C.w. V. Decisions Of A Children's Hearing Dated 9 May 2013 In Relationto The Children R And S
| Jurisdiction | Scotland |
| Judge | Sheriff Munro Bovey |
| Court | Sheriff Court |
| Date | 29 July 2013 |
| Published date | 13 August 2013 |
SHERIFFDOM OF GLASGOW & STRATHKELVIN AT GLASGOW
JUDGMENT
of
Sheriff MUNGO BOVEY QC
in APPEALS by
CW
appellant
Against decisions of a children's hearing
dated 9 May 2013 in relation to the children R and S
COURT REF NOs SWA1558/D and SWA1559/D
Act: Gordon, AJ Gordon & Co, Solicitors, Glasgow
Alt: Currie, Reporter, Glasgow North West Team
Glasgow, 29 July 2013
The Sheriff, having resumed consideration of the appeals, allows the appeals to the extent of finding that the appellant was entitled to be a relevant person at the children's hearing on 9 May 2013 and quoad ultra continues consideration of the appeals to the hearing already fixed for 7 August 2013.
A Introduction
- These are appeals by CW, the maternal grandfather of R and S who are 14 and 11 years old respectively. They arise out of a children's hearing on 9 May 2013 at which the children's residence and contact was regulated. At a hearing before me on 10 July 2013, Mr Gordon appeared for the appellant. Ms Currie appeared as the reporter.
- The issue before me was the preliminary one of competence which arose from the failure of the hearing to recognise the appellant as a relevant person for the purpose of section 93(2)(b) of the Children (Scotland) Act 1995[1].
B The facts
- Neither party sought to lead evidence before me and both were content that I should proceed on the facts as far as they were agreed. The documents lodged by the reporter demonstrate that the grounds of referral were established by the Sheriff on 28 May 2002. The children have been subject to a supervision requirement since then. The appellant has had contact for several years and has attended most of the children's hearings convened to consider the cases of the children.
- Although Ms Currie did not actively contest Mr Gordon's assertion that his client has had contact four times a year since 2010, she made the point that it has only been regulated by the hearing between June 2009 and January 2010 and since 9 May 2013.
- The basis on which the appellant has attended children's hearings over the years was said to be as a representative of the children's mother or at the invitation of the Convener of the hearing. This latter capacity was described by Ms Currie as being as a source of information.
- The children have not lived with their parents for several years. They have been with their current foster carers since 2008. There are no plans to reintegrate them into the natural family and, indeed, the conditions in the decision of 9 May 2013 provide that there is to be no contact with the parents. It provides for supervised contact with their maternal grandmother, who is the ex-wife of the appellant, four times a year. She has not been recognised as a relevant person. Her contact occurs separately from that of the appellant.
- The hearing's arrangements in relation to the appellant are that the children are to have supervised contact with him four times a year. This contact is to be monitored by social work services and supervised by them where deemed necessary.
C Submissions
- In presenting the appeal, Mr Gordon recognised that the competence of his appeal depended on success on the preliminary issue of "relevant person". He also accepted that his client did not fall within the terms of the subsection as printed. He was dependent on the extension to that section given by the Supreme Court in Principal Reporter v K[2] . In this regard, he referred to paragraphs 68 and 69 of that case:
"68 Mrs Scott's second solution was to insert the words "or appears to be a parent who has a de facto family tie with the child" into section 93(2)(b)(c). This comes much closer to addressing the incompatibility which this court has found. However, it may not go far enough. Persons other than parents may have article 8 procedural rights which require to be protected. This is not as dramatic an extension as it may seem. It is not every aspect of family life which attracts its procedural protection. The family succession rights which were in issue in Marckz v Belgium (1979) 2 EHRR 330, or more recently in Pla v Andorra (2006) 42 EHRR 25, are not affected by the children's hearing. The uncle and aunt in Jucius and Juciuviene v Finland (2009) 49 EHRR 3 would be covered by the existing wording of section 93(2)(a)(c), as it appears would be the grandparents in Bronda v Italy (2001) 33 EHRR 4. If all that may be at risk is informal contact with the wider family, then the participation of each parent and the child will in most cases afford adequate procedural protection for any article 8 rights which the child and other family members may have. But there are cases in which the child's hope of reintegration in her natural family depends upon maintaining the close relationship established with a grandparent or other family member. There would then be a procedural obligation to involve that relative in the decision-making process.
"69 The potential for violation could therefore be cured by inserting the words "or who appears to have established family life with the child with which the decision of a children's hearing may interfere". This goes very much with, rather than against, the grain of the legislation. The aim of the hearing is to enlist the family in trying to find solutions to the problems facing the child. This is simply widening the range of such people who have an established relationship with the child and thus something important to contribute to the...
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