A.s. V. Paul Mulvanney Authority Reporter In Appeal By Stated Case In Terms Of S51(11) Of The Childrens Cotland Act 1995 In Respect Of The Child C.s.
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi M. Stephen |
| Court | Sheriff Court |
| Date | 12 April 2012 |
| Docket Number | B174/11 |
| Published date | 15 May 2012 |
| SHERIFFDOM OF LOTHIAN AND BORDERS Case Number: B174/11 | |
| Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN in appeal by A. S. Appellant against paul mulvanNey, authority reporter Respondent in appeal by Stated Case In terms of s. 51(11) of the Children's (Scotland) Act 1995 in respect of the child C.S. __________________________ |
Act: Mrs Scott, QC and Mr McDonald Advocate
Alt: Dickson, Solicitor for the Authority Reporter
Alt: Miss Marshall, Safeguarder
EDINBURGH 12 April 2012
The Sheriff Principal, having resumed consideration of the appeal, answers questions 1, 2, 3, 4 and 9 in the negative, declines to answer the remaining questions of law as unnecessary; allows the appeal and remits the application to the sheriff with a direction to discharge the referral.
(signed) Mhairi M Stephen
This is an appeal by stated case from the decision of the sheriff sitting at Jedburgh to find grounds of referral established in respect of C.S. The principal reporter had referred the case of C.S. firstly to the Children's hearing and thereafter to the sheriff for a finding as to whether the grounds of referral are established. The grounds of referral were not accepted by A.S. and in respect that the child (D.O.B. 17 February 2010) was not capable of understanding the explanation of the grounds. The grounds of referral were in terms of section 52(2)(d) of the Children (Scotland) Act 1995 (hereinafter referred to as "the Act") namely that C.S. is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 has been committed.
In support of the grounds of referral the reporter states in four numbered paragraphs the facts.
Paragraph 1 is relatively formal in nature and states C.S.'s date of birth and his relationship with his mother A.S. and his usual residence.
Paragraph 2 states facts which are said to support an offence involving bodily injury to a child under the age of 17 years (assault or alternatively culpable and reckless conduct against C.S. or alternatively wilful ill treatment of C.S. contrary to section 12 of the Children and Young Persons (Scotland) Act 1937).
Paragraph 3 states facts which are said to support the offence of wilful neglect of C.S. being an offence under section 12 of the Children and Young Persons (Scotland) Act 1937.
Proof was led before the sheriff over 18 days from August 2010 to 31 January 2011. By interlocutor of 10 February 2011 the sheriff found the grounds of referral established in the following terms:-
"The sheriff, having heard evidence and submissions on behalf of the parties and the safeguarder in relation to the application dated 13 April 2010 by the principal reporter under section 65 of the Children (Scotland) Act 1995 to establish grounds of referral to the children's hearing of the child C S (D.O.B. 11 February 2010) finds as established as follows:
(1) C.S. was born on 11 February 2010. He is the son of A.S. (D.O.B. 7 July 1987). C.S. and A.S. usually live at an address in Hawick
(2) On or around 8 March 2010, at that address A.S. assaulted C.S. by throwing him, causing him to strike a surface and thereby sustaining a skull fracture.
(3) Between 8 March 2010 and 19 March 2010, A.S. wilfully neglected C.S. by failing to seek appropriate medical attention for him causing a skull fracture to remain undiagnosed.
(4) The offence narrated at paragraph 2 above is an offence involving the bodily injury to a child under the age of 17 years. The offence narrated at paragraph 3 is an offence under section 12 of the Children and Young Persons (Scotland) Act 1937. Both these offences are mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995; and remits the application to the Children's Reporter to make arrangements for disposal in terms of section 68(10)(a) of the Children (Scotland) Act 1995."
At the preliminary hearing held on 24 August 2011 and at the outset of the appeal hearing senior counsel for the appellant, Mrs Scott, QC confirmed that the appeal was restricted to questions of law 1, 2, 3, 4 and 9 of the stated case and the appellant did not propose to require the court to answer questions 5, 6, 7 and 8 at this stage.
Thus the questions of law to be answered are:-
(1) On the basis of the facts found, was I entitled to conclude that A.S. (a) committed the actus reus of an assault and (b) had the necessary mens rea to commit the crime of assault on C.S. and so find the grounds of referral established in that regard?
(2) If the answer to the first question is negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of wilful ill-treatment of C.S. contrary to section 12 of the Children and Young Persons Act 1937 and by failing to amend statement of facts 2 and 4 supporting the grounds of referral accordingly?
(3) If the answer to the first and second questions of law are negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of culpable and reckless conduct against C.S. and by failing to amend statement of fact 2 supporting the grounds of referral accordingly?
(4) On the basis of the facts found, was I entitled to conclude that between 8 March 2010 and 19 March 2010, A.S. wilfully neglected C.S. by failing to seek medical attention for him causing a skull fracture to remain undiagnosed and therefore find the grounds of referral established in that regard?
(9) Was I entitled to find each ground of referral satisfied on the whole facts of the case?
The appellant's motion was that I should answer these questions in the negative and remit the case to the sheriff with a direction that he should dismiss the application and discharge the referral to the Children's Hearing. Essentially the reporter's motion was to adhere to the sheriff's interlocutor of 10 February 2011 and that by answering the questions of law in the affirmative. Mr Dickson had a number of alternative motions in the event that I was not with him on the first and second questions and sought to argue that even if I considered the answer to questions 1 and 2 to be negative then there was still sufficient facts proved to answer questions 3, 4 and 9 in the affirmative and to refuse the appeal.
I heard submissions from the appellant and respondent over two days in Jedburgh (18 and 19 January 2012). The safeguarder Miss Marshall adopted the submissions of the reporter in respect of both his primary motion and the alternative motions.
I very much welcome the co-operation of the parties in agreeing the relevant authorities and to Mr Dickson for collating and numbering the joint bundle of authorities to which I shall refer. This has been of much assistance.
Statutory Background
The statutory framework to these proceedings may be found in Part 2 of the Act in particular chapters 2 and 3. Part 2 deals with the protection and welfare of children by public authorities and chapters 2 and 3 of this part of the Act deal with children's hearings and the protection and supervision of children requiring compulsory measures of supervision.
This appeal proceeds under section 51(11) of the Act. Section 51(14) requires me to remit the case to the sheriff for disposal once the appeal has been decided.
The sheriff heard the proof on the reporter's application under section 65 of the Act. Section 65 deals with referrals to and proceedings at children's hearings. The principal reporter comes under a duty to refer to the children's hearing, for consideration and determination on the merits, the case of any child in respect of whom he (the principal reporter) is satisfied that -
(a) compulsory measures of supervision are necessary
and
(b) at least one of the grounds specified in section 52(2) of the Act is established.
Section 52(1) states:-
"The question of whether compulsory measures of supervision are necessary in respect of a child arises if at least one of the conditions mentioned in subsection (2) below is satisfied with respect to him."
The conditions referred to are then listed in subsection 2 and include such matters as failing to attend school regularly without reasonable excuse; that the child is likely to be suffering unnecessarily or be impaired seriously in his health or development due to a lack of parental care; is beyond the control of any relevant person or is falling into bad associations or is exposed to moral danger. The list continues on to include the condition which forms the ground of this referral and indeed, separately, the condition which involves a child committing an offence.
The condition relied upon by the principal reporter in this case is section 52(2)(d) -
that C.S. is a child in respect of whom any of the offences mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed.
That is the condition upon which the reporter relies. The reporter does not rely on section 52(2)(c) namely the condition that the child is likely (i) to suffer unnecessarily; or (ii) to be impaired seriously in his health or development, due to a lack of parental care.
Standing the ground of referral (section 52(2)(d)) it is proper to have regard to the Act of Sederunt (Child Care and Maintenance Rules) 1997/291 Rule 3.50 which states:-
3.50 Power of sheriff in making findings as to offences
Where in a ground of referral it is alleged that an offence has been committed by or against any child, the sheriff may find that any other offence established by the facts has been committed.
APPELLANT'S SUBMISSIONS
The appellant's submissions were helpfully committed to a written note of argument which is comprehensive and refers to the tabulated authorities in the joint bundle of authorities for both parties.
The appellant's legal propositions in support of her appeal relate to the common law offences of assault and culpable and reckless conduct [2.2 of note of argument] and separately in...
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