Locality Reporter v KR
| Jurisdiction | Scotland |
| Judge | Sheriff Principal DCW Pyle,Sheriff AL MacFadyen,Sheriff N McFadyen |
| Judgment Date | 19 November 2018 |
| Court | Sheriff Appeal Court |
| Date | 19 November 2018 |
| Docket Number | No 5 |
[2018] SAC (Civ) 30
Sheriff Principal DCW Pyle, Sheriff AL MacFadyen and Sheriff N McFadyen
Advocate (HM) v Smith or Thom (1876) 3 Coup 332
H v Lees 1993 JC 238; 1994 SLT 908; 1993 SCCR 900
JM v Brechin [2015] CSIH 58; 2016 SC 98; 2015 SLT 543; 2016 SCLR 308; 2015 Fam LR 81
Kerr v HM Advocate 1986 SCCR 91
M v Kennedy 1993 SLT 431; 1991 SCLR 898
Peebles v MacPhail 1990 SLT 245; 1989 SCCR 410
Children and young persons — Children's hearing — Grounds of referral — Referral to children's hearing on ground that a sch 1 offence had been committed in respect of a child — Summary sheriff finding that ground of referral established on one of two bases advanced by reporter — Whether competent for reporter to appeal against refusal to find ground established on the other basis advanced — Children's Hearings (Scotland) Act 2011 (asp 1), sec 67(2)(b)
Children and young persons — Children's hearing — Grounds of referral — Referral to children's hearing on ground that a sch 1 offence had been committed in respect of a child — Summary sheriff finding that respondent struck child on the head with her hand — Whether summary sheriff erred in holding that ground of referral not established on basis of that finding — Children and Young Persons (Scotland) Act 1937 (1 Edw 8 & 1 Geo 6 cap 37), sec 12 — Children's Hearings (Scotland) Act 2011 (asp 1), sec 67(2)(b)
The locality reporter made an application to the sheriff at Stirling to establish certain grounds of referral. After proof the summary sheriff found that the grounds of referral were not made out in respect of an allegation of an offence under sec 12 of the Children and Young Persons (Scotland) Act 1937. The appellant appealed to the Sheriff Appeal Court by way of stated case under sec 163 of the Children's Hearings (Scotland) Act 2011.
Sections 66 and 69 of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) provide, inter alia, that where the principal reporter considers that a ground set out in sec 67 applies in relation to a child, and that it is necessary for a compulsory supervision requirement to be made, the principal reporter must arrange a children's hearing. The grounds set out in sec 67 include that “a schedule 1 offence has been committed in resepect of the child” (sec 67(2)(b)). The sch 1 offences include an offence under sec 12 of the Children and Young Persons (Scotland) Act 1937. Section 90 provides, inter alia, that at such a hearing each relevant person must be asked whether they accept each sec 67 ground specified in the statement of grounds, and each of the supporting facts in relation to any accepted ground (sec 90(1), (1A)). Where a relevant person accepts a ground but not all of the supporting facts, the hearing might treat the ground itself as having not been accepted (sec 90(1B)). Section 93 provides for the determination by the sheriff of grounds of referral that are not accepted. Section 163 provides, inter alia, “(1) A person … may appeal … against– (a) a determination by the sheriff of– (i) an application to determine whether a section 67 ground … is established”.
Section 12(1) of the Children and Young Persons (Scotland) Act 1937 (1 Edw 8 & 1 Geo 6 cap 37) (‘the 1937 Act’) provides, inter alia, “If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person, willfully ill-treats, neglects, abandons, or exposes him, or causes or procures him to be ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence”.
The principal reporter sought to establish several grounds of referral in respect of a four-year-old girl. Referral was sought, inter alia, on the ground that an offence under sec 12(1) of the 1937 Act had been committed. The statement of supporting facts specified two matters in support of that ground, one of which was that the mother had struck the child on the face with her open hand, the other of which was that the child's home was cluttered, unhygienic and unsafe. After proof, the summary sheriff held that the mother had struck the child on the side of her head but declined to hold that the ground of referral was established as a result of that conduct, where there was no evidence that the child had suffered from the blow. Accordingly he deleted that fact from the statement of supporting facts. However, that same ground was established with respect to the state of the child's home.
The principal reporter appealed to the Sheriff Appeal Court and argued that, in the light of the findings in fact made, the summary sheriff erred in holding that the ground of referral was not established also in respect of the child being struck by the mother.
The mother challenged the competency of the appeal on the basis that the appeal was incompetent because all that could be brought under a competent appeal was whether a sec 67 ground had been established, and not whether the supporting facts had been established. The mother also contended that the appeal ought not to be engaged in adjustment of the supporting facts, and that the appeal was academic.
Held that: (1) the right to appeal under sec 163 of the 2011 Act was an appeal against the determination by the sheriff of both the grounds of referral and the supporting facts (paras 15–17); (2) the appeal court was entitled to consider whether the sheriff erred in law by deleting facts from the supporting statement upon which a ground of referral could have been established (para 17); (3) as the children's hearing could not take account of the supporting facts concerning the child being struck standing the sheriff's decision, the appeal against that aspect of the decision was not academic (paras 18, 19); (4) simply because the child did not demonstrate any suffering from being struck did not mean that there was no likelihood of suffering and the sheriff ought to have been persuaded there was such a likelihood given the nature of the blow, the movement of the child's head from being struck, and the shocked reaction of a bystander (para 27); and appeal allowed.
JM v Brechin 2016 SC 98 distinguished.
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal DCW Pyle, Sheriff AL MacFadyen and Sheriff N McFadyen, for a hearing, on 20 September 2018.
At advising, on 19 November 2018, the opinion of the Court was delivered by Sheriff AL MacFadyen—
Opinion of the Court—
[1] This is an appeal by stated case from a decision of the summary sheriff after proof in respect of a disputed statement of grounds of referral to a children's hearing.
[2] The appeal raises two issues: first, as a matter of principle, the circumstances in which parties, in this case the reporter and the safeguarder, can appeal a sheriff's decision not to find as established one of the supporting facts to a ground of referral; secondly, on the facts whether the summary sheriff was entitled not to find the facts as established.
[3] In the original statement of grounds the reporter set out three grounds.
[4] Ground 1 was that in terms of sec 67(2)(b) of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) the child S, who is now four years of age, was likely to suffer unnecessarily or her health or development was likely to be seriously impaired, due to lack of parental care. In support of that ground the reporter stated that S's mother, KR, and S's father, RL, were unwilling or unable to provide consistent social, emotional and physical care of S which had had a detrimental impact upon her. Examples were given of lack of safety or hygiene in the family home, a failure to provide S with consistent routines, boundaries, appropriate stimulation or appropriate supervision and a lack of appropriate food in the family home. Before the summary sheriff, the parents intimated that this ground was not opposed, which allowed him to find it to be established.
[5] We shall return to ground 2. Ground 3 was that in terms of sec 67(2)(c) of the 2011 Act S had, or was likely to have had, a close connection with a person who had committed a sch 1 offence. In support of that ground the reporter stated that in January 2005 KR had assaulted her daughter, C, then aged three, by pulling her forcibly along the ground by her arm. This, said the reporter, demonstrated an offence against C in that KR had wilfully ill-treated her in a manner likely to cause her unnecessary suffering or injury to health, being an offence mentioned in sch 1(2) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), namely sec 12 of the Children and Young Persons (Scotland) Act 1937 (1 Edw 8 & 1 Geo 6 cap 37) (‘the 1937 Act’). Before the summary sheriff, the parents intimated that this ground was not opposed, which allowed him to find it to be established.
[6] Ground 2 was that in terms of sec 67(2)(b) of the 2011 Act a sch 1 offence had been committed in respect of S. In support of that ground the reporter relied on two supporting facts: first, that on 7 November 2017 in a pharmacy shop KR struck S to the head, which said the reporter demonstrated an offence against S on the same statutory basis as for ground 3; secondly, that on 8 November 2017 the family home was found to be cluttered, unhygienic and unsafe. Various examples of that were set out, all of which said the reporter demonstrated an offence against S on the same statutory basis as ground 3. Before the summary sheriff, the parents intimated that they accepted the second fact. KR did not however accept the first fact. RL's position was that he had no view...
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