Mm V. J Mcclafferty
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord Nimmo Smith,Lord Philip |
| Neutral Citation | [2007] CSIH 88 |
| Docket Number | XA191/06, |
| Date | 20 November 2007 |
| Court | Court of Session |
| Published date | 04 December 2007 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Nimmo Smith Lord Philip Lady Cosgrove | [2007] CSIH 88 XA191/06, XA192/06 and XA193/06 OPINION OF THE COURT delivered by Lord Nimmo Smith in STATED CASE From the Sheriffdom of Glasgow and Strathkelvin at Glasgow In the cause MM Appellant: against J McCLAFFERTY, Authority Reporter, Glasgow Respondent: _______ |
Act: Maria Clarke; Drummond Miller LLP (Appellant)
Alt: Di Rollo, Q.C.; Biggart Baillie (Respondent)
20 November 2007
[1] We have before us three Stated Cases brought by MM against the authority reporter for Glasgow. The appellant is the mother of the three children, who are identified by initials in the Stated Cases. All three are female. The eldest of them, KM, was born on 10 February 1991, the second, LM, was born on 6 January 1995 and the youngest, CM, was born on 10 June 2001. The respondent referred the cases of these three children to a Children's Hearing on the grounds specified in section 52(2)(c) and (d) of the Children (Scotland) Act 1995 ("the 1995 Act"). The referral in respect of the children KM and LM was also on the ground specified in section 52(2)(e) of the 1995 Act. The appellant did not accept the grounds of referral and the case was therefore sent to the sheriff at Glasgow for proof. In due course the sheriff heard proof and in conclusion, having set out various facts which she found admitted or proved, she decided that the grounds of referral in respect of each of the three children were established.
[2] The appellant has now appealed to this Court under section 51(11) of the 1995 Act, which provides that an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case. It should be noted in passing that a question was canvassed briefly before us today as to the scope that there might be for an examination of a transcript of the evidence led before the sheriff, given the limited statutory scope of such an appeal. In the event no reference was made to the notes of evidence, and we therefore reserve our opinion on that matter.
[3] Two other points also need to be made at the outset. In the first place, we were told that there has been a development in the situation which might put in question whether the appeal against the sheriff's decision raises any more a live issue. That is that there has been a recent further hearing before the Children's Panel at which the local authority have recommended that the supervision requirement which is the subject of this appeal should no longer remain in force. The Children's Panel have not yet reached a decision about that matter and the hearing has been continued until January 2008. It may well be, in light of what we have been told, that the recommendation will be accepted, but it would be premature to make any assumption about that. In any event, as her counsel submitted, the findings that were made which were adverse to the appellant would still in effect form part of her record unless we were to decide that the sheriff was wrong to have made them. So we are satisfied that there is a live issue for our decision.
[4] The second point that requires to be made is that in each of the three Stated Cases there are four questions, which (although the referral in respect of the child CM was not on the ground specified in section 52(2)(e) of the 1995 Act) are in identical terms, as follows:
"(1) Was I entitled to make Finding in Fact number 22?
(2) Upon the evidence was I entitled to find that the ground for referral under section 52(2)(c) of the Children (Scotland) Act 1995 was established?
(3) Upon the evidence was I entitled to find that the ground for referral under section 52(2)(d) of the Children (Scotland) Act 1995 was established?
(4) Upon the evidence was I entitled to find that the ground for referral under section 52(2)(e) of the Children (Scotland) Act 1995 was established?"
Before us today counsel for the respondent accepted that we should answer questions 3 and 4 in the negative and it was not therefore necessary for us to hear further...
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