M.p. Against Elizabeth Templeton
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Drummond Young,Lord Clarke |
| Judgment Date | 15 July 2014 |
| Neutral Citation | [2014] CSIH 66 |
| Court | Court of Session |
| Date | 15 July 2014 |
| Published date | 15 July 2014 |
| Docket Number | XA26/14 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 66 |
| Lord Eassie Lord Drummond Young Lord Clarke
| XA26/14
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the cause
by
MP Appellant;
against
ELIZABETH TEMPLETON Respondent:
_______________
|
Act: Party
Alt: Dickson, Solicitor Advocate; Anderson Strathern LLP
15 July 2014
[1] The appellant has presented an appeal to the Court of Session under section 51(11)(b) of the Children (Scotland) Act 1995. The sheriff in Aberdeen issued an interlocutor and note on 5 September 2013, following upon an appeal under section 51(1) of the 1995 Act by the appellant against a decision taken by children’s hearing on May 2013. The sheriff refused the appeal to her as incompetent. The respondent is the Locality Reporter Manager of the Social Services Department of the City of Aberdeen Council who is responsible for the two children who were the subject of the proceedings at the children’s hearing.
[2] The proceedings relate to two children, J, born on 28 April 2006, and H, born on 28 August 2007. They are the children of TB and AM. The appellant is a friend of the family but is not related to them. The two children had been the subject of compulsory child protection measures owing to the inability of their parents to care for them adequately. The appeal to the sheriff arose out of a review hearing in respect of the two children that took place on 2 May 2013. The appellant accompanied the father, AM, to the hearing; the mother and children did not attend. The appellant claimed that he was a “relevant person” within the meaning of section 93(2)(b) of the Children (Scotland) Act 1995. The sheriff rejected that contention.
[3] Status as a “relevant person” is critical for two reasons. First, such status would give the appellant a right, and an obligation, to attend any children’s hearing in respect of the two children. Secondly, such status would entitle the appellant to challenge the decision of a children’s hearing through an appeal to the sheriff and, ultimately, to this court. Section 93(2)(b) of the 1995 Act defines the expression “relevant person”. It provides:
“’Relevant person’ in relation to a child means-
(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act;
(b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act;
(ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007, including a deemed permanence order having effect by virtue of [certain specified statutory provisions]); and
(c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child or who appears to have established family life with the child with which the decision of a children’s hearing may interfere”.
The words in bold type fall to be implied into the section by virtue of the decision of the UK Supreme Court in Principal Reporter v K, 2011 SC (UK SC) 91, where it was held that the statutory power in section 3(1) of the Human Rights Act 1998 should be invoked to bring the section into line with the requirements of the European Convention on Human Rights: see paragraph 70 of that decision.
[4] The sheriff held that the appellant was not a relevant person within the foregoing definition, and it is that part of the decision that is the primary focus of the present appeal. The result of the sheriff’s holding is that the appeal to her by the appellant was incompetent, and if that is correct the appeal to the court must also be incompetent. The respondent has presented a note of objection to the competency of the appeal, which argues in support of the sheriff’s finding that the appellant is not a “relevant person” in terms of section 93(2)(b) of the 1995 Act.
[5] An appeal to the Court of Session under section 51(11)(b) of the Children (Scotland) Act 1995 proceeds by way of stated case. In the stated case the sheriff has made findings in fact, which may be summarized as follows. The family lifestyle of TB, AM and the children was “chaotic and at times violent, alcohol and drugs being major factors”. Since June 2006 J and since April 2009 H have been the subject of compulsory child protection measures due to the inability of their parents to care for them adequately. Supervision requirements were made in respect of the children, and they were placed in the care of their great aunt, LBB. The supervision requirements were from time to time varied or continued or both, permitting the parents supervised contact with the children. On 12 June 2012 the children were returned to the care of TB but under the condition that they would have respite care with LBB. During 2013 concerns arose once again regarding the parenting skills of the parents, who had descended into drug taking and alcohol abuse as well as violence, and the impact that this had on the children. Consequently a children’s hearing was scheduled for 2 May 2013.
[6] The sheriff finds that the appellant is a long-standing friend of the family. At the children’s hearing on 2 May 2013 TB and the children failed to attend, and the appellant accompanied AM, the father, to the hearing. The Children’s Reporter, social workers, the head teacher of the children’s primary school and a consultant addiction psychiatrist were also present. In advance of the hearing the appellant had discussed his status with the Reporter and had asked that he be treated as a relevant person. The Reporter informed him that he was not, but stated that he could ask the hearing to treat him as such. The appellant asked the panel who conducted the hearing for permission to address them as a relevant person. The panel did not appear to have considered this request but allowed the appellant to remain at the hearing as a supporter for the father. At the hearing AM, the father, left several times, was disruptive and argumentative and disagreed with many of the reports before the panel.
[7] The sheriff then made a number of specific findings in fact that are pertinent to the present appeal:
“12) Having heard from [AM, the headmistress and the social workers], the panel unanimously decided that the children were in continuing need of compulsory measures of care and ordered that the supervision requirements be varied so that the children live with [LBB], with the parents being afforded supervised contact once a week.
13) The children currently live with [LBB].
14) The care for the children was provided, from time to time, by their parents and is currently provided by [LBB]. The appellant does not have, and never has had, shared care of the children.
15) The appellant is not related to the children. He is not, and has not been, a foster carer for the children.
16) The appellant does not have parental rights and responsibilities in relation to the children. He does not have contact with them by order of the court.
17) The appellant does not live with the children, or they with him. The appellant has his own home.
18) The children attend… Primary School. Occasionally, when the children were living with their parents, the appellant assisted the parents by taking the children to school, collecting them at the end of the school day and returning them to the care of their parents.
19) Occasionally the appellant took receipt of letters and reports from teachers at… Primary School and delivered them to the parents.
20) The appellant provided support for the parents in renting accommodation to them, and assistance to them in transporting them to important appointments and running errands for them.”
[8] On the basis of the foregoing findings of fact the sheriff found in fact and law that the appellant did not appear to be a person who ordinarily had charge of or control over the children; nor was he a person who appeared to have an established family life with the children with which the decision of the children’s hearing might interfere. Consequently he did not fall within the category of a relevant person within the meaning of section 93(2)(b) of the 1995 Act, as read in line with the decision in Principal Reporter v K, supra, and did not have a right to appeal to the sheriff.
[9] The sheriff then summarized the evidence that had been led before her. The deputy head teacher of the children’s school stated that their attendance was good, and that the appellant sometimes delivered the children to and collected them from school. On occasion hand-outs in relation to school events or letters for parents were passed to him on his giving an assurance that he would deliver them to the parents. The witness did not regard the appellant as a person with care of the children but rather as a helper for the parents. A social worker concerned with the children gave evidence that the appellant ran errands for TB, the children’s mother, when she was ill, and on several occasions took the children to and from school. He acted as a support for the father, AM. In her opinion the appellant was not a person of significance for any continuing care programme for the children, and had never been regarded as such by the children’s hearing. He did not at any time report to social workers or anyone else any concerns about the neglect of the children by the parents.
[10] The appellant gave evidence, describing his relationship with the parents, how he came to know TB and provide her with lodgings, her relationship with AM and the birth of the children. He spoke about the parents’ dependency on illegal drugs and alcohol and AM’s time in prison, and the ill-health of TB. He described the assistance and support which he provided for the family, and he gave evidence about the children’s hearing. He had prepared a written report for the...
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