A.a. V. J.h. Locality Reporter Manager
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Brian A Lockhart |
| Court | Sheriff Court |
| Date | 30 August 2013 |
| Docket Number | B676/12 |
| Published date | 01 October 2013 |
| AIRDRIE SHERIFF COURT | |
| Sheriff Principal B A Lockhart | B676/12 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART in causa AA Appellant against JH, Locality Reporter Manager Respondent in respect of the Child BB |
For Appellant: Mrs J Donnelly, Solicitor, Glasgow
For SCRA: Ms M L Johnstone, Solicitor, Edinburgh
The Safeguarder: Mrs L George, Solicitor, Hamilton
For the Fostercarer: Mr C Thomson, Solicitor, Glasgow
AIRDRIE: 30 August 2013
The Sheriff Principal, having resumed consideration of the cause, answers the three questions posed in the sheriff's stated case in the negative, refuses the appeal and adheres to the sheriff's interlocutor of 11 January 2013; finds no expenses due to or by any party in respect of the appeal.
NOTE:
Background
[1] The Social Work Department have been involved in the care of the child in this case for some time. On 10 February 2012 an appeal in terms of Section 51 was successful in
this court when the sheriff remitted the matter to the Scottish Children's Reporter Administration to review their decision taken at a hearing on 9 December 2011. That decision was to reduce contact with the child's mother to a minimum of once per month. That decision replaced the previous decision by the panel that contact should be a minimum of contact once every two weeks. Sheriff Dickson issued a detailed interlocutor on 10 February 2012 and of particular relevance he indicated that he found it difficult to understand on what basis the panel had halved the amount of contact which was in place. He said that while there may have been valid reasons for this they were not contained in the conclusions or reasons for the decision and accordingly he remitted the matter back.
[2] Thereafter subsequent children's hearings were convened and continued on 30 March 2012, 22 June 2012 and 17 September 2012. A hearing which had been arranged for 6 August 2012 had to be cancelled due to a panel member being ill and a subsequent hearing was assigned for 29 October 2012. The appellant failed to attend the hearing on 29 October 2012 and her solicitors were also not present but they had written to SCRA on 26 October 2012 setting out their client's position. The sheriff was advised that unsuccessful attempts were made to reach the appellant by telephone and the hearing was delayed for fifteen minutes before proceeding on 29 October 2012.
[3] On that date the hearing decided that the child would have contact with his mother once per month for one hour. They also decided that he would have additional contact with his mother during the week of his birthday and that all contact between the child and his mother would be supervised by an appropriate adult. The decision of the Children's Hearing was in the following terms:-
"After very lengthy discussion BB's Supervision Requirement was continued with a variation for the following reasons;" Grounds of referral are of a serious nature and BB needs the protection and guidance that a Supervision Requirement provides. BB is not able to return to the care of his mother as she is not able to give him the care and protection he requires. She is not able to prioritise his needs over hers meaning that BB could not be cared for on a voluntary basis. BB is well looked after by his Aunt who provides him with a safe, stable and nurturing environment. - AA (the appellant) supports this placement. CC (his Aunt) informed the hearing that BB enjoys nursery and is meeting his developmental milestones, she stated he does not mention his birth mother or contact but talks about his Aunt and Sister.
Contact was discussed at length and the representations of AA's solicitor were discussed too. Contact was made for AA for once per month for one hour and is to be supervised. Additional contact between BB and AA during his birthday week was also agreed...Panel members shared AA's concerns about contact not proceeding on occasion. The report from Linda George, Safeguarder...gave the same recommendation as the Social Work Department. The panel members felt there was no remit for another independent report from a Child Psychologist as the Safeguarder gave an independent view. Furthermore, the Social Work Department are capable of assessing contact with children and families. Panel members also stated that they could not find a remit for additional report in this area at present. It was discussed that this level of contact is in the best interest of and is sufficient for him to have an understanding of his origins. It was felt that any further contact could confuse BB and would be to meet AA's needs rather than his. Contact with AA must be supervised to protect BB, especially in light of past events where AA has been dishonest about her relationship with XX. A condition of no contact with the father was made. His father has minimal
contact in his life and a significant risk is posed to BB if he was to have contact with his father...."
It is against that decision that an appeal was lodged in Airdrie Sheriff Court on 16 November 2012. That appeal was heard and refused by the sheriff on 11 January 2013. The sheriff was requested to issue a Stated Case for my opinion. To understand the sheriff's Stated Case, the relevant sections of which I set out in paragraph 5 hereof, it is necessary to record the questions posed in the application for the stated case. They were as follows:-
"(1). Did the sheriff err in law in refusing the appeal on 11 January 2013 when there was no basis necessitating contact being limited to once per month given contact had operated successfully at the rate of once per fortnight until 9 December 2011 and there had at no time been an adequate justification for reducing same?
(2). Did the sheriff err in law in effectively holding that contact at a higher rate than once per month would prevent a risk of harm to the child's health or morals? Did her decision breach the Appellants Art 8 ECHR rights to respect for private and family life by limiting contact when there was no proper justification for doing so?
(3). When determining the Appeal did the sheriff err in law in giving weight to factors such as the child's father's contact and his previous relationship with the appellant, which are fully addressed by the supervision requirement and have no bearing on the issue of supervised contact between the child and the appellant?
(4).The said hearing was a continuation of a remit hearing from a successful S51 appeal on10 February 2012 against a decision of the Children's Hearing on 9 December 2011 which brought about the reduction of the appellant's supervised contact from fortnightly to monthly. Did the sheriff err in law by approaching her task as to consider whether contact should remain at once per month, whereas the task for the sheriff should have been to consider whether the original reduction in contact in December 2011, was justified in all the circumstances?
(5). Did the sheriff err in law in holding the hearing's decision to be justified in all the circumstances when the only basis for keeping contact at once per month referred to in the written reasons for the Children's Hearing's decision was the child being confused by increased contact, given that any increase back to fortnightly contact would be managed by adults giving the child appropriate information and his main care was not in dispute?
(6). Did the sheriff err in law in attaching too much weight to the views of Social Worker and Safeguarder when reaching her decision, in circumstances where the Safeguarder and Social Worker have not properly addressed or justified why contact cannot operate once per fortnight?
(7). Did the sheriff err in law in attaching weight to the view of the Safeguarder that contact should be limited to once per month due to the risk of nonattendance by the Appellant, when there was no adequate basis from which to apprehend a risk of non-attendance by the appellant?
(8). There was a significant gap in monthly contact of approximately three months in the summer of 2012 caused by the carer failing to comply with the condition by not making the child available for contact with the appellant? Did the sheriff err in law in failing to take account of the risk of further significant gaps arising through no fault of the appellant, when contact operates only monthly?"
[4] In her Stated Case the sheriff sets out clearly why she refused to adjourn the hearing on 11 January 2013. All the comprehensive reports which had been prepared were available. In particular there were available the up to date documents which had been before the Hearing, namely letters from the appellants solicitors dated 3 August 2012, 10 September 2012 and 26 October 2012, social work reports dated 27 June 2012 and 19 October 2012, and reports from the safeguarder dated 15 May 2012 and 10 October 2012. It was important for the child that the matter should proceed. The sheriff carefully records the submissions made to her on behalf of the appellant, the Reporter, the Safeguarder and the Fostercarer.
[5] Sheriff's decision, in which she deals with the various grounds of appeal in the application for a stated case, is in the following terms:-
"The remit of such an appeal is indeed restricted. In order to be successful I would have to be persuaded by the appellant that the decision which the panel reached on 29 October 2012 was one which no reasonable hearing would have taken on the information that was properly before them and on that basis their decision was not justified in all the circumstances of the case.
Paragraph one of the application for a stated case suggests that contact had operated successfully at the rate of once per fortnight until 9 December 2011. That was not the information which the panel had accepted. The note of their decision says, "It was felt that any further contact (ie. more than once per month) could confuse BB and would be to meet AA's needs rather than his". Accordingly it appeared to me that...
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