Jb Db And Jwdwb V. The Authority Reporter For Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Mackay of Drumadoon,Lord Hardie |
| Neutral Citation | [2011] CSIH 39 |
| Court | Court of Session |
| Published date | 22 June 2011 |
| Year | 2011 |
| Date | 22 June 2011 |
| Docket Number | XA122/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Hardie Lord Mackay of Drumadoon Lord Abernethy | [2011] CSIH 39 XA122/10 OPINION OF THE COURT delivered by LORD HARDIE in the Stated Case in the cause (1) JB, (2) DB, (3) JWDWB Appellants; against THE AUTHORITY REPORTER FOR EDINBURGH Respondent: _______ |
Alt: Dowdalls; Brodies LLP (for the respondent)
For the Safeguarder: Forrest; Aitken Family Law Solicitors
22 June 2011
Introduction
[1] JWDWB ("Johnny"), the third named appellant, who was born on 23 March 1998, was referred on 3 September 2008 to a Children's Hearing on the grounds referred to in paragraphs (b) and (f) of section 52(2) of the Children (Scotland) Act 1995 ("the Act"), that is, that he was falling into bad associations or was exposed to moral danger, and that he was, or was likely to become, a member of the same household as a person who had committed any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995. The fourth offence listed in that Schedule is any offence involving the use of lewd, indecent or libidinous practices or behaviour towards a child under the age of 17 years, and that was the offence relied upon in this case by the respondent.
[2] Johnny's father and mother, the first and second named appellants, did not accept the grounds of referral and the matter proceeded to proof in Edinburgh Sheriff Court. The procedure in the sheriff court, as outlined by Miss Guinnane, counsel for the first named appellant, was that a five day proof had been fixed for dates in February 2009, but it was apparent that the proof would not be completed within that timescale. The sheriff originally allocated to this case was not available if the hearing extended beyond the five days allocated to it. Accordingly the hearing was adjourned until 27 April 2009 when the proof commenced. The first and second appellants were each separately represented in the sheriff court by junior counsel, who also appeared at the hearing before this court. The respondent was represented in the sheriff court by a member of staff in the respondent's office. Unfortunately in the course of the hearing the respondent's representative became ill and despite adjournment to enable her to recover, she was unable to conclude the case and another representative from the respondent's office replaced her. In the course of the proof Johnny became a party in the case. Prior to that stage his interests had been protected at the proof by a safeguarder, who continued to act in that capacity after Johnny was separately represented. The proof was not heard continuously, but the evidence and submissions lasted several weeks. Having commenced on 27 April 2009, the evidence was not concluded until 11 December 2009. On 8 January 2010 the sheriff heard oral submissions from the representatives of the parties, who had also lodged written submissions in advance of or on that date. The sheriff continued the case until 12 February 2010 for the purpose of giving his decision, which was to the effect that the ground referred to in section 52(2)(b) of the Act had not been established, but the ground referred to in section 52(2)(f) of the Act had been established.
Hearing before the sheriff
[3] In the case stated for the opinion of this court the sheriff reproduces from his note dated 12 February 2010 a well drafted and useful summary of the case and the hearing before him. In paragraph 7 the sheriff narrates that Johnny was born on 23 March 1998 and is the child of JB and DB. He refers to the two grounds of referral quoted above and continues:
"[8] At the heart of this case are another two children, A and SA, respectively a girl born on 11 July 2001 and a boy born on 7 December 2002. They are the children of SW, D's sister, and TA, SW's former husband. In other words they are Johnny's cousins and the niece and nephew of JB and DB. Another relative who features in the case is IB, J's uncle.
[9] Between April 2006 and September 2006 A and S lived with JB and DB, and Johnny, in the Bs' home. IB was a frequent visitor to the home. The reporter's broad contention is that during this period JB and DB, along with IB and a number of unidentified adults, sexually abused A and S.
[10] Since they were removed from the Bs' home in September 2006, both A and S have frequently said that the Bs' and others sexually abused them. The essence of the Bs' respective cases, and also Johnny's case, (see the following paragraph), is that what the children said cannot be accepted as credible and reliable. A substantial number of contentions have been advanced, both in support of the argument that it has not been proved that the children have been sexually abused at all and the esto argument that if they have been sexually abused, it has not been proved that the Bs and others associated with them carried out that abuse.
[11] A proof extending over a number of weeks commenced before me at the end of April 2009. The evidence concluded on 11 December 2009. On 8 January 2010 I heard submissions from the parties. Written submissions had been lodged by them, and accordingly oral submissions, which incorporated reference to the written submissions, were completed within the course of 8 January. I thereafter continued the case to ... [12 February 2010] for the purpose of giving my decision. Evidence for the authority reporter was originally led by a reporter named Lesley Stansfield. Unfortunately she suffered ill health and after instances when individual days and latterly weeks were discharged, the case for the reporter was taken over by another reporter, Anne-Marie Cobban. DB was represented throughout by Mr MacFarlane, advocate, and JB was represented by Ms Guinnane, advocate. Maureen McGowan was appointed safeguarder to Johnny, and she participated in the proof, initially largely appearing personally and latterly always represented by a solicitor, Mr Johnstone. During the course of the proof, Johnny became a party to the proceedings. He did not attend court but was represented by Mr Maguire, solicitor. It was plain that DB and those representing her had had a hand in Mr Maguire being instructed by Johnny - this was apparent from what Mr Maguire himself said about the circumstances of his engagement, not merely from ex parte information from the reporter about statements said to have been made by DB - but I have no reason to doubt that Mr Maguire considered himself properly instructed by Johnny and that he carried out Johnny's instructions. No one suggested that there was anything wrong in Johnny both having a safeguarder and being represented by a solicitor, either by way of competency or otherwise, and in this case it appeared to me appropriate that Ms McGowan continued in office. Ms McGowan had first hand knowledge of the earlier stages of the proceedings, and in particular had heard the evidence led in the proof's initial weeks. More important than that, while both Mr Maguire and Ms McGowan might be said to be representing Johnny's interests, in Mr Maguire's case, that was from the point of view of carrying out his instructions, whereas Ms McGowan was more concerned with Johnny's welfare. There were points where their submissions differed. Johnny was taken into care in 2008, and during the currency of the case I heard and granted a number of applications seeking warrant to further detain him in terms of section 67 of the Children (Scotland) Act 1995. Mr Maguire opposed these applications; Ms McGowan supported them. Most fundamentally, of course, Mr Maguire submitted that the grounds of referral had not been established, whereas on behalf of Ms McGowan a more nuanced position was advanced in which it was suggested that I could hold the grounds of referral to be established were I to prefer certain evidence.
[12] The reporter led a total of eight witnesses: Fiona Currie, a social worker from the social work unit at the Royal Hospital for Sick Children; Detective Constable Grant Paterson of Lothian and Borders Police; Tracey Hamburgh, also a social worker based at the Royal Hospital for Sick Children; Joyce Holden, present carer of S and A, along with her husband; Dr Jacqueline Mok, a consultant paediatrician; Susie Reade, an occupational therapist and mental health practitioner; Dana Deegan, a social worker; and Jennifer ('Jenny') Munro, a consultant clinical psychologist.
[13] In addition to giving evidence herself, DB led a total of three witnesses: Dr (James) Bryan Tully, a clinical and forensic psychologist;
PL, the mother of DB and SW, and the present partner of IB; and
Margaret Hunter, landlady and downstairs neighbour of the Bs in relation to the house they occupied at the material time. Dr Tully gave evidence twice. Although a witness for DB, because of his work commitments, he initially gave evidence during the reporter's case, interrupting the evidence of Tracey Hamburgh. He was recalled to give further evidence during DB's case, on the basis that Jennifer Munro's testimony had included matters not mentioned in her report.
[14] JB gave evidence on his own behalf.
[15] Johnny did not give evidence, but an affidavit on his behalf was produced.
[16] A Joint Minute of Admissions was also produced on the last day of evidence. A number of issues arise in relation to this Joint Minute and it is perhaps appropriate to deal with them now. The Joint Minute is in the following terms:
'Cobban, for the Reporter,
Maguire, for the child [Johnny]
Macfarlane, for the mother DB,
Guinnane¸ for the father JB and
Johnstone for the safeguarder Maureen McGowan, stated and hereby state to the court that for the purpose of these proceedings the following facts are admitted, without the necessity of evidence being led;
1. That the...
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