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Appellate Deference in Scottish Child Protection Cases

Document Cited authorities 14 Cited in Related
Vincent
DOI10.3366/elr.2016.0340
Author
Date01 May 2016
Published date01 May 2016
Pages149-177
INTRODUCTION

It is generally accepted that an appeal court is not normally the place for a full rehearing of the case argued at first instance. The limited role of the appeal court needs to be particularly remembered in child protection cases, which tend of their nature to call for assessments of credibility in matters of high disputation, and for close evaluations of statutory tests which, however precisely expressed, always demand judgments of the nicest character. Though society rightly condemns child neglect and abuse in the highest terms, courts asked to make orders for the protection of vulnerable children are in reality rarely faced with the choice between good and evil, or with a situation in which there can only be one acceptable outcome. Instead, determining the outcome of a child protection case usually calls for an assessment of a range of options, each of which may carry serious drawbacks, in an attempt to identify which option is the best – which all too often means the least worst – for the particular child in the circumstances that actually exist. In many, if not most, cases a different outcome from the one determined at first instance might well be as rational, reasonable and defensible as the decision actually made. For these reasons the long-recognised need for appeal courts to afford a certain degree of deference to the decisions made by the first instance tribunal is especially important in child protection cases. But identifying the precise level of deference that is appropriate in any individual case is a matter of some difficulty, not least because that level may differ depending upon the nature of the judgment being appealed against, and of the level of the court hearing the appeal.1

The most authoritative recent discussion of appellate deference in the context of child protection cases is to be found in the Supreme Court's decision in the English case of Re B (A Child).2 The substantive question in that case was whether a care order made under section 31(2) of the Children Act 1989 and designed to lead to the adoption of a three year old child should stand. The order having been made, the primary dispute before the Supreme Court (and the one central to the present discussion) concerned the boundaries beyond which it would be wrong for an appellate court to set aside the decision of the court of first instance. The purpose of this article is neither to analyse the facts of that English case (as complex as they are tragic) nor to explore the English legislation at issue there (very different from the Scottish legislation): a comparative analysis must await another day. Rather, utilising the structures suggested by the Supreme Court to the issue, this article aims to explore how appellate deference operates in Scotland. The principles derived from that exploration will then be applied to the special context of the children's hearing system in Scotland – where appeals do not go beyond the Court of Session – in order to determine whether that system's peculiarities demand any modification of the traditional approach.

 THE “THRESHOLD” ANALYSIS

The Supreme Court adopted an analysis which has long been called in England the “threshold approach”, whereby a court that is asked to make a public law order for the protection of a child must ask itself two questions: first, whether the statutory threshold for state intervention in the child's family life has been crossed and, secondly (but only if the first question is answered affirmatively), what order it would be appropriate to make. Crucially, there is no implication that, the threshold having been crossed, an order will always be made – for the making of the order, and its terms, is a matter separate from the question of the court's statutory authority to make the order.3 The terminology of “threshold” has not traditionally been used in Scotland to describe the statutory requirements in the child protection statutes, though the word is beginning to appear,4 and helpfully so. The threshold analysis tends to clarify the judicial process by highlighting the conceptually different types of decision that need to be made in the course of a child protection case. Nor is it any departure in substance (as opposed to terminology) from the traditional Scottish approach. Under the now replaced Adoption (Scotland) Act 1978, the Scottish courts applied to the issue of dispensation with parental consent to adoption what came to be called “the two-stage test” – was a ground for dispensation made out and, if so, ought dispensation be granted?5 This is another way of expressing the threshold analysis.6 Again without using the “threshold” terminology, the very structure of the children's hearing system in Scotland encapsulates the separation of the two questions, by requiring two different tribunals to provide the answers.7 The threshold question of whether there are grounds upon which the state can legitimately interfere in a child's upbringing falls exclusively to the sheriff, if the grounds upon which a child is referred to a children's hearing are challenged or not understood (i.e. if it is not accepted that the threshold has been crossed); the outcome question of whether, once the threshold is crossed, an order ought to be made, and if so on what terms, is a question to be answered at first instance by the children's hearing. The establishing of grounds never legally requires the hearing to make an order and it always retains the right to discharge the referral.8

So the “threshold” analysis fits the Scottish as readily as it does the English approach in child protection cases. The importance of Re B (A Child) is not that it legitimated this long-established terminology but that it affirmed the importance of recognising “the different intellectual exercise which is in play in each of these contexts because that will dictate the proper approach of the appellate court to a challenge about the correctness of a judge's decision”.9 Additionally, the Supreme Court emphasised that the judicial decision-making process has considerably more stages than would be implied by the terminology of a “two-stage test”. Lord Neuberger10 broke the threshold question itself down into three stages: the first instance tribunal is required (i) to make findings of fact, (ii) to identify the proper meaning of the statutory test, and (iii) to determine whether the facts meet the test. The outcome decision (described in Re B (A Child) as “the welfare decision”) becomes therefore the fourth question for the court (or, in Scotland, the children's hearing) once the threshold question has been answered affirmatively.11 An appeal may be taken against the first instance tribunal's decision on each of these four issues and the considerations justifying appellate deference differ at each stage.

 THE FOUR STAGE ANALYSIS Stage one: challenging findings in fact

First instance tribunals have long been assumed across the Common Law world to have unique advantages in making findings in fact that cannot be reproduced on appeal and which therefore require an appeal court to defer to such findings. In Clarke v Edinburgh and District Tramways Co,12 Lord Shaw of Dunfermline said this:

In my opinion, the duty of an appellate Court … is for each Judge of it to put to himself, as I now do in this case, the question, Am I – who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case – in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

The advantages adverted to in this dictum are specified more explicitly by Lord MacMillan in Thomas v Thomas,13 which is now the locus classicus for deference to the fact-finder, at least in Scotland:

The appellate Court has before it only the printed record of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusion, but it is not available to the appellate Court. So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial Judge, who has enjoyed the advantages not available to the appellate Court, becomes of paramount importance and ought not to be disturbed.

 In other words, appellate deference should be shown because the judge at first instance is quite simply in a better position than an appeal court to assess the credibility of witnesses who appear before him or her.14 The assumption upon which this approach is based, that the taking into account of demeanour and atmosphere is of genuine assistance in determining credibility, finds little support in psychological literature15 but it is a deep-rooted belief in our legal culture.16 There are, however, other and stronger reasons – based on pragmatism rather than principle – justifying appellate deference to first instance findings of fact. In Re B (A Child)17 Lord Neuberger said that the appellate deference traditionally shown to first instance findings of fact:

can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).

 For these reasons, Lord Neuberger concluded that...

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