JLM v Scottish Children's Reporter Administration
| Jurisdiction | Scotland |
| Judgment Date | 11 July 2019 |
| Neutral Citation | [2019] CSIH 37 |
| Docket Number | No 37 |
| Date | 11 July 2019 |
| Court | Court of Session (Inner House) |
[2019] CSIH 37
First Division
Sheriff Court
AM v Templeton [2015] CSIH 56; 2015 Fam LR 106; 2015 GWD 23-413
Al-Khawaja v UK (26766/05) [2011] ECHR 2127; (2012) 54 EHRR 23; [2012] 2 Costs LO 139; 32 BHRC 1; [2012] Crim LR 375
C v Kennedy 1987 SLT 737; 1987 SCLR 647
CF v MF [2017] CSIH 44; 2017 SLT 945; 2017 Fam LR 83
HDJS v HM Advocate [2018] HCJAC 14; 2018 SCCR 98; 2018 GWD 5-77
J (Children) (Care Proceedings: Threshold Criteria) (Re) [2013] UKSC 9; [2013] 1 AC 680; [2013] 2 WLR 649; [2013] 3 All ER 1; [2013] 1 FLR 1373; [2013] 2 FCR 149; The Times, 26 February 2013; [2013] Fam Law 375; 157 (8) SJLB 31
JM v Taylor [2014] CSIH 62; 2015 SC 71; 2015 SCLR 143; 2014 Fam LR 102
JS v Children's Reporter [2016] CSIH 74; 2017 SC 31; 2016 SLT 1235; 2017 SCLR 539; 2016 Fam LR 166
L v Finland [2000] ECHR 175; (2001) 31 EHRR 30; [2000] 2 FLR 118; [2000] 3 FCR 219; [2000] Fam Law 536
M v Authority Reporter 2014 SLT (Sh Ct) 57
Maclennan v HM Advocate [2015] HCJAC 128; 2016 JC 117; 2016 SLT 339; 2016 SCCR 101; 2016 SCL 202
NM v Children's Reporter [2017] SAC (Civ) 37; 2018 Fam LR 19; 2018 GWD 1-17
O v Rae 1993 SLT 570; 1992 SCLR 318
Osborn v Parole Board [2013] UKSC 61; [2014] NI 154; [2014] AC 1115; [2013] 3 WLR 1020; [2014] 1 All ER 369
SN v Sweden (34209/96) [2002] ECHR 546; (2004) 39 EHRR 13; [2002] Crim LR 831
Schatschaschwili v Germany (9154/10) [2015] ECHR 1113; (2016) 63 EHRR 680; 41 BHRC 474; [2017] Crim LR 140
Scottish Children's Reporter Administration v B Sh Ct, Sheriff Holligan, 16 February 2018, unreported
W v Schaffer 2001 SLT (Sh Ct) 86
West Lothian Council v B sub nom West Lothian Council v MB [2017] UKSC 15; 2017 SC (UKSC) 67; 2017 SLT 319; 2017 Fam LR 34
Yussouf v Solicitors Regulation Authority [2018] EWHC 211; [2018] Med LR 188; [2018] ACD 34
Norrie, KMcK, Children's Hearings in Scotland (2nd ed, W Green, Edinburgh, 2005), p 117
Scottish Courts Service, Evidence and Procedure Review Report (Scottish Courts Service, Edinburgh, March 2015), paras 2.1, 2.3, 2.6 (Online: https://scotcourts.gov.uk/docs/default-source/aboutscs/reports-and-data/reports-data/evidence-and-procedure-full-report---publication-version-pdf.pdf?sfvrsn=2 (12 August 2019))
Children and young persons — Children's hearings — Disputed allegation that mother was present when sexual offences were committed against her daughter — Whether children's hearing required to hear evidence when considering continuation or variation of compulsory supervision order
Children and young persons — Children's hearings — Appeal to sheriff — Disputed allegation that mother was present when sexual offences were committed against her daughter — Whether sheriff required to hear evidence when considering appeal against decision of children's hearing
Human rights — Children and young persons — Appeal to sheriff — Disputed allegation that appellant was present when sexual offences committed against her daughter — Whether admission of hearsay evidence of the allegations contravened Art 6 of the European Convention on Human Rights and Fundamental Freedoms — Children's Hearings (Scotland) Act 2011 (asp 1), sec 154 — European Convention on Human Rights and Fundamental Freedoms, Art 6
The children's reporter referred the appellant's children to the children's hearing. An interim compulsory supervision order was made. The appellant accepted the grounds of referral after she appealed to the sheriff. The children's hearing subsequently varied the CSO. The appellant appealed to the sheriff under sec 154 of the Children's Hearings (Scotland) Act 2011. The sheriff refused the appeal. The appellant appealed to the Court of Session by way of stated case under sec 163 of that Act.
The appellant's son and daughter were referred to the children's hearing after indecent images of children, including images of their daughter, were found on her husband's phone. An interim compulsory supervision order (‘CSO’) was made and the children placed with foster carers. The appellant's daughter revealed certain matters to a foster parent and a social worker suggestive of the appellant's presence when she had been abused by her father. Following a hearing at which the appellant denied any knowledge of her husband's offending, the children's hearing continued and varied the interim CSO. The appellant appealed to the sheriff.
The sheriff heard evidence, including hearsay evidence of the disclosures made by the appellant's daughter, who was not led in evidence. The appellant gave evidence denying the allegations. The sheriff held that on the balance of probabilities the appellant was present when the images were created. The sheriff refused the appeal. The appellant appealed to the Court of Session.
The appellant argued that it was a breach of Art 6 of the European Convention on Human Rights and Fundamental Freedoms for the children's hearing to have proceeded on the basis of unsubstantiated allegations. The children's hearing erred in determining the issue without hearing evidence. The sheriff erred by allowing hearsay evidence of the allegations to be led.
The respondent contended that the children's hearing required to consider the welfare of the children and based its decisions on all available information. It did not usually determine facts on the balance of probabilities. The sheriff erred in holding that the children's hearing proceeded solely on the basis that the allegations made by the appellant's daughter were true and in holding that he required to hear evidence in order to determine the appeal.
Held that: (1) the sheriff erred in holding that the children's hearing's decision that the allegations against the appellant were true was the decisive factor in the decision-making process, as their decision was detailed and went far beyond consideration of the appellant's conduct (paras 47–49); (2) once the grounds for referral were established or accepted, it was for the children's hearing to determine the nature of any compulsory supervision order based upon its view of what was necessary for the protection of the child, and only rarely would it be necessary for the children's hearing to listen to testimony, where it was essential to the making of their decision to resolve disputed facts (paras 50, 51); (3) in relation to contact, the sheriff was exercising a supervisory role and required to determine whether the decision of the children's hearing was justified, and there was no need to hear evidence as all the information necessary for the decision was available to the court in the written material supplemented by oral submission (paras 52–54); (4) hearsay evidence of what young children have reported should not be treated with caution simply because it was not repeated in open court, and the fairness of the proceedings was ensured without cross-examination of the daughter by the ability to cross-examine the witnesses who were called, the appellant's ability to give evidence on her own behalf, and the right to make submissions on whether the truth of the statements should be accepted (paras 54–61); (5) the sheriff did not err in holding that the decision of the children's hearing was justified (para 62); and appeal refused.
JS v Children's Reporter 2017 SC 31 distinguished and Al-Khawaja v UK(2012) 54 EHRR 23considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Drummond Young, for a hearing on the summar roll, on 7 and 8 May 2019.
At advising, on 11 July 2019, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] These are two appeals by stated case against the sheriff's refusal of appeals by a mother against children's hearing's decisions to continue and vary compulsory supervision orders (‘CSO’) which had the effect of reducing her level of contact with her daughter, T (aged eight years), and her son, C (aged seven years).
[2] There are six questions in the stated case, although a seventh, which queried whether the applicable legislation was compatible with Art 8 of the European Convention on Human Rights and Fundamental Freedoms, was proposed in an adjustment but not ultimately argued. The remaining questions address: the implications of founding upon evidence of statements admittedly made by T and C to one of their foster carers and their social worker (questions 1–3); the facts identified by the sheriff as forming the basis of the children's hearing decisions (question 4); whether, in reviewing a CSO, the hearing can only rely on facts which are either admitted or proved (question 5); and whether evidence ought to have been heard in the appeal to the sheriff (question 6).
[3] According to the report, which was compiled by the allocated social worker, namely Michelle Fair, the appellant and her husband, namely HS, had unsettled childhoods before they met in homeless accommodation in 2009. In 2010, the local special needs in pregnancy service raised concerns about the appellant when she was pregnant with T. Offers of support were made but, after T's birth, the couple's engagement with this support became ‘sporadic’. There were concerns over T's health needs (eg immunisation). On one occasion it was discovered that the family home was full of intoxicated young men and the couple were unable to explain where T was. Home visits highlighted poor conditions, with T's bedding being dirty and unhygienic. After C was born, the police contacted social services because both children were in the care of MK, whose brother EK was present. EK was a registered sex offender. Reports of domestic abuse were made, but not pursued. The couple separated in mid 2012. The appellant was thought to be associating with EK, but she denied this.
[4] A child protection report was compiled, partly because of the...
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