Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

[2016] SC GLA 45

NOTE

by

SHERIFF S. REID, Esq.,

in appeals under section 154 of the Children’s Hearings (Scotland) Act 2011

by

G and J

APPELLANTS

against

decisions of the children’s hearing for the City of Glasgow dated 27 January 2016 concerning the children, A and B

 

For the mother: Ms Gallagher, Livingstone Brown, Glasgow

For the grandfather: Ms Gray, Turnbull McCarron Ltd, Glasgow

For the principal reporter: Scottish Children’s Reporter Administration, Glasgow

 

 

Introduction

[1]        A relevant person in relation to a child, and a person “representing” such a relevant person (“a representative”), each have an express statutory right to attend a children’s hearing in respect of that child. The right is not absolute. It is qualified. In certain circumstances a children’s hearing can exclude a relevant person and/or a representative from the hearing.

[2]        These appeals concern the circumstances in which a children’s hearing can exercise its power to exclude a representative from a hearing.

 

Factual summary

[3]        G is the mother of two boys, A and B. The children are, respectively, nine and seven years old. J is the maternal grandfather of the children.

[4]        The boys have been subject to compulsory supervision for many years now. They live together with the same foster carers.  Grounds of referral in respect of the children (involving chronic neglect) were established in May 2013.

[5]        Contact between, on the one hand, the boys and, on the other hand, their mother and grandfather has reduced over the years.  At its height, in July 2012, it was a condition of the original supervision requirement (under the Children (Scotland) Act 1995) that the children have contact with their mother three times per week for two hours supervised by the social work department.  The frequency and duration of contact were varied in August 2012 to twice per week for one and a half hours. There was little change in that arrangement until July 2015 when contact was reduced to once per week. On 16 September 2015, contact was reduced to two times per month.

[6]        On 27 January 2016, the children’s hearing reduced contact to a minimum of once every two months.

[7]        The mother and grandfather lodged appeals to the sheriff against that latter decision, in terms of section 154 of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”). On 8 March 2016, having heard submissions, I allowed both appeals and directed the reporter to convene a children’s hearing to reconsider the decision of 27 January 2016.

[8]        Multiple grounds of appeal were argued before me. For the purposes of this Note I need only address one, namely the alleged irregularity in excluding the appellants’ legal representatives from the children’s hearing while the views of the children were being sought.

 

Submissions for the mother

[9]        For the mother it was submitted that the exclusion of her legal representative from the children’s hearing while the views of the children were being sought was not justified.  It was submitted that the test set in section 77 of the 2011 Act was not met as the presence of her representative would not have impeded the expression of the children’s views or caused them distress.  It was said that the social work department had been “strongly opposed” to the representative’s presence from the outset and had purportedly communicated to the reporter that the children had stated that they wanted to speak to the hearing without any “strangers” being present.

[10]      It was submitted that the mother’s legal representative was not a “stranger” to the children.  The children had previously expressed their views to children’s hearings in the presence of the mother’s legal representative, with no evident distress or impediment.

 

 

Submissions for the grandfather

[11]      The grandfather’s agent adopted the foregoing ground of appeal.  Likewise, the agent stated that she had been present at previous children’s hearings when the children had articulated their views to the hearings without evident difficulty. 

 

Submissions for the reporter

[12]      The reporter had been personally present at the children’s hearing on 27 January 2016. He sought to give an account of his communications with the children and the hearing, and of his understanding of the reasoning behind the hearing’s decision to exclude the appellants’ representatives.

[13]      I was advised that, consistent with the practice of many of his colleagues, it was the reporter’s habitual practice to canvass the views of the children (and of the relevant persons) in advance of the hearing.  The reporter recounted that he was aware of views having been expressed previously that the children could not voice their opinions freely with others being in the room. The reporter recounted that the Children’s Rights Officer (previously appointed by another children’s hearing) had told him that the elder sibling (A) had stated that he could not express his views without “the room being cleared”.  In that context, the reporter explained that he had spoken to the boys in advance of the hearing. Specifically, the reporter stated the following:-

“So I spoke to the boys. I asked them – did they wish to speak to the hearing on their own? Did they wish anyone in the room?....Both children, when I asked them, said they would prefer the room to be cleared.” 

In a similar vein, later in his submission the reporter recounted that the views expressed to him by the children were that they would prefer to be in the room on their own and would not like it if others were there.

[14]      No objection was taken to the exclusion of the relevant persons. However, I was told that the mother’s solicitor objected to her proposed exclusion, as representative, from the hearing while the children were giving evidence.  Accordingly, the hearing was convened in the first instance to discuss whether the representatives should be excluded from the hearing. 

[15]      The reporter recounted that he had then relayed to the children’s hearing the information as set out in paragraph [13], above. The mother’s agent continued to oppose her exclusion, as representative, from the hearing. Having considered matters, the hearing decided to exclude the appellants and their legal representatives while the views of the children were being obtained. The reporter understood that the rationale for that exclusion was because the presence of the representatives “would prevent the hearing from obtaining the child’s views”, in terms of section 77(1)(a) of the 2011 Act. 

[16]      The reporter recounted that the hearing then convened to consider the substantive issues. The hearing met with, and took the views of, both children together, in the absence of the relevant persons and their legal representatives. The reporter was present throughout.

[17]      At the appeal hearing before me, the reporter did not claim to have a written note, contemporaneous or otherwise, of what was said to or by the children in the absence of the relevant persons and their representatives. Instead, he sought to relay to me his recollection of “basically” what was said by the children. The reporter assured me that no leading questions were asked of the children by the panel members, that the views of the children were sought in “an open way”, and that the children’s views were “adequately expressed and noted”. 

[18]      Lastly, he submitted that if there was an irregularity in excluding the legal representatives, it was procedural in nature and was not a material irregularity.

 

Reasons for decision

[19]      In my judgment, the decision of the children’s hearing to exclude the legal representatives of the relevant persons from the hearing, while the views of the children were sought, is not justified. I reached that conclusion for two reasons.

[20]      Firstly, the hearing failed to give adequate reasons for its decision. 

[21]      Secondly, there was no adequate evidential basis upon which the hearing could properly exercise its power of exclusion under section 77 of the 2011 Act.  Accordingly, the exclusion of the representatives was ultra vires. The unauthorised exclusion of the relevant persons’ legal representatives from the hearing while material evidence was being heard constituted a substantive unfairness in the determination of the relevant persons’ civil rights, being a breach of principles of natural justice et separatim a violation of the relevant persons’ Convention right under Article 6, ECHR.  Esto the exclusion of the relevant persons’ legal representatives is properly characterised as a procedural irregularity (as it was sought to be described by the reporter), in my judgment that procedural irregularity was material in nature.

[22]      I explain my reasoning in more detail below.

 

The legislation

[23]      A relevant person in relation to the child, and a person “representing” such a relevant person, each have an express statutory right to attend a children’s hearing in respect of that child (section 78, 2011 Act). 

[24]      The statutory right of the representative to attend is not absolute. It is qualified to this extent. The hearing may exclude the representative of a relevant person if one or other of the conditions set out in section 77 of the 2011 Act is satisfied. Section 77 states:-  

“77 Power to exclude relevant person's representative from children's hearing

 

(1) This section applies where a children's hearing is satisfied that the presence at the hearing of a representative of a relevant person in relation to the child—

(a) is preventing the hearing from obtaining the views of the child, or

(b) is causing, or is likely to cause, significant distress to the child.

 

(2) The children's hearing may exclude the representative from the children's hearing for as long as is necessary.”

 

[25]      An identical provision empowers the hearing to exclude a relevant person from the children’s hearing (section 76, 2011 Act).

 

Preliminary observations

[26]      Four preliminary observations may be made.

[27]      First, the right of a relevant person and his or her representative to attend is a statutory reflection of the common law principle of natural justice that all material evidence which is to be considered and taken into account by a decision-making tribunal should be disclosed, in like manner, to the interested parties (in this case, the relevant persons). In that way, the parties can properly hear, see, consider, assess, test and challenge the evidence that is being presented to the tribunal.  This is an important feature of the principle of natural justice. It is also implicit in the concept of a fair hearing under Article 6 of the ECHR. Naturally, circumstances may justify interference with that Convention right. But any such interference must be justified and proportionate.

[28]      Second, in sections 76 & 77 of the 2011 Act the Scottish Parliament has made separate (but identical) provision for the exclusion of, respectively, relevant persons and their representatives. Why? A single provision covering both relevant persons and their representatives could readily have achieved the same end. I infer that the purpose of this apparent duplication is to under-score the difference between a relevant person and that person’s representative. In that way, the hearing is encouraged to adopt a discerning approach in deciding whether, in any given set of circumstances, the power of exclusion should be exercised in relation to both the relevant person and the representative, or to only one of them. Separate provision discourages a non-discriminating blanket exclusion.

[29]      Third, the statutory power of exclusion is explicitly limited. The hearing must be satisfied that one or other of the two specific conditions is satisfied. The first condition (section 77(1)(a)) deals with a situation where the obtaining of the child’s views is being impeded. The second condition (section 77(1)(b)) deals with the inflicting of significant distress upon the child. The prescribed circumstances are quite specific. There is no wider, still less an unfettered, discretion to exclude from the hearing a representative who otherwise has a statutory right to be there.

[30]      Fourth, a difference in the wording of the two specific statutory conditions is immediately apparent. The first condition (section 77(1)(a)) requires that the presence of the representative at the hearing “is preventing the hearing from obtaining the views of the child”. The second condition (section 77(1)(b)) requires that the presence of the representative at the hearing “is causing, or is likely to cause, significant distress to the child”. The difference may be explained in this way. The use of the present tense (“is preventing” and “is causing”) in both sections 77(1)(a) & (b) suggests that the hearing must be satisfied as to the existing, present, current effect of the representative’s attendance at that hearing. However, section 77(1)(b) is wider than section 77(1)(a) in that section 77(1)(b) imports an alternative prospective assessment of the stated consequence (the infliction of significant distress).

[31]      Thus, under section 77(1)(b) a hearing may exclude a representative (i) when, at the hearing, the attendance of the representative is presently, currently causing significant distress to the child, or (ii) when, although the attendance of the representative is not presently causing the child any distress whatsoever (or the distress is not significant), the hearing is satisfied, on an objective analysis, that significant distress is likely to be caused to the child (in the sense that there is a real risk of such an outcome) by the representative’s attendance. In contrast, under section 77(1)(a), a hearing may exclude a representative only where, at the hearing, the attendance of the representative is presently, currently preventing the hearing from obtaining the views of the child.

[32]      To be clear though, in my judgment the use of the present tense in section 77(1)(a) does not require that the child must be brought face-to-face with the person who is allegedly causing the impediment (still less, the alleged significant distress), or that the impediment (or distress) must occur in front of the panel members. In most cases, it will be quite sufficient for the hearing to proceed on the basis of credible, reliable, specific and contemporaneous information, of sufficient quality, provided to it by others, without the necessity of the child and the representative ever being in the vicinity of, still less in the same room as, the person allegedly causing the impediment or the distress. 

[33]      I draw some comfort for that conclusion from the decision in Cowie v HM Advocate 2010 JC 51. Though Cowie involved a different legal and factual context, some analogies may be drawn with it. Section 259 of the Criminal Procedure (Scotland) Act 1995 allows hearsay evidence of a witness to be admissible in defined circumstances, including in a situation where, in short, the witness has been called and sworn, but then “refuses” to give evidence. In Cowie, the witness in question had taken the oath, reluctantly gave evidence on one day but, on the next day, it was communicated to the court by the court macer that the witness was refusing to enter the witness box. The issue for the court was whether these circumstances constituted a refusal in terms of the statutory provision (thereby allowing hearsay evidence of that witness to be admitted). It was contended that the legislation required that the witness be brought into the witness box before the court could satisfy itself that there was a refusal. This contention was rejected by the appeal court. The Lord Justice Clerk (Gill) stated (at paragraph 19):-       

“In our opinion, the trial judge was right in concluding that by her conduct the witness had in effect refused to give evidence…. There is no substance in the contention that section 259 would have applied only if the witness had been brought to the witness box by force and had thereafter refused to give the relevant evidence. The trial judge was right to accept the word of two officers of the court, both of whom had repeatedly asked the witness to come into the court room and give evidence, that the witness was refusing to do so.”

 

[34]      A broadly similar situation arose in SRS v Procurator Fiscal, Tain [2016] SAC (Crim) 3. In that case, a child witness was due to give evidence in a criminal trial by video-link from a remote site. When the child was called, the child could not be seen on the video-link. Witness support staff, and the procurator fiscal depute, reported separately to the court that the child was refusing to enter the room to give evidence; and the fiscal depute reported to the court that she had heard the child in a hysterical state, shouting and crying. On the basis of this information alone, the sheriff concluded that the child was refusing to take the oath; and the child’s hearsay evidence was admitted. On appeal, the Sheriff Appeal Court agreed that there was no material difference with the situation that arose in Cowie, supra, and that the sheriff was entitled to be satisfied, on the basis of the information reported to him, that the witness was refusing to give evidence.

[35]      In short, provided it proceeds upon credible, reliable, specific and contemporaneous information, of sufficient quality, provided to it by others, a hearing can quite legitimately conclude that the attendance of a relevant person or representative is preventing the hearing from obtaining the child’s views; and, on that basis, the hearing may exercise its powers of exclusion under section 76 and/or section 77 of the 2011 Act, as appropriate. There is no need for a confrontation to be manufactured in the presence of the hearing between the child and relevant person/representative.

 

Why is the present decision not justified?

[36]      Against that legal background, in the present case in my judgment the decision of the children’s hearing on 27 January 2016 is not justified for two reasons.

 

Failure to provide adequate reasons

[37]      Firstly, the hearing failed to give adequate reasons for its decision. The written reasons state:-

“The children had been clear that they wished to speak to the Panel on their own. Solicitor for mum asked to be present but the Panel decided to exclude all adults so the children could speak freely.”

 

I compare this articulation of the reasons with the wording of the statutory power of exclusion under section 77(1)(a). The hearing’s written reasons do not disclose (i) that the hearing is presently, currently being prevented from obtaining the children’s views, or (ii) the perceived cause of the alleged impediment (specifically, that is the attendance of the appellant’s representatives that is causing that impediment). Nor do the written reasons make even the most fleeting reference to the evidential basis upon which a conclusion has been reached by the hearing upon either of the foregoing critical issues.

[38]      A child may well have expressed a preference – even a strong and unambiguous preference – to speak to the hearing in private, but that does not, by itself, establish the statutory prerequisite that the presence of any particular person (the representative) is actually preventing the hearing from obtaining the child’s views.

[39]      Besides, the written reasons disclose a certain ex facie illogicality. Was it really the case that the children were impeded from speaking up because of the presence of “adults” in the room? Besides, if “all adults” were indeed being excluded to allow the children to speak freely (as the written reasons bear to record), why was the reporter allowed to remain in attendance? The written reasons do not accurately record the reason for the exclusion of the representatives or, if they do, plainly those reasons do not reflect what actually occurred. Something is missing.   

[40]      The reporter did his best to fill in the blanks. He sought to explain to me what information he had ingathered prior to the hearing; he sought to explain what had been said to and by the children and others; he sought to explain his understanding of the rationale of the hearing’s decision. But this second-hand, ex post facto rationalisation and re-writing of the reasons was all fairly unsatisfactory.

[41]      The written reasons could readily have explained why (i.e. on what evidential basis) the hearing was allegedly being prevented from obtaining the children’s views (if that is indeed what was happening, as opposed to the children merely expressing a clear preference). The reasons could readily have disclosed whether the alleged impediment (if there was such an impediment) was due to the presence of the relevant persons, or to the relevant persons’ representatives, or to both, or for some other reason entirely. In the event, they did not do so.

 

Substantive unfairness in the determination of the relevant persons’ civil rights

[42]      Secondly, even taking the reporter’s account at face value, and on the assumption that it does indeed articulate the evidential basis upon which the hearing proceeded, in my judgment it discloses that there was no proper evidential basis for the decision to exclude the legal representatives from the hearing while the views of the children were obtained. Put another way, the information upon which the decision was supposedly predicated does not support the conclusion that the presence of the representatives was preventing the hearing from obtaining the children’s views.

[43]      A children’s hearing has no power unilaterally to exclude the legal representatives of a relevant person, except in the exercise of the specific statutory power under section 77 of the 2011 Act. The exercise of that power was not shown to be justified in the present case. Accordingly, the exclusion of the legal representatives was ultra vires.

[44]      To explain, what is missing in the reporter’s pre-hearing enquiries is any attempt to elicit or discover (a) whether the children actually are presently, currently unable or unwilling to express their views, or are otherwise being prevented from expressing their views; and (b) if so, why that is occurring, specifically, whether any such impediment has any causal connection whatsoever with the attendance of the relevant person’s representative.

[45]      To take a simple example, it may well be that the impediment to the articulation of the child’s view is due solely to the presence of the relevant person – and that the presence of the (legal) representative is entirely neutral, with no causal potency whatsoever. The power of exclusion under section 77 is exercisable only if the hearing can properly be satisfied that there is a causal link between the attendance of the representative and the impediment to the obtaining of the child’s views. A blanket approach of “clearing the room” simply because the child is not speaking up – with no enquiry to ascertain why the child is not speaking up – does not reflect the specific, limited and discriminating terms of the legislation. The power of exclusion is not to be exercised merely to reduce the number of adults in the room in a well-intentioned effort to make the child feel more comfortable. (It would be equally unfair arbitrarily to exclude, say, the reporter to achieve that same end.) The power of exclusion under section 77 is exercisable only if the hearing is actually being prevented from obtaining the child’s views – and, on the information available, that impediment can properly be attributed to the presence of the representative (either solely or in part).

[46]      In this respect, depending upon the circumstances, the precise identity and role of the representative may be of some relevance to the hearing’s deliberations. The 2011 Act does not define or limit the identity or qualifications of the representative. The role and permitted contribution of the representative at the hearing are not specified. Thus, the representative might be a legally qualified professional (a solicitor or counsel) undertaking a full-blown professional advocacy and advisory role; or a non-legally qualified person (such as a relative or friend) providing ad hoc representation, perhaps more in the nature of moral support; or a family member or third party providing translation assistance. Most commonly, of course, the representative is a practising solicitor, who has no familial connection with the relevant person or child, who has no association with the grounds of referral, who is bound by professional obligations of independence and integrity, and who is subject to exacting regulatory oversight and sanction for breach. I mention the amorphous nature of the representative’s role because, depending upon the circumstances, the precise identity and role of the representative in any particular case might be a relevant factor in deciding whether, firstly, the necessary causal connection between the representative’s attendance at the hearing and the alleged impediment is properly to be inferred (or otherwise established to the panel’s satisfaction) (per section 77(1), 2011 Act) and, secondly, whether the discretionary power of exclusion (in section 77(2), 2011 Act) should then be exercised.  

[47]      To take a second, more subtle, example, a child may be refusing to speak up in the mistaken belief that, by having the room cleared, his or her views will be kept confidential and will not be recounted to the relevant person.  In that scenario, the child’s belief would be mistaken because, under statute, his or her views must be communicated in any event (albeit in general terms) to the relevant persons by the chair person (2011 Act, section 76(3)). Properly understood, in that scenario it would not be the presence of the legal representative that is preventing the hearing from obtaining the child’s views. Rather, the impediment would be attributable to the child’s wish for confidentiality and his or her misapprehension as to the powers of the hearing. So, if a child merely wants to keep his views confidential from his parents (i.e. if that is the reason for the prima facie impediment), the statutory power of exclusion under section 77 is not the appropriate mechanism to address the impediment, standing the obligation of the chairing member to disclose to the relevant persons the generality of the hearing’s discussion with the child (Norrie, Children’s Hearings in Scotland (3^rd edition), para. 6-26)  

[48]      In the present case, no enquiry appears to have been made – and no information was available to the hearing or to me – to ascertain the reason for the alleged impediment, specifically to ascertain whether any alleged impediment was attributable in any way to the attendance of the representatives. Instead, the children appear simply to have been offered the option of clearing the room. No doubt, that would be an attractive preference for a child, especially if presented in leading form; but the expression of such a preference does not establish that the child is otherwise presently, currently refusing to express his views, still less that any such refusal is attributable to the attendance of the (legal) representative.  

[49]      The high water-mark of the reporter’s case was, perhaps, the submission that he had been advised by the Children’s Rights Officer that the eldest sibling (A) had stated that he could not give his views without the room being cleared. However, (i) there was no information as to when this statement was allegedly made by the child to the Children’s Rights Officer (and, therefore, no adequate basis to conclude that it constituted contemporaneous evidence of a present, current impediment at the hearing to the expression of the child’s views, as opposed to a now-historic comment by the child or a mere expression of preference) (see section 77, 2011 Act: “the presence at the hearing of a representative… is preventing…”); (ii) there was no information as to the context in which that statement was allegedly made, and, as a result, whether it constituted a reliable statement of the present position of the child at the hearing; and (iii) there was no information to shed light upon the reason for the child’s alleged inability or refusal to speak, specifically to justify the inference that the alleged impediment was causally connected in any way with the attendance of the legal representative (or whether it was attributable to some extraneous factor altogether) (see section 77, 2011 Act: “the presence at the hearing of a representative…is preventing…”).

[50]      Lastly, I was not satisfied that the hearing had proceeded upon reliable information from the reporter as to the children’s present position at the hearing. The reporter sought to assure me that no leading questions were asked of the children by the panel members when they met outwith the presence of the legal representatives. That may be so. But the reporter’s own questions of the children in advance of the hearing (so far as reported to me in his submissions) were themselves prima facie leading questions. It will be recalled that, according to the reporter’s own account (see paragraph [13], above), he said:-

“So I spoke to the boys. I asked them – did they wish to speak to the hearing on their own? Did they wish anyone in the room?”

 

Questions in such leading terms will almost inevitably prompt an expressed preference from a child for the room to be cleared. In my judgment this undermines the reliability of the information upon which the hearing’s decision (to exclude) was predicated.

 

Is the error of law substantive or procedural in nature?

[51]      The unauthorised exclusion of the relevant persons’ legal representatives from the hearing is an error of law. In my judgment, it is an error which, in nature, is properly characterised as constituting a substantive unfairness, rather than merely as a procedural irregularity (Norrie, supra, para. 14-15). The exclusion of a person (and his or her legal representative) from a hearing while material evidence is heard constitutes a substantive unfairness in the determination of a party’s civil rights, being a breach of principles of natural justice et separatim a violation of the party’s Convention right under Article 6, ECHR.  The unauthorised exclusion of a party’s legal representative from the hearing infringes a person’s right of effective access to justice; the right to equality of arms; and the right to a fair hearing in the presence of the party affected (or, at least, in the presence of the party’s representative). While none of these specific elements of the Article 6 Convention right is absolute, the present interference with them has not been shown to be either justified or proportionate. In my judgment, this was not an error of law that was lightly to be countenanced or waived.

[52]      Esto the exclusion of the relevant persons’ legal representatives is properly characterised as a procedural irregularity, in my judgment that procedural irregularity is material in nature. First, it is material because it had a significant effect upon the conduct of the hearing itself by excluding the legal representatives from part of the proceedings during which significant and contentious evidence was heard. Second, it is material because the evidence heard outwith the presence of the relevant persons’ legal representatives (namely, the views of the children) was itself in significant contention and, ultimately, a highly potent and influential factor upon the outcome of the hearing. Third, it is material because it has caused significant prejudice to the relevant persons.  The content of the children’s views, and the circumstances in which they were expressed, were of direct relevance to the disputed issues and likely to be influential upon the ultimate decision. By choosing to receive that material evidence directly from the children outwith the presence of the relevant persons’ legal representatives, the relevant persons and their representatives obtained only a second-hand and generalised account of that evidence; they did not have the same opportunity as the hearing members to see, hear, consider, assess, test and challenge that evidence; and they were placed at a significant disadvantage in then making submissions upon the weight to be attached to that critical evidence.  Indeed, the prejudice continues in that the ongoing lack of clarity as to precisely what was said by the children, and in what context, is in large part the catalyst for these present appeal processes.  

 

Decision

[53]      For the foregoing reasons, I allowed the appeals and directed the reporter to convene a children’s hearing to reconsider the decision of 27 January 2016.

 

 

SHERIFF

Glasgow, 14 June 2016