Inthe Matter Of A Child Protection Order
| Jurisdiction | Scotland |
| Judge | Sheriff W. Holligan |
| Court | Sheriff Court |
| Date | 18 November 2014 |
| Published date | 09 December 2014 |
2014SCEDIN63
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
JUDGMENT
of
SHERIFF WILLIAM HOLLIGAN
in the matter of a
CHILD PROTECTION ORDER
____________
EDINBURGH 18 November 2014
[1] By their very nature child protection orders (“CPOs”) are matters requiring urgent attention. They do not call for written judgments. The present matter was no exception. One of the consequences is that there is no opportunity for written consideration of practice and procedure. The case before me involved a hearing in which the applicant was a social worker who appeared without legal representation. The mother who had only very recently given birth left hospital to attend court and was represented by a solicitor. In the present matter I granted an order in limited terms but said I would give written reasons relating principally to the procedure followed in this, and I have to say, other cases which has given rise to some concern.
[2] CPOs are now governed by Part 5 of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”). Additional procedural rules are to be found in Part IV of chapter 3 of the Child Care and Maintenance Rules 1997 (as amended) (“the 1997 rules”).
[3] For present purposes the key provisions of the 2011 Act are as follows:-
“37(1) A person may apply to the sheriff for a child protection order in respect of a child.
(2) A child protection order is an order doing one or more of the following- –
(a) requiring any person in a position to do so to produce the child to a specified person,
(b) authorising the removal of the child by the specified person to a place of safety and the keeping of the child in that place,
(c) authorising the prevention of the removal of the child from any place where the child is staying (whether or not the child is resident there),
(d) authorising the carrying out… of an assessment of –
(i) the child’s health or development, or
(ii) the way in which the child has been or is being treated or neglected.
(3) a child protection order may also include any other authorisation or requirement necessary to safeguard or promote the welfare of the child.
…
(5) An application for a child protection order must –
(a) identify the applicant,
(b) in so far as is practicable, identify the child in respect of whom the order is sought,
(c) state the grounds on which the application is made, and
(d) be accompanied by supporting evidence, whether documentary or otherwise, sufficient to enable the sheriff to determine the application.
39(1) This section applies where an application for a child protection order in respect of a child is made by a local authority or other person.
(2) The sheriff may make the order if the sheriff is satisfied that –
(a) there are reasonable grounds to believe that –
(i) the child has been or is being treated in such a way that the child is suffering or is likely to suffer significant harm,
(ii) the child has been or is being neglected and as a result of the neglect the child is suffering or is likely to suffer significant harm,
(iii) the child is likely to suffer significant harm if the child is not removed to and kept in a place of safety, or
(iv) the child is likely to suffer significant harm if the child does not remain in the place at which the child is staying (whether or not the child is resident there), and
(b) the order is necessary to protect the child from harm or from further harm”.
[4] These provisions replace the measures contained in sections 57-60 of the Children (Scotland) Act 1995 (“the 1995 Act”). The enactment of these provisions in turn replaced the relevant parts of the Social Work (Scotland) Act 1968 (“the 1968 Act”) and in particular section 37. The 1995 Act provisions were enacted in response to criticism of the 1968 Act which was found to be unsuitable in a number of material respects. Put broadly, the provisions of the 1995 Act considerably tightened up the basis upon which an application could be made and set out a procedure which enabled parents to challenge the making of the order.
[5] There are several matters which arose in the present case and have arisen in others:
- Representation;
- Adequacy of material relied upon;
- Preparation of the application;
- Intimation of applications to parents and their attendance at the first calling.
[6] As a general observation the 2011 Act is framed in more specific terms than its predecessor which, in turn, was more detailed than the 1968 Act. Section 37 sets out the nature of the order. Sections 38 and 39 provide who may apply for the order. Section 38 applies only to local authorities. Read short, the section deals with circumstances in which the local authority is being denied access to a child where enquires are thought to be required in order to safeguard the welfare of the child. The application before me was not brought pursuant to that section but to section 39 which, in my experience, is by far the more common.
[7] Section 39 refers to an application made by “a local authority or other person”. In this court social workers employed by some local authorities routinely appear seeking CPOs. Certain local authorities instruct solicitors from their respective legal departments to appear. As a simple matter of construction if a social worker appears in their capacity as an employee of the local authority it is the local authority which is seeking the order. In my opinion, the reference to “or other person” in section 39(1) is intended to extend the category of persons who may seek the order to persons other than employees or representatives of the local authority. The “other person” part recognises that there may be circumstances where, in an emergency, someone other than a local authority may seek an order. I do not think it was ever intended that the “other person” would be an employee of a local authority. However, even if I am wrong in my construction of section 39(1) there are sound reasons, based upon experience, which makes legal representation on the part of the local authority appropriate and desirable. It is hard to envisage a more important order a court can grant than one removing a child from its parents (when I refer to “parents” more often than not it is the mother alone who is involved in the process). By very definition they are anxious and difficult matters. Sometimes they involve newly born babies in hospital. Many other orders of manifestly less importance are routinely sought by a solicitor. I confess to some surprise that CPOs are often sought by those not legally trained in such matters. The law in this area is not straightforward. In 2013 there were two reported cases in which CPOs were the subject of judicial review: (J v The Lord Advocate; E v The Lord Advocate 2013 SLT 347 (hereinafter “the J and E case”); Glasgow City Council Petitioner 2013 SLT 917). Apart from any other consideration it is unfair to expect social workers to be able to deal with the legal complexities of CPOs. Again, drawing from my experience, complications often arise because of the inadequacy of the paperwork. Legal input is required. In my opinion, where an application is brought pursuant to section 39 of the 2011 Act by the local authority, the local authority requires to appear by its solicitor (or for that matter advocate). I realise that this will impose a burden upon the legal departments at a time of budgetary pressure but that is a consequence of the legislation and of the nature of the orders.
[8] The second issue which arose both in the case before me, and more generally, concerns the application and the material produced to support it. Section 37(5)(c) and (d) set out what should be contained within an application for a CPO. Rule 3.30 of the 1997 Rules prescribes the use of Forms 47 and 48. Form 47 is intended for use by local authorities whether pursuant to section 38(2) or 39(2); Form 48 is intended for use by an “other person” pursuant to section 39(2). For reasons I have explained above, in cases where they appear, social workers tend to use Form 48. Even allowing for a degree of haste and lack of legal training, it is my experience that applications are often poorly prepared. Part 2 of the Forms requires specification of the grounds for the application. That seems to me to be a specific reference to the terms either of section 38(2) or section 39(2) (I shall leave out of account applications brought pursuant to section 38). For reasons I shall later explain I do not consider it is sufficient to refer generally to the section. The application should make clear which paragraph or paragraphs are said to apply. The specification is essential because it is the application of section 39(2) which forms the basis of the court’s power to grant the order. The Forms require the production of supporting evidence. Again, as a matter of experience, the Forms are often accompanied with a collection of papers which often do not direct attention to what material is relied upon to support the engagement of section 39(2). In an ideal world affidavits would be useful or a concise summary of the material relied upon in the format required in an initial writ. However, I realise that time constraints may make that difficult. It is the responsibility of the party moving the application to direct attention of the sheriff to the relevant material. It should not be left to the sheriff to read the material in order to decide what may or may not be relevant. Another area of difficulty is Part 3 of the Forms which requires that the applicant specifies the orders and directions sought. As was the case in the matter before me, the applications often do not set out in relevant detail exactly what is being sought by way of orders and directions. Given the importance of the orders it is essential that they are prepared with care. Sections 40-42 relate to directions as to non-disclosure; contact; and parental responsibilities and rights. Sometimes directions are...
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