Petition Of N J And E H V. The Lord Advocate And Others For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2013] CSOH 27 |
| Court | Court of Session |
| Published date | 19 February 2013 |
| Year | 2013 |
| Date | 19 February 2013 |
| Docket Number | P865/10 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 27 | |
| P865/10 P783/10 | OPINION OF LORD BRAILSFORD in the Petitions of (1) NJ and (2) EH Petitioners; against THE LORD ADVOCATE and OTHERS Respondents: for Judicial Review ________________ |
(1) Petitioner: Pirie; Drummond Miller LLP
Respondent: Ross; Scottish Government Legal Directorate
Interested Party: Poole; Renfrewshire Council; Lindsays
(2) Petitioner: Pirie; Drummond Miller LLP
Respondent: Ross; Scottish Government Legal Directorate
Interested Party: Springham; Glasgow City Council
19 February 2013
[1] These are two petitions for judicial review. Each petition arises following decisions by local authorities to seek Child Protection Orders ("CPOs") under section 57 of the Children (Scotland) Act 1995 ("the 1995 Act") immediately following the birth of children. In each petition the petitioners are the mothers of the child over whom a CPO was sought. In each petition the Lord Advocate is named as the respondent. The relevant local authorities, Renfrewshire Council in the petition at the instance of NJ and the City of Glasgow Council in the petition at the instance of EH have entered appearance and lodged answers. In each petition two decisions are challenged. First, a decision (the "first decision") by a sheriff in which he directed his clerk not to accept caveats which each petitioner had sought to lodge in the relevant sheriff court prior to anticipated application by the relevant local authority for a CPO. Second, decisions subsequently taken in each petition to make CPOs ("the second decision").
In each petition the petitioner seeks:
(a) declarator that the procedure under which the CPO was made in respect of the child was incompatible with the petitioner's rights under article 8 of the European Convention on Human Rights ("ECHR");
(b) declarator that the procedure under which the CPO was made in respect of the child was incompatible with the petitioner's rights under article 6 ECHR;
(c) declarator that (i) the first decision was unlawful in terms of section 6(1) of the Human Rights Act 1998 ("the HRA") because it was incompatible with the petitioner's rights under articles 6 and 8 ECHR, or, alternatively (ii) the second decision was unlawful in terms of section 6(1) of the HRA because it was incompatible with the petitioner's rights under article 6 and 8 ECHR.
[2] It is initially necessary to outline the factual background to these matters. Both petitioners were pregnant and due to give birth in the second half of July 2010. In the case of both petitioners, the relevant local authority had serious concerns that following birth, the child of each petitioner was likely to be impaired seriously in health or development due to lack of paternal care. These concerns were based upon information in the possession of each local authority relating to the social circumstances of each petitioner. In the case of NJ these concerns may be summarised as follows: NJ was 18 years old at the time of her anticipated delivery. She had a previous child on 10 March 2009. That child had returned home two days after birth in the care of NJ and her partner. One week later, due to lack of parental care, that child required to be taken into hospital and was thereafter removed to foster carers. Grounds of referral to the Children's Hearing were established at Paisley Sheriff Court on 6 August 2009. The child became the subject of a supervision order and continued to reside with foster carers. Prior to the birth of the second child, NJ and her partner were given the opportunity to work with the organisation "Family Matters" in relation to the needs of a new baby. They did not engage with this support and also failed to engage with the health visitor attached to their local GP surgery. A case conference involving the petitioner, the child's father, the petitioner's mother, social workers, a midwife, a health visitor and the police was held on 2 July 2010. The care of the child after birth was fully discussed at that meeting. At the conclusion of the meeting NJ was informed that the authority would seek either voluntarily, or by CPO, to take the child into care at birth.
[3] In the case of EH, the concern of the local authority may be summarised as follows. EH suffered from moderate learning disabilities, had worked as a prostitute, had been involved in using illegal drugs and had a history of homelessness. She gave birth to a child in 2004 who was, with her consent, removed into the care of her mother at birth. A parenting capacity assessment of EH was undertaken by the relevant social work department who at that time noted that she showed no real bond with the child, had no idea of the of the child's needs and needed constant supervision over parental care issues. The assessment concluded that she did not have the capacity to care for a child. EH gave birth to a second child in 2009. Midwives at the hospital where the child was born expressed serious concerns about EH's ability to care for the child. Six days after birth the child was placed on the Child Protection Register. The local authority considered that EH could never meet the needs of a child left in her care and that the risks to such a child would be overwhelming. In April 2010, some eleven months after the second child's birth, a Children's Hearing placed the child under a supervision requirement with a condition that the child reside with EH's mother. During her third pregnancy, with which the current proceedings are concerned, EH had been assaulted by the father of the child, a man with a history of violence and drug addiction. A "Pre-Birth Case Conference" was held by the relevant local authority social work child protection personnel on 21 June 2010. The meeting was attended by EH, the child's father, social workers, the police, a housing support worker, a community midwife and a clinical psychologist. The decision at the conclusion of that meeting was that a CPO would be sought following the birth of the child.
[4] As a result of these concerns in each case, officers of the local authority advised the petitioners at child protection case discussion meetings that it was their intention to apply to the sheriff for a CPO to authorise the removal of the child into their care after its birth. In the case of NJ the said decision was made on 2 July 2010 following which officers of Glasgow City Council prepared an application for a CPO to be used following the birth of NJ's child. In the case of EH, she was told by officers of Renfrewshire Council at a late stage in her pregnancy that it was their intention to apply for a CPO in respect of her child following its birth.
[5] Each petitioner thereafter sought to lodge caveats at their local sheriff courts. The intention of this action was to attempt to ensure that each petitioner would be given an opportunity to be legally represented and to make submissions before the granting of a CPO in respect of their newborn infants. In EH's case, an attempt was made to lodge a caveat on 15 July 2010. The sheriff heard submissions from her agents on that date and thereafter directed his clerk not to accept the caveat. EH subsequently gave birth to a son on 17 July 2010. In the case of NJ, she gave birth to a son on 19 July 2010. Attempts were made to lodge a caveat on her behalf on 20 July 2010. The sheriff heard submissions on that date from agents on behalf of NJ and thereafter directed his clerk not to accept the caveat tendered.
[6] In the case of EH, on 17 July 2010, the sheriff, on an ex parte motion at a hearing of which EH was given no notice and at which she was not represented, made a CPO in respect of her son. The CPO was implemented and her son removed from her care. In the case of NJ, on 20 July 2010, the sheriff, on an ex parte motion at a hearing of which NJ was given no notice and at which she was not represented, made a CPO in respect of her son. That CPO was implemented and NJ's son was removed from her care.
[7] In the foregoing circumstances these two petitions give rise to two separate questions. First, whether the caveats which each petitioner sought to lodge prior to the application being made by the local authority for a CPO should have been be honoured and that each petitioner should therefore have been entitled to the right to be represented and make submissions at the application for a CPO. Second, whether in the circumstances of each case it was appropriate to make a CPO.
[8] There was no dispute as to the relevant statutory background. In relation to CPOs the relevant legislation is to be found in Chapter 3 of Part 2 of the 1995 Act. Sections 57 relates to Child Protection Orders as follows:
"(1) Where the sheriff, on an application by any person, is satisfied that - (a) there are reasonable grounds to believe that a child -
(i) is being so treated (or neglected) that he is suffering significant harm: or
(ii) will suffer such harm if he is not removed to and kept in a place of safety, or if he does not remain in the place where is then being accommodated (whether or not he is resident there); and
(b) an order under this section is necessary to protect that child from such harm (or such further harm) he may make an order under this section ( to be known as a 'Child Protection Order')."
Section 57(4) provides:
"A Child Protection Order may, subject to such terms and conditions as the sheriff considers appropriate, do any one or more of the following -
(a) require any person in a position to do so to produce the child to the applicant;
(b) authorise the removal of the child by the applicant to a place of safety, and the keeping of the child at that place;
(c) authorise the prevention of the removal of the child from any place where he is being accommodated;
(d) provide that the location of any place of safety in which the child is being kept should not be disclosed to any person or class of person specified in...
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