S K V. Julie Paterson, Authority Reporter For East Renfrewshire
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Mackay of Drumadoon,Lord Clarke |
| Judgment Date | 02 October 2009 |
| Neutral Citation | [2009] CSIH 76 |
| Date | 02 October 2009 |
| Court | Court of Session |
| Published date | 02 October 2009 |
| Docket Number | XA25/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Kingarth Lord Clarke Lord Mackay of Drumadoon | [2009] CSIH 76 XA25/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in Reference from the Sheriff of North Strathclyde at Paisley of Devolution Issues raised in the Appeal under section 51 of the Children (Scotland) Act 1995 by S K Appellant against JULIE PATERSON, Authority Reporter for East Renfrewshire Respondent in respect of a decision of the Children's Panel for East Renfrewshire made on 6 February 2008 _______ |
Act: O'Neill, Q.C., Pirie; Drummond Miller for Patrick Campbell & Co, Glasgow
Alt: Dewar, Q.C.; Biggart Baillie LLP
Scottish Ministers, First Intervener: Wolffe, Q.C., Poole; Solicitor to Scottish Ministers
2 October 2009
Introduction
[1] The appellant, S K, was born on 19 May 1974. She is the mother of M M ("the Child"), who was born on 13 November 2006. As the mother of the Child, the appellant is a "relevant person", within the meaning of section 93(2)(b) of the 1995 Act, in respect of any proceedings before a children's hearing involving the Child before a children's hearing. The appellant has the rights to be present and to be represented at any such hearing.
[2] Within a few months of his birth, the Child was referred to the Children's Hearing for East Renfrewshire. Under the provisions of section 51 of the Children (Scotland) Act 1995 ("the 1995 Act") the appellant has appealed to the Sheriff at Paisley against a decision of the children's hearing made on 6 February 2008 in respect of the Child. The respondent in the appeal before the Sheriff, and before this court, is Julie Paterson, Authority Reporter for East Renfrewshire.
[3] During the course of the appeal before the Sheriff two devolution issues have been raised on behalf of the appellant. The Sheriff has referred these two devolution issues for determination by this Court, under and in terms of Paragraph 7 of Schedule 6 to the Scotland Act 1998. The appeal before the Sheriff has been sisted pending the determination of the issues.
[4] When a devolution minute was first lodged in the appeal process on behalf of the appellant, intimation was made to the Lord Advocate, who intervened in the process on behalf of the Scottish Ministers ("the first intervener"). The Lord Advocate has remained a party to the proceedings. Intimation was also made to the Advocate General for Scotland. Following a procedural hearing before the Sheriff on 18 September 2008 the Advocate General elected to play no further part in the proceedings.
[5] The Reference of the devolution issues to this Court was drafted by the appellant and subsequently revised by the respondent and the first intervener. The devolution issues which are the subject of the Reference are in the following terms:
1. Whether or not the absence of any provision permitting the appellant to receive state-funded legal representation before the children's hearing of 6 February 2008 constituted a breach of the appellant's Convention rights under Articles 6, 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)?; and
2. Whether the absence of any provision permitting the appellant to receive state-funded legal representation before any children's hearing constitutes a breach of the appellant's Convention rights under Articles 6, 8 and 14 of the ECHR?
[6] The appellant, the respondent and the first intervener were all represented during the hearing before this court. In advance of that hearing all three parties lodged written submissions, which proved to be of considerable assistance to the Court.
Background
[7] The appellant suffers from learning difficulties, with specific weakness in her working memory, poor memory for verbal information, and language, literacy skills and numeracy skills, equivalent to those of children under the age of 10 years. It is contended on the appellant's behalf that her learning difficulties will have a substantial and long-term adverse effect on her ability to carry out normal day to day activities and that she is a "disabled person" for the purposes of the Disability Discrimination Act 1995.
[8] On 20 December 2006 the Sheriff at Paisley made a Child Protection Order ("CPO") in respect of the Child. The CPO had been applied for by East Renfrewshire Council under Section 57(2) of the 1995 Act. The CPO authorised the removal of the Child to a place of safety and allowed the appellant to have supervised contact with the Child for periods of two hours on four occasions per week, as determined at the discretion of the social work department. Since 20 December 2006, the Child has resided with foster carers. Over the same period of time, the appellant's contact with the Child has been subject to regulation, initially by the Sheriff and subsequently by a children's hearing.
[9] On 5 January 2007 a children's hearing granted a place of safety warrant under section 66 of the 1995 Act in respect of the Child. That warrant was granted to the Chief Social Worker of East Renfrewshire Council. On 26 January 2007 and 16 February 2007, the warrant was renewed by a children's hearing.
[10] On 8 March 2007, the Sheriff at Paisley, on an application by the respondent, granted a warrant under section 67 of the 1995 Act, for the further detention of the Child in a place of safety. That warrant was continued by the Sheriff at a number of hearings, on the last occasion to 30 August 2007. The appellant was represented by a solicitor at each of those hearings before the Sheriff.
[11] On 2 August 2007, grounds of referral to the children's hearing in respect of the Child, in terms of section 52(2)(c) of the 1995 Act, were established during a hearing before the Sheriff at Paisley. Those grounds of referral proceeded on, amongst other facts, that the appellant has limited ability, without support, to provide the Child with all aspects of his care and that limitation in her ability would be likely to cause the Child to suffer unnecessarily or to be impaired in his health or development. The appellant was represented by a solicitor during the hearing before the Sheriff on 2 August 2007.
[12] Following the establishment of those grounds of referral, a supervision requirement under section 70 of the 1995 Act was made in respect of the Child, at a children's hearing on 27 August 2007. The supervision requirement required the Child to reside with foster carers. It also provided for supervised contact between the Child and the appellant for ten hours per week during two five hour sessions. The appellant attended the hearing on 27 August 2007 accompanied by two representatives, her father and a lay advocate. She was not represented by a lawyer at that hearing. The appellant did not appeal against the decision of the children's hearing on 27 August 2007.
[13] On 15 October 2007 a children's hearing continued the supervision requirement but varied the arrangements for contact, to provide that the Child would have supervised contact with the appellant during two five hour sessions per week and one period of weekend contact, and would also have contact with his father for a minimum of one afternoon per week. The appellant attended the hearing with two representatives, her father and a lay advocate. She was not represented by a lawyer at that hearing. The appellant did not appeal against the decision of the children's hearing on 15 October 2007.
[14] A further children's hearing was held on 6 February 2008. The appellant attended the hearing with two representatives, her father and a lay advocate. She was not represented by a lawyer at this hearing. At the start of the hearing the members of the children's panel, who constituted the children's hearing, spoke to the appellant in the presence of her father and lay advocate. The respondent was not present. This meeting took place at the request of the lay advocate, made on behalf of the appellant. Based on the discussion during this part of the hearing, the members of the children's panel understood the appellant was happy with the current level of contact.
[15] A letter dated 5 February 2008 from the appellant's solicitor was placed before the children's hearing on 6 February 2008. The letter requested that the hearing be adjourned to allow the appellant to seek state-funded legal representation. The children's hearing refused that application, noting in its reasons for deciding to do so -
"The basis for this was that Miss McCartney [the appellant's solicitor] thought that S's rights under [ECHR] were being breached as she was not entitled to legal aid before the hearing. She has written to the Scottish Government on this matter and is awaiting a response. She wished today's hearing could be continued until a response was received. The panel felt that there could be no time limit set on this and in the Child's best interests a decision had to be made today. SW agreed to request a review immediately should legal aid be granted."
The children's hearing on 6 February 2008 continued the supervision requirement but varied the condition of contact to read "[The Child] is to have supervised contact with his mother, S K, for a minimum of three days per week for 5 hours each."
[16] The appellant appealed the decision of the children's hearing dated 6 February 2008 to the Sheriff at Paisley, under section 51 of the 1995 Act. The appeal proceeds on two grounds. The first related to the revised measures prescribed by the children's hearing in terms of which the appellant would have contact with the Child. The second founded on the decision of the children's hearing to proceed with the hearing in the absence of the appellant having a legal representative, which it was contended breached the appellant's rights under Article 6 and Article 8 of the European Convention of Human Rights ("the Convention"). The respondent is resisting the appeal and has lodged answers.
[17] As...
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