Stated Case For The Opinion Of The Court Of Session By J.m. Against Eileen Taylor, Locality Reporter Manager
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Paton,Lord Wheatley |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] CSIH 62 |
| Date | 11 July 2014 |
| Published date | 11 July 2014 |
| Court | Court of Session |
| Docket Number | XA15/14 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 62 |
| Lady Paton Lord Brodie Lord Wheatley
| XA15/14
OPINION OF THE COURT
delivered by LORD BRODIE
in the Stated Case for the Opinion of the Court of Session
in the Appeal under section 163(1)(a)(iii) of the Children's Hearing (Scotland) Act 2011
by
JM Appellant;
against
EILEEN TAYLOR, Locality Reporter Manager Respondent:
_______________
|
Act: Gilchrist; Drummond Miller LLP
Alt: Moynihan QC; Anderson Strathern LLP
10 July 2014
Introduction
[1] The appellant is the mother of three daughters to whom this appeal relates: MH (born on 30 August 2002), CH (born on 26 January 2004) and TH (born on 21 February 2005) (“the children”). The children are subject to compulsory supervision orders, as defined by section 83 of the Children’s Hearing (Scotland) Act 2011. The orders were originally imposed by a children’s hearing as supervision requirements in terms of section 70 of the Children (Scotland) Act 1995. The children have resided with foster carers since April 2012. The foster carers with whom MH now resides are a different couple from the foster carers with whom both CH and TH reside.
[2] The father of the children is the appellant’s former partner, JO. The appellant no longer resides with JO.
[3] The appellant is also the mother of two sons: KH Junior (born on 29 May 2007) and JPH (born on 16 October 2011). They too are subject to supervision orders and reside with foster carers. The father of KH Junior and JPH is the appellant’s present partner, KH, with whom she resides.
[4] The children are subject to directions regulating contact with the appellant in terms of which the appellant has a minimum of two hours supervised contact with the children per fortnight. This appeal arises from the appellant’s wish to have a longer period of contact with the children, free from supervision. It relates to a decision of the children’s hearing dated 23 July 2013.
Orders made by children’s hearings in respect of the children prior to 23 July 2013
[5] The first of a number of orders in respect of the children was made by a children’s hearing on 23 October 2007 when it issued a warrant to bring them to a hearing. The children’s reporter had referred the cases of the children to a children’s hearing on the grounds that, in terms of section 52(2)(c) of the 1995 Act, they were likely to suffer unnecessarily or be impaired seriously in their health or development due to lack of parental care. Grounds of referral were held established by the sheriff at Glasgow on 21 December 2007. The orders made by children’s hearings thereafter in respect of the children (prior and subsequent to the commencement of the relevant provisions of the 2011 Act on 24 June 2013) include the following.
[6] On 18 April 2012 a children’s hearing made place of safety orders in respect of these children in terms of section 66 of the 1995 Act. The reasons given by the children’s hearing were that the appellant and her partner, KH, had refused the help previously supplied to them; that the children had extensive dental problems and lice and flea bites; that the children were stealing food at school because they were hungry and were far behind their peers educationally; that the conditions in the house occupied by the family were poor with hygiene being a major concern; and that the appellant and KH were unable to provide even basic care for the children. Subsequent to 18 April 2012 the children have been accommodated by the local authority in terms of its obligation in terms of section 25(1)(c) of the 1995 Act by being placed with foster carers.
[7] On 20 June 2012 a children’s hearing reviewed the supervision requirements in respect of the children in terms of section 73(8) of the 1995 Act. Having heard from, inter alia, the legal representatives of the appellant and KH, the children’s hearing continued the supervision requirement in terms of section 73(9)(e) with the conditions that the children resided with foster carers, that the appellant should have contact with the children for a minimum of three hours per fortnight and that KH should have no contact with the children.
[8] On 25 October 2012 a children’s hearing appointed a safeguarder in terms of section 41 of the 1995 Act. The safeguarder provided a report dated 20 December 2012 for consideration at a children’s hearing on 18 January 2013. He recommended that the children should continue to be subject to a supervision order, that they continue to reside with foster carers and that there be supervised contact between the children and the appellant for two hours once a fortnight. On 18 January 2013 the children’s hearing varied the supervision requirement by reducing the length of contact between the children and the appellant to two hours once per fortnight but to have no contact with KH, the reason given being that the children had clearly stated that they did not wish to see KH and that this was accepted by KH.
The decision of the children’s hearing on 23 July 2013
[9] By letter from her solicitors dated 28 May 2013, the appellant requested the Reporter to arrange a children’s hearing to review the decisions of the children’s hearing on 18 January 2013. This was an exercise of the right conferred on the appellant as a relevant person in relation to the children by section 132 of the 2011 Act to require a review of a compulsory supervision order on the termination of the period of three months beginning with the day on which the order was made. In the event of a review being required, the Principal Reporter (and accordingly the reporter to whom the Principal Reporter delegates his functions in terms of schedule 3 to the 2011 Act, hereinafter “the Reporter”) comes under a duty, in terms of section 137(2) to arrange a children’s hearing to review the compulsory supervision order. By virtue of sections 83(1) and (2)(g) and 138(3)(b) of the 2011 Act, on such a review the children’s hearing has power, inter alia, to vary directions regulating contact between a specified person and a child, such as had been imposed in respect of the appellant and the children by the children’s hearing on 18 January 2013.
[10] The appellant and the children attended the hearing on 23 July 2013, as did the appellant’s legal representative, all four foster carers (they having been deemed relevant persons at a pre-hearing panel on 9 July 2013), and the social worker who had coordinated the integrated assessment reports and action plans in relation to the children dated 30 May 2013 and who, as we would understand it, has principal responsibility for the family. As is required by rules 34 and 35 of the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013 (“the 2013 Rules”), all those attending the hearing and the members of the children’s hearing had been provided with, inter alia, copies of all decisions and reasons for decisions previously made by children’s hearings in respect of the children, the safeguarder’s report dated 20 December 2012, and the integrated assessment reports and action plans in relation to the children dated 30 May 2013.
[11] As we understand it, it was the contention of the appellant at the children’s hearing on 23 July 2013 that the measure directing contact should be varied by directing contact between the appellant and the children twice per week for a minimum of four hours per week unsupervised. It was not suggested that the children should not continue to be accommodated by the local authority with foster carers or that the supervision order be otherwise varied. It was not suggested that KH should have contact with the children. Equally, it was not suggested that the appellant should not continue to have contact with the children. The issues for the children’s hearing were therefore what should be the minimum extent of the contact and whether it should be subject to supervision. The hearing is timed as having begun at 1445 hours and as having ended at 1730 hours. Ms Gilchrist, who appeared on behalf of the appellant before us, advised that in the course of the discussion the children were asked and answered questions. They expressed their wish to see the appellant more often, with MH at least expressing the wish to see the appellant every day. The discussion also included the topic of the activities arranged for the children by the foster carers, including their attendance at swimming, dancing and karate classes. As we would understand it, there was the opportunity for the members who constituted the hearing to canvass all factual issues bearing on the appellant’s wish that the hours of contact with the children be extended and that the contact be unsupervised.
[12] The decisions made in respect of each of the children at the conclusion of the hearing were in similar terms. They are recorded in respect of each child as follows:
“Decision 1 Not to appoint a safeguarder
Decision 2 To continue the compulsory supervision order with variation
Decision 3 To deem Glasgow City Council as the implementation authority and make the compulsory supervision order for 1 year
Decision 4 To make the following measures on the CSO –
- [The child] shall reside with [the foster carers]
- [The child] shall have supervised contact with [the appellant] a minimum of once every two weeks along with her sisters …
- [The child] shall have contact a minimum of every 2 months for 2 hours with all her siblings.
- [The child] shall have no contact with [JO] and [KH]
- The place where [the child] resides shall not be disclosed to [the appellant] or [KH]”
[13] The stated reasons for the decisions common to the three children (there was an additional reason relating to MH in respect of her placement with different foster carers than those with whom CH and TH were placed) were recorded as follows:
“Decision 1 The hearing made this decision for the following reason:...
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