E C And Mrs M C V. Alan D Miller, Principal Reporter, Scottish Children's Reporter Administration
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Hamilton,Lord Carloway |
| Date | 26 June 2003 |
| Docket Number | XA101/01 |
| Court | Court of Session |
| Published date | 26 June 2003 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Hamilton Lord Carloway
| XA101/01 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL by STATED CASE under section 51(11) of the children (Scotland) Act 1995 by (FIRST) E C and (SECOND) MRS. M C Appellants; against ALAN D. MILLER, Principal Reporter, Scottish Children's Reporter Administration Respondent; _______ |
Act: Kelly; Balfour & Manson, SSC (Appellant, E C): O'Brien, Q.C., Sheldon; Drummond Miller WS (Appellant M C): McNair, Q.C.; Drummond Miller, WS (Appellant A C)
Alt: Dorrian, Q.C., Hughes; Biggart Baillie, WS (Reporter): Ennis; Simpson & Marwick, WS (Safeguarder)
26 June 2003
The background to the appeals:
[1]The first and second named appellants were married on 18 February 1983. They have three children, RC, who was born on 11 October 1983, AC, who was born on 16 October 1985 and CC, who was born on 18 December 1995. The family occupied residential premises in Dunoon.
[2]The respondent, hereinafter referred to as "the Reporter", having concluded that compulsory measures of supervision were necessary in respect of the three children, in terms of section 56(6) of the children (Scotland) Act 1995, arranged a children's hearing to which the cases of the three children were referred for consideration and determination. In the case of RC, the reasons stated for the referral were
" ... that the child is likely:
(i)to suffer unnecessarily; or
(ii)be impaired seriously in her health or development, due to a lack of
parental care being grounds for referral in terms of section 52(2)(c) of the children (Scotland) Act 1995
and that the child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed being grounds for referral in terms of section 52(2)(d) of the children (Scotland) Act 1995."
The grounds of referral were accepted by the child, but denied by both of her parents.
[3]In support of the referral in the case of RC certain statements of fact were made. Some of these facts were not controversial, while others were. The controversial facts, which were denied by both the appellants, were in the following terms:
" ... 3. that between the age of five and fifteen years the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature.
4(a)that in particular on or around New Year's Eve 1988 the child was
forced to engage in oral sex with her father within their then family home at [address], Dunoon, and on a regular basis thereafter until around the age of eight years.
(b)that in or around the summer of 1991, exact dates unknown to the
reporter, the child was forced to engage in anal intercourse with her father within the then family home at [another address], Dunoon, and on a regular basis thereafter until around the age of fifteen years.
(c)that between October 1988 and May 1999 the child was abused by
her father both orally and anally.
5.that during the course of the above incidents and at other times the child has been subjected to physical and verbal abuse from her father.
6.that on occasions during her childhood the child has suffered physical and verbal abuse from her mother and that in particular on or around 20 November 1994 the child was assaulted by her mother within [address], Dunoon, and verbally abused.
7.that during the course of her childhood the child has suffered significant emotional and mental damage as a result of her parents' behaviour towards her."
The referral relating to RC was dated 9 August 1999. On 17 August 1999, a children's hearing for Argyll & Bute Council considered this referral. In view of the position taken up by the appellants, it gave a direction to the Reporter under section 65(7) of the 1995 Act. One Jane MacLeod was appointed as safeguarder. Accordingly, in pursuance of the direction given to him, the Reporter made an application, dated 18 August 1999, to the sheriff to find whether the grounds for referral not accepted were established.
[4]The Reporter also arranged for the children's hearing to consider a referral in relation to AC, which was dated 10 August 1999. The grounds of referral in this case were:
" ... that the child is, or is likely to become, a member of the same household as a person who has committed an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995, being grounds for referral in terms of section 52(2)(f) of the children (Scotland) Act 1995 and
that the child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed being grounds for referral in terms of section 52(2)(d) of the children (Scotland) Act 1995."
In support of this referral certain statements of fact were made. Some of these were accepted by the appellants and the child, others were not. Those which were not accepted were in the following terms:
" ... 3. that between the age of five and fifteen years the child's sister RC was forced by her father to engage in abusive practices of a shamelessly indecent nature, (specified in grounds for referral at Statement-of-Fact 3 relating to RC dated 9 August 1999 and attached and incorporated herein).
4.that on occasions the child's sister RC has suffered physical and verbal abuse from her mother and that in particular on or around 20 November 1994 the child RC was ill-treated and assaulted by her mother within [address], Dunoon. ...
6.that when the child was around that age of three years he was dangled out of a window by his father at the then family home at [address], Dunoon to the child's danger and extreme alarm."
On 17 August 1999 this referral also came before the children's hearing for Argyll & Bute Council, which gave a direction to the Reporter under section 65(7) of the 1995 Act in respect of AC. Elspeth Black was appointed as safeguarder. Accordingly, the Reporter made an application, dated 18 August 1999, to the sheriff to find whether the grounds for referral not accepted by the child and the appellants were established.
[5]The Reporter also arranged for the children's hearing to consider a referral in relation to CC, also dated 10 August 1999. The ground of that referral was:
" ... that the child is, or is likely to become, a member of the same household as a person who has committed an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995, being grounds for referral in terms of section 52(2)(f) of the children (Scotland) Act 1995."
In support of that referral certain statements of fact were made. Some of these were accepted, but others were not. Those which were controversial were in the following terms:
" ... 3. that between the age of five and fifteen years the child's sister RC was forced by her father to engage in abusive practices of a shamelessly indecent nature (specified in grounds for referral at Statement-of-Fact 4 relating to RC dated 9 August 1999 and attached and incorporated herein).
4.that on occasions the child's sister RC has suffered physical and verbal abuse from her mother and that in particular on or around 20 November 1994 the child RC was ill-treated and assaulted by her mother within [address], Dunoon.
5.that as stated above CC normally resides in the same household (currently [address], Dunoon) as, inter alia, MC and EC."
Once again on 17 August 1999 the children's hearing for Argyll & Bute Council gave a direction to the Reporter under section 65(7) and (9) of the 1995 Act in respect of CC. Elspeth Black was appointed as safeguarder. Accordingly, the Reporter thereafter made an application to the sheriff, dated 18 August 1999, to find whether the grounds for referral not accepted by the appellants were established.
[6]Following the making of these three applications to the sheriff, proceedings commenced in Dunoon Sheriff Court with a view to the sheriff finding whether such grounds for referral as were not accepted were established. In view of the close connection between the three applications, they were conjoined. The hearings commenced on 22 November 1999 and ran over many days, which were interrupted by frequent adjournments. On 26 September 2000, the sheriff, in respect of RC, found both grounds established and in support of those grounds found the following statements of fact established: 1 and 2, which related to the personal particulars of the members of the family and to the fact that at all material times both parents had custody, charge and care of the child, accepted and established; 3, established but amended as follows to read:
"that between the age 5 and 15 years, exact dates unknown to the reporter, the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature within family homes at [address], Dunoon and at [address], Dunoon, which practices included both anal and oral abuse";
4, deleted; 5, 6 and 7, established. She then remitted the case to the Reporter to arrange a children's hearing to dispose of it.
[7]The sheriff in respect of AC found the first ground established and the second ground not established. She found the following statements of facts established: 1 and 2, which related to the personal particulars of the members of the family and to the fact that at all material times both parents had custody, charge and care of the child, accepted and established; 3, established but amended as follows to read:
"That between the age of 5 and 15 years (exact dates unknown to the reporter) the child's sister RC has been forced by her father to engage in abusive practices of a shamelessly indecent nature (specified in grounds for referral at statement-of-fact 3 relating to RC, dated 9 August 1999 and attached and incorporated herein);
4, established but under deletion of the...
To continue reading
Request your trial