B. v Kennedy
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1987 |
| Docket Number | No. 32. |
| Date | 05 June 1987 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Children and young personsChildren's hearingGrounds for referralApplication to sheriff for finding whether or not grounds establishedEvidenceSufficiencyStandard of proofSocial Work (Scotland) Act 1968 (cap. 49), secs. 32 (1) and (2) (b) and (d)1Sexual Offences (Scotland) Act 1976 (cap. 67), sec. 5.2
The respondent referred a 14 year old daughter of the appellant to a children's hearing on the following grounds: (1) that she was falling into bad associations or was being exposed to moral danger; or (2) that an offence mentioned in Sched. 1 of the Criminal Procedure (Scotland) Act 1975 had been committed in respect of her, viz.: (a) the use of lewd, indecent and libidinous practice or behaviour against her; and (b) she had suffered an offence involving bodily injury. At the children's hearing the child accepted the grounds for referral and the statement of facts in support thereof. The appellant mother refused to accept statements 2 and 3 which averred inter alia (1) that from the age of 9 on various numerous occasions the daughter had been subject to lewd, indecent and libidinous practice or behaviour in that she had had her private parts fondled; and (2) that on numerous occasions the daughter had been paid money and/or sweets in order to prevent her informing the appellant. The cause was thus referred to the sheriff for a finding whether the grounds for referral had been made out. The sheriff found the grounds to be established and the appellant mother thereafter appealed to the Court of Session and contended,inter alia, (1) that, although there was corroborated evidence relative to an incident in the bathroom between the daughter and the alleged perpetrator of the offences, the appellant's cohabitee, that did not constitute corroboration of a continuous course of conduct as averred in the statement of facts; and (2) that the sheriff ought to have applied a higher standard of proof than balance of probabilities.
Held (1) that, as the appellant had, albeit reluctantly, admitted in evidence that she was uneasy when her co-habitee was upstairs in the daughter's
bedroom too long and, if she thought that to be the case she would go upstairs, in the absence of any other explanation for her going upstairs, the sheriff had been entitled to infer that the appellant was uneasy about what the cohabitee was doing in the daughter's bedroom on these occasions; (2) that there was evidence of the daughter being distressed at school, evidence as to which, independent of the daughter, as in rape cases, might amount to corroboration of the explanation she had given to her assistant rector that the distress had been caused by the cohabitee's sexual interference; (3) that there was sufficient evidence in law for the sheriff to find it proved that this type of conduct continued over a period of time; and (4) that the proper standard of proof was that of the balance of probabilities; but (5) that (not followingH.M. Advocate v. Lee 1923 J.C. 1) "bodily injury" meant "physical injury" so that ground 2 (b) had not been established; and appealallowed in part.
Mrs B., the mother of a child S.B., born on 30th August 1972, appealed to the Court of Session against a finding of a sheriff that grounds for referral to a children's hearing had been established. The respondent was Frederick J. Kennedy, reporter to the children's panel for Strathclyde Region, who had referred the child to the hearing.
The grounds for referral were in the following terms:"(1) In terms of sec. 32 (2) (b) of the Social Work (Scotland) Act 1968, i.e. she is falling into bad associations or is being exposed to moral danger; or (2) In terms of sec. 32 (2) (d) of the above Act, i.e. an offence mentioned in Sched. 1 of the Criminal Procedure (Scotland) Act 1975 has been committed in respect of her, viz.: (a) in terms of sec. 5 of the Sexual Offences (Scotland) Act 1976 i.e. any person who uses towards a girl of or above the age of 12 years and under the age of 16 any lewd, indecent and libidinous practice or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law, whether the girl consented to such practice or behaviour or not, (b) she has suffered an offence involving bodily injury to a child under the age of 17 years."
The statement of facts were, inter alia, as follows:"(1) That the said S., hereinafter referred to as the child was born on 30th August 1972, as far as can be ascertained, and normally resides with Mrs B. (hereinafter referred to as the mother), the mother's cohabitee Mr L. K. (to whom...
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