(first) Jm And (third) Sara Mathieson, Curator Ad Litem Against Locality Reporter, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord McGhie,Lord Malcolm |
| Judgment Date | 15 July 2015 |
| Neutral Citation | [2015] CSIH 58 |
| Court | Court of Session |
| Date | 15 July 2015 |
| Published date | 15 July 2015 |
| Docket Number | XA165/14 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 58
XA165/14
Lord Justice Clerk
Lord Malcolm
Lord McGhie
OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK
in the Appeal by Stated Case
under section 163 of the Children’s Hearings (Scotland) Act 2011
by
(FIRST) JM, and (THIRD) SARA MATHIESON, Curator ad litem
Appellants;
against
LOCALITY REPORTER, GLASGOW
Respondent:
Act: J Scott QC, Aitken; Drummond Miller LLP (First Appellant)
Act: Moir; Balfour & Manson LLP (Third Appellant)
Alt: Moynihan QC; Anderson Strathern LLP
15 July 2015
Introduction
[1] The main issue in this appeal is whether the sheriff was correct to find grounds for the referral of children established, by reason of “wilful” ill-treatment by their father, the first appellant, in terms of section 12 of the Children and Young Persons (Scotland) Act 1937. The sheriff held that it was sufficient that the first appellant’s actions, in lifting each of the infant twins in a particular manner with one hand, had been deliberate and that this was likely to, and in fact did, cause the children unnecessary suffering and injury. The sheriff followed Clark v HM Advocate 1968 JC 53, in which the High Court of Justiciary determined that the fact that a person did not intend to cause suffering or injury was irrelevant. The first appellant, founding upon dicta from the House of Lords in R v Sheppard [1981] AC 394, maintained that such intention, or alternatively recklessness, was required. The sheriff added that he would have reached the same decision had he followed R v Sheppard, since the first appellant had either been aware that his actions would cause unnecessary suffering or injury or did not care one way or the other whether they did.
[2] A related dilemma arises. When a person is convicted of having committed an offence under section 12 of the 1937 Act, the court may (Criminal Procedure (Scotland) Act 1995, s 48) refer the relevant child or children to the principal reporter. In so doing, it may “certify that the offence shall be a ground established for the purposes of the Children’s Hearings (Scotland) Act 2011”. No criminal conviction arises in this case. However, where there is a conviction based upon Clark, which the criminal courts must undoubtedly follow, the grounds may be certified as established. If there is no conviction, if the civil courts do not follow Clark, there is a distinct prospect that grounds, proceeding on identical proven facts, will be held not be established.
The grounds of referral
[3] On 1 August 2014, the sheriff at Glasgow determined that grounds under section 67(2) of the Children’s Hearings (Scotland) Act 2011 had been established in respect of the first appellant’s four children. They were established in relation to each of the twins because the twins were “(a) … likely to suffer unnecessarily … due to a lack of parental care” and “(b) a schedule 1 offence [had] been committed”. The schedule 1 offence was the wilful ill-treatment of the twins under section 12 of the 1937 Act. The establishment of the grounds in respect of the two older children were consequential upon the findings in respect of the twins (2011 Act, section 67(2)(d)).
[4] The twins, who were aged 1 year at the date of the proof, had sustained numerous fractures to their ribs. The boy had six and the girl had nine. The fractures were found to have been caused by inflicted injury “involving a significant degree of force or pressure”, caused by the first appellant lifting each of them using one hand; something which he did frequently. The sheriff found in fact that:
“(27) Inflicted injury, involving a significant degree of force or pressure, was the cause of the rib fractures to both [A] and [M].
(28) [The first appellant] frequently lifted [A] and [M] using only one hand.
(29) He lifted each of them in this manner intentionally and deliberately and in doing so wilfully ill-treated both [A] and [M]
(30) [The first appellant’s] lifting and carrying of [A] and [M] was likely to, and in fact caused them unnecessary suffering and injury to their health.
(31) The rib fractures to [A] and [M] were caused by [the first appellant] lifting each of them using one hand…
(36) In May 2014, [the first appellant] carried two of his children at the same time, using only one hand for each. He was challenged by a support worker about carrying his children in this way.”
[5] The case was remitted by the sheriff to the principal reporter to make arrangements for a Children’s Hearing to determine whether compulsory supervision requirements ought to be made. Both parents appealed to this court (2011 Act, s 163(1)(a)(i)), although the mother no longer insists in her appeal, apparently because of a lack of legal aid.
The questions of law and the evidence
[6] Twelve questions of law were formulated in the original stated case. Five are no longer insisted upon (viz. question 1 for the respondent, and questions 9 – 12 for the third appellant). The remaining questions, as reformulated of consent at the commencement of the hearing, were:
“(2) Did I err in law in holding that it is unnecessary to prove awareness of, or recklessness as to, the likelihood of causing suffering to a child in order to find established an offence of wilful ill-treatment under section 12 of the Children and Young Persons (Scotland) Act 1937?
(3) and (4) In the event that the answer to question 2 is in the affirmative, was I entitled on the facts found to infer that [the first appellant] was aware that his actions in lifting [A] and [M] were likely to cause [A] and [M] unnecessary suffering or injury to health or unaware due to his not caring whether this was the case, as opposed to his stupidity or ignorance?”
In addition, the court was asked whether, as a generality, the sheriff had been correct to find grounds based on lack of parental care established in terms of section 67(2)(a) of the 2011 Act (questions 5 and 6).
[7] The sheriff made certain observations on the rib fractures. He noted (at para [24]) that the first appellant had “accepted that these fractures had to be due to his handling of the children in the absence of any other explanation”. He described the first appellant’s practice of picking up either of the twins using only one hand as follows:
“[24] … He described picking up [A] from his bouncy chair. On this, [A] lay flat and was secured by straps round his waist, meeting at the front where they clipped together along with a strap travelling upwards from between [A’s] legs. [He] described holding [M] on his hip with one arm and with the other hand he would unclip the straps, put his hand under [A’s] right side, move his hand under [A’s] back to [A’s] left side under his left armpit and to the area of his ribs. He would then lift [A]. He agreed that the pressure placed on [A] had to be through the baby’s body from front to back. The child was then wedged between [his] body and his arm. When he was asked what was stopping [A] from falling, his reply was ‘suppression into the waistband’. He explained that this meant pressure onto the baby through the chest. It was his evidence that he frequently picked up both [A] and [M] by this method.
[25] He agreed that he had picked up [A] by this method on 4 June 2013 when Pamela Parker, the health visitor, was present.”
The sheriff found (para [28]) that the first appellant was in the habit of lifting each baby using one hand in the manner described.
[8] The sheriff accepted the evidence of Dr Sarah Hill (para [16]), consultant paediatrician, that: “inflicted injury” was the likely cause of the fractures; an infant is “more pliable” than an adult; and a “compressive force” was needed to fracture a rib. If the fractures had been caused by rough handling, it would have had to have been “very rough handling”. Dr Hill would not pick up an infant using only one hand for several reasons (para [18]). A child of the age of the twins had no control over his head and neck, which needed to be supported. It was not an appropriate way to handle an infant.
[9] The sheriff also accepted the evidence of Dr Wilkinson, consultant paediatric radiologist (para [20]), that the rib fractures were likely to have been inflicted and that “major forces were required”. Dr Wilkinson had never seen a rib fracture subsequently attributed to heavy handling. The handling required would need to be “totally outwith normal handling”. A lot of force would be required as a baby’s limbs are pliable (para [21]). It would require compression of the chest, causing the rib to bend to the point when it would break. The necessary compression would be by an adult “using full strength of hand to compress the chest”. It was possible, by lifting a child with one hand, to create so much pressure that the ribs of the child would break, although Dr Wilkinson considered that it was “highly unlikely” that the fractures had been caused in the manner described by the first appellant. The most likely cause of the fractures was trauma inflicted by an adult in two or more episodes.
[10] In the light of the evidence of Drs Hill and Wilkinson, a statement of the health visitor, and the evidence of the first appellant, the sheriff was satisfied “that the cause of the fractures was the way in which [the first appellant] picked up [A] and [M]” (para [30]). The sheriff concluded (para [50]) that the twins were likely to suffer unnecessarily or their health and development likely to be seriously impaired due to the lack of parental care. He took into account the evidence of the first appellant that it was still his practice to carry two children using one hand for each, although he had been challenged by a support worker about this.
[11] On the issue of wilful ill-treatment, the sheriff followed Clark v HM Advocate (supra). “Wilfully” meant that it was the act which had to be deliberate and intentional, as opposed to accidental or inadvertent. There was no requirement to...
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