant authority for the child, D.

 

Legislation

[2]        Section 25 of the Children’s Hearings (Scotland) Act 2011 provides:

(1) This section applies where by virtue of this Act a children’s hearing, pre-hearing panel or court is coming to a decision about a matter relating to a child.

(2) The children’s hearing, pre-hearing or court is to regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the paramount consideration.

 

Section 83 provides:

(1) In this Act, “compulsory supervision order”, in relation to a child, means an order—

(a) including any of the measures mentioned in subsection (2),

(b) specifying a local authority which is to be responsible for giving effect to the measures included in the order (the “implementation authority”), and

(c) having effect for the relevant period.

 

Section 144 provides:

(1) The implementation authority must give effect to a compulsory supervision order.

(2) The implementation authority must in particular comply with any requirements imposed on it in relation to the child by the compulsory supervision order.

(3) The duties which an implementation authority may be required to carry out under a compulsory supervision order include securing or facilitating the provision for the child of services of a kind which the implementation authority does not provide.

 

Section 166 provides:

(1) This section applies where a duty is imposed on a local authority by virtue of—

(a) a compulsory supervision order,

(b) an interim compulsory supervision order, or

(c) a medical examination order.

(2) If the local authority is satisfied that it is not the relevant local authority for the child in respect of whom the duty is imposed, the local authority may apply to the sheriff for a review of the decision or determination to impose the duty on it.

(3) The sheriff may review the decision or determination to impose the duty with or without hearing evidence.

(4) The sheriff may hear evidence from—

(a) any local authority,

(b) the National Convener,

(c) the child in respect of whom the duty is imposed,

(d) a person representing that child,

(e) a relevant person in relation to that child,

(f) a person representing that person.

(5) Where the duty is imposed on the local authority by a children's hearing, the sheriff may require the Principal Reporter to lodge with the sheriff clerk a copy of the decision (and reasons) of the children's hearing.

(6) The sheriff must determine which local authority is the relevant local authority for the child.

(7) Where the local authority that made the application under subsection (2) is the relevant local authority for the child, the sheriff must confirm the decision of the children's hearing or the determination of the sheriff.

(8) Where another local authority is the relevant local authority for the child, the sheriff—

(a) must vary the order which imposed the duty so that the duty falls on that local authority, and

(b) may make an order for that local authority to reimburse such sums as the sheriff may determine to the local authority which made the application under subsection (2) for any costs incurred in relation to the duty.

 

Section 201 provides:

(1) In this Act, “relevant local authority”, in relation to a child, means—

(a) the local authority in whose area the child predominantly resides, or

(b) where the child does not predominantly reside in the area of a particular local authority, the local authority with whose area the child has the closest connection.

(2) For the purposes of subsection (1)(a), no account is to be taken of—

(a) any period of residence in a residential establishment,

(b) any other period of residence, or residence in any other place, prescribed by the Scottish Ministers by regulations.

(3) For the purposes of subsection (1)(b), no account is to be taken of—

(a) any connection with an area that relates to a period of residence in a residential establishment,

(b) any other connection prescribed by the Scottish Ministers by regulations.

 

Background circumstances

[3]        The child was born in Inverness in 2001. He is now 14 years of age. At the time of his birth his mother lived on the Isle of Skye but moved to Glasgow shortly after the child’s birth, leaving him in the care of her mother who also lived on Skye. In November of that year, her mother was granted an interim residence order, but he returned to the care of his mother in 2008. That ended in February 2012 when he was taken into care by Highland Council and moved to a residential unit in Inverness. Prior to that his home, whether with his grandmother or his mother, had always been on Skye. In April 2012 he moved to a residential unit in Manchester where he has remained.

[4]        The child’s mother was born in 1983 in Brighton, but moved with her mother to Glasgow in 1987. She remained there until 2000 when she moved with her mother and her mother’s husband to Skye. Apart from a period between September 2001 and December 2003 when she moved to Glasgow, the mother was resident on Skye until April 2013 when she moved, with her other son, to Barrhead, East Renfrewshire. Apart from a short visit for three days in October 2008, the child has never been in East Renfrewshire.

[5]        Highland Council Social Work Services first became involved in the child’s care in 2008, although they and, previously, Glasgow City Council Social Work Services had been involved in support for his mother. It appears that the involvement of the former social work services was at first on a voluntary basis, but that changed in February 2012 when the child was accommodated on an emergency basis under section 25 of the Children (Scotland) Act 1995. A multi-agency action plan was agreed in July 2013, some 15 months after the child had moved to Manchester, whereby the short or medium term target was “promotion of the attachment between D, his Mum and sibling”, with monthly supervised direct contact and weekly supervised telephone contact. It was hoped that “following what may be a substantial period of time being looked after, D will be able to return to the care of his mother”. Apart from occasional breaks, such direct contact has taken place monthly since May 2012 (although that has recently changed to quarterly – see below) and telephone contact has been on a weekly basis. The direct contact involves the mother and the child’s brother travelling to Manchester and the contact being supervised by staff at the residential unit. There is no present intention that he return to his mother’s care.

[6]        For present purposes it is unnecessary to describe in detail the difficulties which the child has. Suffice to say he is an extremely vulnerable child with complicated needs.

[7]        The child was the subject of a supervision order made in August 2012. At a children’s hearing on 20 August 2013 in Inverness, some four months after his mother had moved to Barrhead, it was decided to vary the order by changing the implementation authority from Highland Council to the appellants. The reasons for that decision are as follows:

“[D’s mother] has moved out of Highland. She had (sic) no connection to Skye and is not intending to return. D also has no connection to Skye. [His mother] finds it difficult to maintain communication with Social Worker in Skye and requested face to face contact so that she can better discuss D’s care and progress. This can only be done by having a Social Worker in her local area. D’s only close connection is to his mother who now lives in East Renfrewshire. It was also felt that as the long term plan is for D to return to his mother’s care in Barrhead.”

 

[8]        In a report dated 28 October 2013, D’s therapist at the residential unit recommended that he continue to receive weekly therapeutic work to deal with his needs. Before the sheriff evidence was led of an independent social worker who had prepared a report in which she assessed the child and the prospects of him returning to the care of his mother. The sheriff found in fact (10) that the long term goal was for the child’s rehabilitation into the family with his mother and brother, that the child had expressed the wish to see them more often, that a parenting assessment and formal contact assessment was required and that direction from the appellants’ social work department required to be undertaken with the mother to facilitate any rehabilitation.

[9]        The cost of the child’s placement in the residential unit and related schooling cost are considerable. As at March 2014 the costs were £3,650 per week.

[10]      The sheriff decided that the implementation authority should remain as the appellants. In determining to which authority the child had the closest connection, the sheriff rejected the appellants’ contention that sub-section 201(3)(a) of the 2011 Act required him not to take into account the period of residence in Manchester. Instead, he considered it relevant to consider the terms of section 22 of the Family Law (Scotland) Act 2006 in the context of determining the domicile of a child. He cited the joint report on domicile by the Law Commission and the Scottish Law Commission (SLC No 107, para 4.19) that they “accept a child to be treated as having his home with his parents, not only where they live together day-to-day but also where there are temporary separations even on a regular basis”. He concluded that the child’s “home” was with his mother in East Renfrewshire notwithstanding that he is under a compulsory supervision order to remain in Manchester. His “closest connection” is to East Renfrewshire based on his connection to his mother, his brother and where they reside. Having regard to the requirement of the children’s hearing to regard the need to safeguard and promote the welfare of the child throughout his childhood as the paramount consideration (sub-section 25(2) of the 2011 Act), he concluded that the hearing was entitled to make the decision it did, bearing in mind that the goal was for the child to be rehabilitated with his mother and that she had moved to East Renfrewshire to facilitate contact, the appellants having been aware since December 2012 that she intended to make that move and had applied to them to facilitate it. In any event, he agreed with hearing’s decision.

 

Appellants’ Submissions

[11]      Counsel for the appellants advised me that since the stated case had been prepared there had been a change in the child’s circumstances. At a recent children’s hearing the child had said that while he wanted to stay in Manchester he preferred to move to a residential unit which was more suitable for his age. This had now been done. In May of this year his mother had visited him for two days, the visit being supervised by staff. It had gone quite well. Nevertheless, the children’s hearing decided that contact be reduced to a quarterly basis.

[12]      Counsel submitted that the sheriff had erred in considering the welfare principle. That principle applies to any decision which requires to be made under the 2011 Act if that decision is “relating to the child” (sub-section 25(1)), but this does not mean that section 25 governs all decisions made under the Act (S v Proudfoot 1976 SLT 743; T v Locality Reporter 2014 CSIH 108; 2015 Fam L R 2; Norrie, Children’s Hearings in Scotland, para 9-16; Kearney, Children’s Hearings and the Sheriff Court, para 25.09; Norrie, Family Law Bulletin 2014, p128-4). The decision as to the relevant local authority is one of statutory interpretation. It is not a matter “relating to the child”. Whichever local authority is relevant, it is bound to have regard to the welfare principle as the paramount consideration. In any event, the sheriff also erred in deciding to which local authority area the child had the closest connection by reference to his “home” being with his mother and where she now resides. The sheriff should have had regard to the facts that the child had been born in and, until he moved to Manchester, had lived and been educated in the Highland Council area, that he had visited East Renfrewshire only once, that he had never been to his mother’s present home and that he had resided with her for only a fraction of his childhood. The result of the sheriff’s approach is that if the mother moves again the relevant local authority would require to be changed in circumstances where the child remains in the same place. The children’s hearing would be forced to consider the child’s connections to particular individuals as opposed to his connections to an area as required by the 2011 Act. Indeed, the children’s hearing might have to take into account the whereabouts of relevant persons other than just the mother. The sheriff’s reference to the Law Commission report was misconceived. The term “home” has no relevance to the construction of the term “closest connection”. The issue of “closest connection” arises in the statutory definition of the domicile of a child only where the child does not have a home (Family Law (Scotland) Act 2006, sub-section 22(3)). The sheriff had also misunderstood the meaning and effect of sub-section 201(3)(a), which properly construed are that during a period when a child is in residential accommodation the relevant local authority does not change. This was the “stop the clock” approach which had been adopted in England and Wales (Re BC (A Minor) 1995 3 FCR 598; Northampton County Council v Islington London Borough Council 2001 Fam 264). Such a construction ensures certainty and would enable children’s hearings to follow a consistent approach.

 

Submissions for Highland Council

[13]      The solicitor for Highland Council submitted that the sheriff’s approach was the correct one. On a practical level, a child’s connection to an area was not primarily a connection with the land, but with people on that land. His connection, other than with the staff of the residential unit, was only with his mother and brother. He was in contact with them and the plan had always been and continues to be that if the circumstances are right he will be rehabilitated with them. He now has no connection at all with the Highland Council area. The decision of the children’s hearing must have regard to the welfare principle; to do otherwise would be artificial. The wording in the comparable statute which governs England and Wales is materially different and the approach there offered no assistance in interpreting the Scottish legislation. The sheriff had correctly construed sub-section 201(3)(a); the connection to be disregarded was to “an area”; it was not a provision relating to a period of time, in contrast with sub-section 201(2)(a) which was. Local authorities in Scotland must adopt a swings and roundabouts approach when considering the financial consequences of decisions by the children’s hearing to change the relevant authority.

 

Submissions for the mother
[14]      The solicitor for the mother said that she supported the sheriff’s decision. The children’s hearing was under a duty to promote contact between the child and his mother (sub-section 17(c) of the Children (Scotland) Act 1995). It was therefore right for the hearing to take into account the welfare principle in determining the relevant authority. He adopted the same reasoning as the solicitor for Highland Council in the proper construction of sub-section 201(3)(a).

 

Discussion

[15]      Before coming to the issues raised in this appeal, I first of all want to draw attention to the delay in this case. The warrant for intimation of this summary application was granted by the sheriff in September 2013. It is inherently unsatisfactory that the whole proceedings before the sheriff, including the issue of the stated case, did not end until February of this year. Fortunately, the delay has not had any adverse practical effect on the child, but it is wrong that an application which is summary in nature, particularly one relating to a child, takes such an inordinate time. I do not seek to blame anyone for that; indeed it is I who has the statutory responsibility to ensure the efficient disposal of business in the courts within the sheriffdom. There are specific reasons why the delay took place in this case and in discussion with the sheriffs and the sheriff clerk there are strategic plans in place to ensure that such delay should not occur in other proceedings. Nevertheless, the parties to this application are entitled to an apology from me for the time which they have had to wait for a final judicial decision.

[16]      It appears that it is a necessary part of the care system for accommodated children in Scotland that from time to time a local authority requires to secure the services of outside agencies, whether public or private, in order to discharge its statutory duties. That might include services such as the assessment of the care plan for a child with special needs or fostering arrangements where the local authority does not have suitable foster carers available directly to it. It might also arise, as in this case, where a residential placement is unavailable from the authority’s own stock whether because of general pressure on placements or because of some special need of the child which requires the skills of a residential unit which specialises in the care of children with particular needs. The circumstances which caused Highland Council to place the child in Manchester were not explored in any detail. That placement might have been done for a variety of reasons. But it is also likely that other local authorities in Scotland, such as the appellants, might have occasion to make similar decisions for the children in their care. The change in the designation of the relevant authority will have obvious financial and labour consequences for the receiving one, as indeed for the departing one in the saving of resources. Over time that should not cause any authority a concern given that there is every possibility that it will be the departing authority as often as it is the receiving one. That is what was described as the swings and roundabouts principle by Thorpe LJ in Northamptonshire County Council v Islington London Borough Council (at p 375).

[17]      When a children’s hearing makes a compulsory supervision requirement it requires to specify a local authority which is to be responsible for giving effect to the measures included in the order – the implementation authority (section 83 of the 2011 Act). The need for that is self-evident. The 2011 Act gives the local authority a mechanism to question that decision where it considers that it should not be the implementation authority, by means of an application to the sheriff to review it under section 166. The statutory test for determining which is the relevant – and therefore appropriate – local authority is primarily based on the predominant residence of the child in the area of such authority (sub-section 201(1)(a)). Where the child does not predominantly reside in the area of a particular local authority the test is the authority in whose area the child has the closest connection (sub-section 201(1)(b)). Neither predominant residence nor closest connection is otherwise defined, but there are provisions which create an exception where the child has a period of residence in a residential establishment (sub-sections 201(2) and (3)). On the face of it therefore, the Act has created a simple formula for local authorities and children’s hearings to decide which is the relevant local authority in each case. In the event of a difference of view, an application to the sheriff, which as I have already pointed out should be summary in nature, can be made and a final decision reached. I am told that this is the first case of its kind which has come to an appellate court. It is plainly a concern to avoid in Scotland what appears to have happened in England where the comparable provisions, as Thorpe LJ describes in C (A Child) v Plymouth County Court, have proved to be “a fertile field of litigation in the family division” (para 15).

[18]      If I am right in that analysis of the underlying purpose of the provisions, the necessary consequence is that the welfare of the child is an irrelevant consideration in determining the relevant authority. As Thorpe LJ pointed out in Northamptonshire CC, (at p 375), it must be assumed that all local authorities are equally competent, professional and committed in the discharge of their responsibilities. As the children’s hearing recorded, the mother did not like dealing with the social worker who was based on Skye when she, the mother, lived in Barrhead, but the resolution to that problem, if it be one, would be in the hands of Highland Council as the implementation authority. There is no indication that it is in any way a concern for the child. On that matter, I therefore depart from the reasoning of the sheriff and adopt the approach of the Inner House in T v Locality Reporter, albeit in the context of a different statutory provision.

[19]      The question to which the sheriff ought to have had sole regard therefore comes down to this: which is the relevant local authority for the child having regard to sub-sections 201(1)(b) and 201(3)(a)? I do not regard it as useful to seek the answer to that question in the English authorities to which I was referred. As the solicitor for Highland Council pointed out, the statutory provisions are quite different. Those authorities are nevertheless useful in illustrating the potential for unpredictable, if not absurd, results, at least in the context of the English provisions, if there is an absolute rule of construction which is to apply in every case (C (A Child) at para 17). In my opinion, the starting point is to note that sub-section 201(1)(b) is in the present tense; in other words, it is the area to which the child has the closest connection as at the date of the children’s hearing making its determination or as at the date of the sheriff conducting his review. It is plain in this case that at either of those dates the child had no connection at all with the Highland area. His only connection to the area was his relationship with Highland Council, but if that were relevant the argument would become circular and in any event it is the connection to the area, not the authority, which is determinative. Thus, if that were the sole provision the conclusion must be that some other local authority, or none, would be the relevant one. However, it is at that point that one must consider the terms of sub-section 201(3)(a). In my opinion, properly construed that provision means that the children’s hearing should have kept out of account the period of the child’s residence in Manchester. The connection relates to a period of time, namely when the child was and is in the residential unit. That means that where the child’s closest connection to an area changes from the Highland area to an area of another local authority, such as East Renfrewshire, during the period of his residence in the unit such a change is ignored for the purposes of the section. Thus one is left to examine the connection immediately before the child went into the residential unit. Given, as I have said, the hearing or the sheriff is bound to consider the connection as at the date of their respective decisions, this exception sits uneasily with that role, but that, it seems to me, is a necessary consequence of Parliament deciding to make an exception for periods in residential establishments. The term “closest connection” is not defined, but as I have described and as the children’s hearing noted the reality in this case is that the child at present has no connection with the Highland area. The alternative construction proposed would mean that if a child in a residential establishment had developed no other connection to an area during his period of residence, there is the very real possibility that he would not be connected to any local authority area at all. That would be an absurd result and is presumably one reason why Parliament decided to introduce the exception to the general rule. The construction which I have preferred also avoids the undesirable result that if or when the child’s mother moves to another area or areas, on each occasion the hearing would be required to consider a variation of the supervision order, notwithstanding the fact that the child has not moved from Manchester.

[20]      As at the date when the child moved to Manchester his only connection was with the Highland area. In February 2012 when he was first taken into care his home was on Skye. His mother was also resident there. She did not move to Barrhead until April of the following year, by which time the child had been in Manchester for a year. It follows that the hearing was in error when it decided that the relevant authority be changed to the appellants.

[21]      For completeness I should add that I respectfully disagree with the sheriff in his references to the rules of domicile. A child’s domicile, which is a legal construct, will often be the same as the area to which he has the closest connection, but it is not determinative. Indeed, it seems to me that to introduce into the construction of the provision another legal principle is simply to confuse matters. The decision on what is the closest connection to an area is essentially one of fact, based upon the whole surrounding circumstances.

 

Decision

[22]      Accordingly, for the foregoing reasons this appeal should be allowed. There are five questions posed in his stated case. I answer questions 1, 2, 3 and 5 in the affirmative. With all due respect to the sheriff, I do not understand question 4, but in the circumstances it is unnecessary for me to answer it. In terms of sub-section 167(6) I am required to remit the case to the sheriff for disposal in accordance with such directions as I may give. The amount of the sums to be reimbursed has presumably changed since the hearing of the appeal. I have therefore made a general direction in that regard. It should be straightforward for the appellants and Highland Council to agree the amount and to invite the sheriff to make the appropriate order.

[23]      It was agreed that there should be no finding of expenses.