Scottish Sheriff Court Decisions

2015SCLER61

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK

Note

By

Sheriff Philip Mann

In

Appeal under Section 154 of the Children’s Hearings (Scotland) Act 2011

By

W R

Against

Scottish Children’s Reporter Administration

Relative to

A Further Interim Compulsory Supervision Order made under Section 96 of the Act

Lerwick 15 September 2015

1.         The Appeal

This was an appeal by a father in terms of section 154 of the Children’s Hearings (Scotland) Act 2011 against a further interim compulsory supervision order made by the children’s hearing in respect of his child under section 96 of the Act.  I write this note in order to highlight what appears to be a piece of defective drafting in the Act.  I trust that the Children’s Reporter will bring the matter to attention as appropriate in order that consideration might be given to making amendments to the Act, assuming that it is accepted that there is force in my observations.

2.         The Statutory Provisions

2.1       In reviewing the statutory provisions in preparation for the hearing I became concerned about the wording of certain sections of the Act.  Given that this was an appeal that required to be heard and disposed of within 3 days in terms of section 157 of the Act I caused my clerk to alert parties to my concerns in order that they would have the opportunity to prepare and make submissions without the necessity of an adjournment.  I was concerned that there might be a question as to the competency of the further interim compulsory supervision order appealed against and, separately and although not directly relevant to the appeal, as to the effectiveness of section 98 of the Act relative to applications to the court for extension or extension and variation of interim compulsory supervision orders.

2.2       Section 86 of the Act is in the following terms:-

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

(a) including any of the measures mentioned in section 83(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.

(2) An interim compulsory supervision order may, instead of specifying a place or places at which the child is to reside under section 83(2)(a), specify that the child is to reside at any place of safety away from the place where the child predominantly resides.

(3) In subsection (1), “relevant period” means the period beginning with the making of the order and ending with whichever of the following first occurs—

(a) the next children's hearing arranged in relation to the child,

(b) the disposal by the sheriff of an application made by virtue of section 93(2)(a) or 94(2)(a) in relation to the child,

(c) a day specified in the order,

(d) where the order has not been extended under section 98 or 99, the expiry of the period of 22 days beginning on the day on which the order is made,

(e) where the order has been extended (or extended and varied) under section 98 or 99, the expiry of the period of 22 days beginning on the day on which the order is extended.

(4) Subsections (3) to (6) (except subsection (5)(a)) of section 83 apply to an interim compulsory supervision order as they apply to a compulsory supervision order.”

2.3       Section 96 of the Act is in the following terms:-

“(1) This section applies where—

(a) under section 93(5) a grounds hearing makes an interim compulsory supervision order in relation to a child, and

(b) the order will cease to have effect before the disposal of the application to the sheriff to which it relates.

(2) The Principal Reporter may arrange a children's hearing for the purpose of considering whether a further interim compulsory supervision order should be made in relation to the child.

(3) If the children's hearing is satisfied that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary that a further interim compulsory supervision order be made, the children's hearing may make a further interim compulsory supervision order in relation to the child.

(4) The children's hearing may not make a further interim compulsory supervision order in relation to the child if it would be the third such order made under subsection (3) in consequence of the same interim compulsory supervision order made under section 93(5).”

2.4       Section 98 of the Act is in the following terms:-

“(1) This section applies where—

(a) a child is subject to an interim compulsory supervision order (“the current order”), and

(b) either—

(i) the current order is made under section 93(5) and by virtue of section 96(4) a children's hearing would be unable to make a further interim compulsory supervision order, or

(ii) the current order is made under section 100(2).

(2) The Principal Reporter may, before the expiry of the current order, apply to the sheriff for an extension of the order.

(3) The Principal Reporter may, at the same time as applying for an extension of the current order, apply to the sheriff for the order to be varied.

(4) The current order may be extended, or extended and varied, only if the sheriff is satisfied that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary that the current order be extended or extended and varied.”

2.5       Section 100 of the Act is in the following terms:-

“(1) This section applies where—

(a) a child is not subject to an interim compulsory supervision order, and

(b) an application to the sheriff by virtue of section 93(2)(a) or 94(2)(a) in relation to the child has been made but not determined.

(2) If the sheriff is satisfied that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary as a matter of urgency that an interim compulsory supervision order be made, the sheriff may make an interim compulsory supervision order in relation to the child.”

3.         My Concerns

3.1       I was concerned that section 86(3)(a) provides that an interim compulsory supervision order ceases to have effect on the occurrence of the next children's hearing arranged in relation to the child.  Section 96(2) authorises the reporter to arrange a children's hearing to consider whether a further interim compulsory supervision should be made in relation to the child.  Such a hearing, on the face of it, is a hearing arranged in relation to the child.  Therefore, it could be argued that the interim compulsory supervision order made in terms of section 93(5) ceases to have effect at the section 96(2) hearing.  If that is correct then from that point onwards the section 93(5) order has ceased to have effect and cannot meet the criterion specified in section 96(1)(b) for the application of section 96, namely that it is an order which will cease to have effect before disposal of the application to the sheriff.  If that is correct then section 96 can only apply on one occasion.  This, of course, flies in the face of section 96(4) which would suggest that it can apply twice.  Nonetheless, it seemed to me that there must be a question whether more than one further interim compulsory supervision order can be made by virtue of section 96(3).  I could not see from the papers that I had before me at the time whether or not the appeal related to a first or second further interim compulsory supervision order. 

3.2       Whilst it was not directly relevant to the appeal, I was concerned that if there is force in the foregoing comments then section 98 can never apply in respect of an interim compulsory supervision order made under section 93(5) since such an order could not be the "current order" if it has ceased to have effect.

4.         The Hearing

4.1       At the hearing on 11 September 2015 the solicitor for the father advised me that the further interim compulsory supervision order appealed against was the second such order following upon the original order under section 93(5).  He contended that it was incompetent for the reasons outlined in paragraph 3.1 above.  It was thus a nullity and the appeal should be allowed on that basis.

4.2       The Reporter accepted that the wording of Act posed a difficulty but maintained that the relevant provisions should be interpreted in a purposive way.  The meaning of the statutory provisions, and thus the intention of parliament, was quite clear.  The purpose and intention was, in effect, to allow an interim compulsory supervision order made under section 93(5) to be extended on two occasions by the children’s hearing but to provide that any further extension, or extension and variation, should be by the court.  She referred, for support of her contention as to a purposive interpretation, to various passages in the textbook Craies on Legislation, eighth edition.

5.         My Decision

5.1       Bearing in mind the need to regard the welfare of the child as the paramount consideration, I was prepared to accept the Reporter’s submission and proceeded to deal with the matter on the basis that the making of the further interim compulsory supervision order appealed against was competent.  If I was wrong to proceed on that basis and if, accordingly, the appeal fell to be allowed the result would have been that the child would not have been subject to an interim compulsory supervision order.  In that event I would have been prepared, after hearing submissions from the parties, to consider making such an order in terms of section 100.

5.2       Thus, all would not have been lost in the event of there having been a need for the child to be subject to an interim compulsory supervision order.  But, in my view, such an important matter should not have to be dealt with on such an unsatisfactory and inventive basis.

6.         Possible Remedy

6.1       The difficulties which I have highlighted could be resolved by amendment of the Act.

6.2       Section 96(1)(a) could be amended to read:-

“under section 93(5) or under subsection (3) hereof a children’s hearing makes an interim compulsory supervision order or a further interim compulsory supervision order, as appropriate, in relation to a child,“

6.3       Section 96(4) could be amended to read:-

“The children's hearing may not make a further interim compulsory supervision order in relation to the child if it would be the third such order made in relation to the same application to the sheriff by virtue of section 93(2)(a) or 94(2)(a)”

6.4       Section 98(1)(b)(i) could be amended to read:-

“the current order is made under section 96(3) and by virtue of section 96(4) a children's hearing would be unable to make a further interim compulsory supervision order”

6.5       Whether or not the Act should be amended is, of course, a matter for others to consider.

Sheriff Philip Mann