A.m. Against Elizabeth Templeton, Locality Reporter Manager
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lady Dorrian,Lady Clark Of Calton |
| Neutral Citation | [2015] CSIH 56 |
| Court | Court of Session |
| Docket Number | XA12/15 |
| Published date | 08 July 2015 |
| Date | 08 July 2015 |
| Year | 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 56
XA12/15
Lady Dorrian
Lady Clark of Calton
Lord McGhie
OPINION OF LADY DORRIAN
in the stated case
by
Malcolm Garden, Esq, Sheriff of Grampian Highlands and Islands at Aberdeen
for the opinion of the Court of Session
in the appeal under section 51(11)(b) of the Children (Scotland) Act 1995
by
AM
Appellant;
against
ELIZABETH TEMPLETON, LOCALITY REPORTER MANAGER
Respondent:
Act: Party
Alt: C Dickson, Solicitor Advocate; Anderson Strathern LLP
8 July 2015
[1] I agree that this appeal is without merit, for the reasons given by Lady Clark of Calton and Lord McGhie.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 56
XA12/15
Lady Dorrian
Lady Clark of Calton
Lord McGhie
OPINION OF LADY CLARK OF CALTON
in the stated case
by
Malcolm Garden, Esq, Sheriff of Grampian Highlands and Islands at Aberdeen
for the opinion of the Court of Session
in the appeal under section 51(11)(b) of the Children (Scotland) Act 1995
by
AM
Appellant;
against
ELIZABETH TEMPLETON, LOCALITY REPORTER MANAGER
Respondent:
Act: Party
Alt: C Dickson, Solicitor Advocate; Anderson Strathern LLP
8 July 2015
Summary
[2] The appellant, AM, is the father of HB (born 28 August 2007) and JB (born 27 April 2006). The mother of the children is TB. On 7 September 2006, JB was made the subject of a supervision requirement requiring her to reside in foster care. On 12 October 2009 HB was made the subject of a supervision requirement requiring him to reside with his mother TB.
[3] There has been a long history of social work assessment of said parents and said children and decisions by the Children’s Hearing. The most recent decision of the Children’s Hearing is dated 15 July 2014. As at that date, as a result of earlier decision making neither child resided with their parents. Both children as a result of a supervision requirement imposed by the Children’s Hearing resided with LB.
[4] On 15 July 2014, the Children’s Hearing having considered the circumstances of both children made the following decisions and gave the following reasons which I have summarised. Decision 2: the panel felt the supervision requirement was still needed for the protection and care of the children, the placement with “LB” is going very well and the children are happy and thriving. Rehabilitation has been tried on three previous occasions and has been unsuccessful, all parties were in agreement that this is the best placement for the children at this time, both children have said they are happy where they are at the moment although JB said she would like to live with mum and dad again. The childrens’ views were taken into account when making our decisions. Both children are having respite care with [...]. There are no concerns with this, the children enjoy it and there were no issues raised with this. Due to ongoing issues with timekeeping contact will be set at once a month, monthly contacts have gone well in June and July but these are still very early days. There is a condition that the children will not be taken to the contact centre unless the contact centre have informed “LB” that the parents are there at least 45 minutes early. This is due to large issues with timekeeping for mum and dad, contact has been cancelled due to mum and dad being late or not attending, this causes the children to be upset, and in JB’s words “it’s very distressing”. It takes in excess of 40 minutes to drive to the contact centre from ... so 45 minutes was thought to be acceptable. This is to be supervised to ensure contact is meaningful and benefiting the children, also to ensure mum and dad are well presented and not under the influence of substances.
[5] The result of the decision of the Children’s Hearing was that the residence supervision requirement which provided that the children reside with LB, with respite care with RN and PN, was continued. The only condition which was varied was the contact condition. The variation stated that contact with the parents shall be once per month
“and such contact should be supervised by a representative of the social work department and the child shall be brought from (the residence address) for contact when his/her parents are present at the contact centre, 45 minutes prior to contact taking place.
The decision of the sheriff
[6] There have been many proceedings in this case. It is essential to focus on the issues which are properly before this court in this appeal.
[7] Following the decision of the Children’s Hearing on 15 July 2014, the appellant appealed to the sheriff under and in terms of section 51 of the Children (Scotland) Act 1995 (“the 1995 Act”). Under section 51, the sheriff has very wide discretionary powers which include the hearing of evidence from or on behalf of the parties in relation to the decision, examining the Principal Reporter, and the authors of any reports or statements. The sheriff may also call for any further report which may assist him in the appeal. The sheriff is plainly given the task of fact finding, if the appeal requires such fact finding. But not all appeals involve this. It depends on the particular appeal.
[8] It was agreed by the parties in the appeal before the sheriff that submissions in writing should be lodged and that the appeal would proceed without either party leading evidence. The sheriff has provided a copy of the lengthy written submissions made by the parties which I have considered. It is plain from the stated case that the sheriff also considered all the submissions. The sheriff found certain facts undisputed relating to the dates of birth of the children, the supervision orders and the childrens’ place of residence admitted or proved. He also found:
“(7) That the supervision requirements for each child had been regularly reviewed and continued and
(8) That most recently, each supervision requirement was reviewed and continued by the Children’s Hearing on 15 July 2014 which had the decisions against which the appellant appeals”
The sheriff found in fact and in law
“(1) That there was no procedural irregularity in the conduct of the hearing of 15 July 2014
(2) That the Children’s Hearing made no error in law in coming to their decisions on 15 July 2014
(3) That there was no element of unfairness in the conduct of the hearing on 15 July 2014
(4) That the decisions of the Children’s Hearing on 15 July 2014 should be confirmed.”
[9] In his note, the sheriff records that the written submissions of the appellant lacked specific complaint by the appellant about the conduct of the hearing on 15 July 2014 and that the main thrust of his submissions appeared to be an attack on the alleged non‑compliance of the Children’s Hearing system with the European Convention on Human Rights (ECHR). The sheriff also records in paragraph 12 that:
“I endeavoured on numerous occasions to elicit from (AM) the basis of his appeal. I was unable to do so as he clearly wished to argue the issue of the compliance of the system [that is whether the Children’s Hearing system is compliant with the European Convention on Human Rights]. It was not suggested that there had been any procedural irregularity (other than the ECHR point) nor that the hearing had failed to take into account any relevant factors or had taken into account irrelevant factors. I formed the view that it could not be said that the decision of the hearing was not justified in all the circumstances of the case and refused the appeal.”
[10] The sheriff issued his stated case and fixed a hearing on adjustment. The appellant did not attend that hearing. The sheriff did take account of the written note of proposed adjustments by the appellant, most of which he declined to accept on the basis that they were already adequately covered by the stated case or the adjustments were inaccurate or irrelevant.
[11] The proposed adjustments by the appellant invited the sheriff to include the following questions:
“i. Did the proceedings at the children’s hearing on 15 July 2014 constitute a lawful review of the supervision requirement in accordance with the statutory provisions, the ECHR and the judgments of higher courts.
ii. Did the proceedings before the sheriff on 15 September 2014 constitute a lawful hearing of the appeal in accordance with the statutory provisions, the ECHR and the judgments of higher courts.
iii. Is the evidence sufficient to justify the children’s continued accommodation.
iv. Was the sheriff entitled to hold that the decision of the 15 July 2014 children’s hearing was justified in all the circumstances of each case and to confirm the decision of the children’s hearing.
v. Are the current and previous interferences in the family’s lives compatible with articles 6, 8, 13 and 14 of the ECHR.
vi. Does the sheriff’s reservation recorded at paragraph 13 of TB & AM v The Authority Reporter 2007 and the use of the children’s previous accommodations as a reason for their current accommodation mean that the court must examine the undetermined issues from appeals against these previous accommodations.
vii. If the answer to question vi is in the affirmative, were the children’s previous accommodations justified in all the circumstances of the case.
viii. Was the sheriff justified in refusing to admit any of the recording and transcript of 15 July 2014.
ix. Did the private discussion of the case by the panel constitute an irregularity in the conduct of the case.
x. Did the supervision requirements lapse on 02 May 2014.”
Questions 1-8 of this list had been the questions posed by the appellant in his original application for a stated case.
[12] The questions identified for the sheriff for the opinion of this court are as follows:
“1. Was I, in all the circumstances of each case, entitled to confirm the decision of the Children’s Hearing?
2. Was I entitled to refuse to receive in evidence the Appellant’s clandestine...
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