Appeal By Stated Case In The Cause (1) Js And (3) Cs Against The Children's Reporter
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Drummond Young |
| Judgment Date | 06 July 2016 |
| Neutral Citation | [2016] CSIH 74 |
| Court | Court of Session |
| Date | 06 July 2016 |
| Published date | 30 September 2016 |
| Docket Number | XA45/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 74
XA45/16
XA54/16
Lord Menzies
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in the appeal
by
stated case in terms of section 163 of the Children’s Hearings (Scotland) Act 2011
in the cause
(1) JS and (2) CS
Appellants:
against
THE CHILDREN’S REPORTER
Respondents:
First appellant: Scott QC and Aitken; Drummond Miller LLP
Second appellant: Moynihan QC and A Macleod; Balfour + Manson LLP
First respondent: A Young QC and Parratt; Anderson Strathern LLP
Second respondent: Inglis; Digby Brown LLP
6 July 2016
The appeals
[1] This opinion relates to two appeals by way of stated case in terms of section 163 of the Children’s Hearings (Scotland) Act 2011. Each is at the instance of a parent of the children concerned. The stated cases are in identical terms. They raise broadly two issues: (1) what is the extent of the powers of a sheriff in his management of a hearing on an application by the Children’s Reporter to find grounds of referral established to restrict the leading of evidence; and (2) whether what was done by the sheriff in the case under appeal was an appropriate exercise of these powers.
[2] The appeals are at the instance, respectively, of JS and CS, and are against a determination of the sheriff on 4 December 2015 that grounds of referral in respect of three children, J, L and R were established. The appeals were originally to the sheriff principal (being lodged on 31 December 2015, the day before the appellate jurisdiction was transferred from the sheriff principal to the Sheriff Appeal Court in terms of section 109 of the Courts Reform (Scotland) Act 2014). However, on the motion of the appellants, the sheriff principal remitted the appeals to this court on the ground, inter alia, that in the absence of Scottish authority, it might be necessary to consider whether principles require to be established which a sheriff can apply in the exercise of his case management function in relation to hearings under section 101 of the 2011 Act. Five questions for the opinion of the court are included in the stated cases but parties were agreed that only two required to be addressed: (1) Did I err in law in refusing to allow the parents to call as witnesses the children [A, J2 and R]?; and (5) Did I err in law in finding the grounds of referral established?
[3] No point is taken as to the competency of the appeals.
[4] Before this court the appellant JS was represented by Mrs Janys Scott QC and Mr Aitken. The appellant CS was represented by Mr Moynihan QC and Mr Macleod. The Children’s Reporter was represented by Mr Andrew Young QC and Mr Parratt. The safeguarder was represented by Mr Inglis.
The referrals
[5] JS and CS are, respectively, the father and mother of J, who was born in October 2000; L, who was born in November 2004; and R who was born in April 2006. JS and CS are also the parents of other children who include A, who was born in November 2001 and J2, who was born in June 2003. J, A and J2 are boys. L and R are girls.
[6] In September and then again in October 2014 A, who had then been in foster care, made allegations of physical assaults by his father on him and on other of the children. Arrangements were accordingly made to interview A, J2, R, J and L in relation to their parents’ behaviour towards them and their siblings. A was interviewed on 16 October 2014, J2 on 22 October 2014, and R, J and L on 29 October 2014. These were what are described as Joint Investigative Interviews (“JIIs”). They were joint in the sense that a social worker and a police officer together conducted the interview with the child. No other person was present. In this case the same social worker and the same police officer conducted all the interviews. The interviews were video recorded and transcripts of the questions and answers were afterwards prepared. A JII is a recognised technique for eliciting information from children who may have been the subject of ill-treatment or abuse. It is mentioned for example in the Scottish Court Service Evidence and Procedure Review published on 13 March 2015. Its proper conduct is currently subject to the Guidance on Joint Investigative Interviews published by Scottish Government in December 2011.
[7] In the course of their JIIs A, J2 and R made allegations that they and their siblings had been hit by their father (albeit, as counsel were to emphasise, the allegations were inspecific and there were discrepancies as between the children’s accounts). J and L said that they had never seen anyone being hit.
[8] In the light of what had been said by the children A, J2 and R in the course of the JIIs the Children’s Reporter arranged a Children’s Hearing for J, L and R. The statements of the grounds prepared by the Reporter in terms of section 89 of the 2011 Act were essentially the same in respect of each of the three children. They stated that: (1) on at least one occasion JS had hit A, J2, R, L and another child on the bare bottom with the buckle of a leather belt, CS being present on these occasions and failing to intervene; (2) on at least one occasion JS had punched A, J2, R, L and another child to the head causing lumps to form, CS being present and failing to intervene; (3) on at least one occasion JS had deliberately tripped up J2 resulting in J2 scraping his arm; and (4) on at least one other occasion JS had punched J2 on the nose causing his nose to bleed. They stated that these incidents were offences under section 12 of the Children and Young Persons (Scotland) Act 1937 and, as such, specified in schedule 1 paragraph 2 to the Criminal Procedure (Scotland) Act 1995.
[9] In the statements of grounds it is narrated by the Reporter that whereas all the children usually reside with JS and CS, as at the date of the statements the children were accommodated outwith the family home. As at the date of the hearing of this appeal they remained so. A has been accommodated outwith the family home in foster care since January 2014.
[10] JS and CS did not accept the grounds of the referral. Accordingly, on 6 November 2014 the Reporter made an application to the sheriff in respect of each of the three children in terms of section 93(2)(a) and 94(2)(a) of the 2011 Act in order that the sheriff might determine whether the grounds of referral were established.
The procedure before the sheriff
[11] The sheriff court interlocutors provided to this court indicate that the referral first called before the sheriff on 28 November 2014. As at that date the safeguarder was in place.
[12] On 6 February 2015 the sheriff, having heard parties, allowed the Reporter to lodge a list of witnesses and an inventory of productions. Mr Young explained that these productions included recordings and transcripts of the JIIs. The Reporter made clear that it was intended to rely on the JIIs as statements by persons otherwise than in the course of the proof and admissible in place of the parole evidence of the children by virtue of section 2 of the Civil Evidence (Scotland) Act 1988. On 27 March 2015 the sheriff assigned a proof date.
[13] At a pre-proof hearing on 6 July 2015 the sheriff allowed an inventory of productions and list of witnesses on behalf of CS to be lodged. Also lodged, at the direction of the sheriff, was a minute for CS summarising the evidence it was proposed to lead on her behalf. The minute identified the witnesses as including A, J2, R, L and J. Against each witnesses’ name there was a brief summary of the evidence it was proposed to lead from that witness. The summaries relating to A, J2 and R refer to the allegations that they respectively made in the JIIs. In relation to each of A and J2 it is stated in the minute that:
“it will be put to this witness that these allegations are false and that he has previously made up other false allegations in relation to being assaulted.”
What are said to have been the previous false allegations are then specified. In relation to L it is stated: “it will be put to this witness that these allegations are false”. The pre-proof hearing was continued until 21 July 2015. According to Mr Young, on 21 July 2015 there was discussion about the possible use of special measures as provided for by the Vulnerable Witnesses (Scotland) Act 2004, with no suggestion being made on behalf of the appellants that they were not in a position to propose appropriate measures. However, as is indicated by the sheriff in a note appended to the stated case, the representative of the Reporter made a detailed submission to the effect that any evidence of A or J2 having made allegations of assaults upon them by other people was collateral to the issues raised in the referral and ought to be excluded for that reason. The Reporter moved the sheriff to refuse to allow CS to lead the evidence of A, J2 and R.
[14] The sheriff explains in his note that having heard parties’ submissions he wished an investigation to be made into the question of whether the children were willing to give evidence. He accordingly proposed that the Children’s Rights Officer speak to the children and see if she could ascertain their views. Although it proved more difficult than had been anticipated to agree the wording of the instructions to the Children’s Rights Officer, once this was done she was able to speak to J2 and R. She was unable to speak to A for reasons to do with concerns about his welfare. On 10 August 2015 a letter from the Children’s Rights Officer was put before the sheriff. She reported that J2 had said that he did not know whether he wished to give evidence and that he was very unhappy living in a residential school. R had said that she did not wish to talk to anybody else about what had happened. Having heard further submissions and in the light of the information provided by the Children’s Rights Officer, the sheriff excluded the evidence of A, J2 and R in exercise of power...
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