APPEAL BY CF AGAINST (FIRST) MF and GF; (SECOND) SCOTTISH REPORTER
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 44
XA9/17
Lady Paton
Lord Drummond Young
Lord Malcolm
OPINION OF LADY PATON
in the appeal
by
CF
Appellant
against
(FIRST) MF and GF; (SECOND) SCOTTISH REPORTER
Respondents
in an appeal by stated case under section 164 of the Children’s Hearings (Scotland) Act 2011 arising from an appeal under section 160 of the said Act by MF and GF against a decision of a Pre-Hearing Panel dated 1 September 2016
Appellant: Aitken; Clan Childlaw
First Respondents: Macpherson; Gillespie Macandrew LLP (for Stevens & Co, Glasgow)
Second Respondents: Scullion (sol adv); Anderson Strathern LLP
11 July 2017
[1] I agree with the opinion of Lord Malcolm, and have nothing to add.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 44
XA9/17
Lady Paton
Lord Drummond Young
Lord Malcolm
OPINION OF LORD DRUMMOND YOUNG
in the appeal
by
CF
Appellant
against
(FIRST) MF and GF; (SECOND) SCOTTISH REPORTER
Respondents
in an appeal by stated case under section 164 of the Children’s Hearings (Scotland) Act 2011 arising from an appeal under section 160 of the said Act by MF and GF against a decision of a Pre‑Hearing Panel dated 1 September 2016
Appellant: Aitken; Clan Childlaw
First Respondents: Macpherson; Gillespie Macandrew LLP (for Stevens & Co, Glasgow)
Second Respondents: Scullion (sol adv); Anderson Strathern LLP
11 July 2017
[2] I am grateful to Lord Malcolm for setting out the factual background and the history of this appeal. Initially I was of opinion that the appeal should be refused, essentially on the basis that the function of a “relevant person” in the scheme of the legislation relating to children’s hearings is important, and that status as a relevant person should only be removed in clear cases where contact between the relevant person and the child has been lost through causes other than the intervention of the state or public authorities. On reconsideration, however, I am persuaded that my earlier view was incorrect, and that in the particular circumstances of the present case the disposal supported by the majority is correct. The result is that I agree that the first four questions in law in the stated case should be answered in the affirmative.
[3] I would, however, like to add certain comments about the legislation under consideration. The functions of a relevant person under the Children’s Hearings (Scotland) Act 2011 are essentially procedural, and the processes for deeming a person to be a relevant person, or to remove that status, are likewise procedural in their significance. Despite this, in a number of cases sheriffs have subjected the legislation to elaborate analysis and have added substantial glosses to what should be a straightforward procedure. The following comments should be read against that background; I consider that the tests for conferring or removing relevant person status should be straightforward and should be applied in a practical, common sense manner.
[4] I am nevertheless of opinion that the function of the relevant person in the scheme of the legislation is of considerable importance. A relevant person is not concerned with the child’s care in any direct sense; this is why, in MT v Gerry the court drew a distinction between involvement in day-to-day care, where the best interests of the child are paramount, and involvement in upbringing, the underlying criterion for appointment as a relevant person. The primary function of a relevant person is in my opinion essentially procedural: to provide an important check on intervention by public authorities in the life of a child. In the most typical case it can be expected that such intervention will be by members of the child’s family, with a view to preserving the family connection and to ensuring that the involvement of public authorities is effectively monitored by persons who have a familial interest in the child’s upbringing. In many cases preserving a connection with grandparents or other relatives more distant than the parents may be of vital importance in fulfilling this function.
[5] For the foregoing reasons I am of opinion that pre‑hearing panels, and sheriffs on appeal, should be slow to deny relevant person status to a close relative. Such status is, however, subject to a statutory test. An individual must be deemed a relevant person if the pre-hearing panel considers that the individual “has (or has recently had) a significant involvement in the upbringing of the child”: Children’s Hearings (Scotland) Act 2011, section 81(3). Likewise, an individual must no longer be deemed a relevant person if the pre-hearing panel considers that the individual “does not have (and has not recently had) a significant involvement in the upbringing of the child”: section 81A(3). Those should in my view be treated as relatively straightforward tests, which should be applied in a practical and common sense manner, subject only to recognition of the procedural importance of relevant person status.
[6] For this reason I am of opinion that the statutory test should not be hedged about with procedural niceties. In the present case the sheriff decided that, in considering whether the grandparents had a significant involvement in the child’s upbringing, evidence of their involvement prior to 29 October 2015, the date of the order by Sheriff Kerr that the grandparents should be deemed to be relevant persons, should be excluded. In my opinion this was erroneous. It is true that by the order of that date Sheriff Kerr decided that the grandparents should be deemed relevant persons, but that does not mean that what happened before that date is immaterial to a subsequent attempt to remove relevant person status. As a matter of common sense, it seems to me that the total history of the involvement of the would-be relevant person may be material, although obviously the weight accorded to different parts of that history may vary; in particular, more recent history may well be of greater significance than older history. That is, however, a matter for the judgment of the pre-hearing panel, subject to appeal to the sheriff on a point of law. The earlier decision by Sheriff Kerr also appears to me to be a relevant consideration, although the weight to be given to it is once again a matter for the pre‑hearing panel.
[7] In the present case the sheriff took the view that the child’s preference that her grandparents should play no part of her life was not a relevant factor in the decision of the pre-hearing panel. Once again, for similar reasons, I am of opinion that this view is erroneous. The views of the child are certainly not conclusive, but on a common sense approach they are a factor that may be taken into account. Obviously the weight given to those views will depend on a range of matters, notably the age and mental and emotional maturity of the child and the degree to which the child’s view appears to be his or her own decision, uninfluenced by any pressure from other persons. Other matters may be relevant, for example the extent to which contact between the child and the would-be relevant person has broken down and the reasons for any such breakdown. I would not want the court to lay down any prescriptive approach to these elements; as I have sought to emphasize the tests in sections 81 and 81A should be applied in a practical and common sense manner. Ultimately, the question is perhaps whether the child’s views can properly be considered relevant to the decision that must be made under those two sections.
[8] The sheriff further held that the pre‑hearing panel had attached undue weight to the passage of time and failed to attach sufficient weight to state intervention as the reason for the restriction of the grandparents’ involvement. State intervention is a matter that has attracted attention in a number of cases. I agree that it might be relevant in some cases to excuse a lack of direct contact with the child over a limited period. Nevertheless, if the state intervention, in the form of a decision not to order contact between the child and the would-be relevant person, continues for a number of years its significance must be greatly reduced. In such a case there is in fact no involvement in the child’s upbringing, and it is therefore difficult to see how the basic statutory test could be met. In short, therefore, I consider that state intervention may be a relevant factor to excuse short-term lack of contact, but its relevance does not go beyond that. As with the question of whether the pre‑hearing panel should look at matters before the sheriff’s decision to award relevant person status and the relevance of the child’s own views, I consider that state intervention as an explanation for lack of contact is a factor that may be taken into account by a panel, but it is merely one factor to be taken into account.
[9] In the light of the foregoing factors, I agree with Lord Malcolm that the primary decision maker in determining whether the tests under sections 81 and 81A are satisfied is the pre-hearing panel, and not the sheriff. The sheriff’s jurisdiction is confined to an appeal on a point of law. What amounts to a point of law has been the subject of substantial judicial commentary. It is perhaps worth emphasizing that it is not confined to questions of law in the abstract, but extends to the application of the law to particular factual situations; it also encompasses decisions or findings for which there is no evidence or which are inconsistent with the evidence that is available. Finally, it includes cases where the approach of the panel has been fundamentally erroneous, for example by asking the wrong question, or taking account of manifestly irrelevant considerations, or arriving at a decision that no reasonable panel could properly reach. Any of the foregoing grounds will suffice for an appeal on a point of law. In the present case, the critical questions relate to the application of the law, in the form of the statutory test in section 81A, to the particular facts, and also the question of whether the pre-hearing panel took account of irrelevant considerations or failed to take account of relevant considerations. I think that these do constitute points of law.
[10] In conclusion, I would again emphasize that the procedural importance of relevant person status, as a check on public intervention in a child’s upbringing, is always a relevant consideration. In a borderline case, I would expect that this factor would normally tip the balance in favour of ensuring that at least one family member has such status. In the present case, however, a number of countervailing considerations exist: the overall history of the grandparents’ involvement with the child; the length of time since they last had direct contact (notwithstanding state intervention); the fact that direct contact with the child was unsuccessful; and the child’s wishes following the unsuccessful attempts at contact. In the light of these factors I am ultimately persuaded that the decision of the pre‑hearing panel was one that was properly open to it; they applied the statutory test correctly, and did not take account of irrelevant factors. For these reasons I agree that the case should be remitted to the sheriff with a direction to refuse the appeal.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 44
XA9/17
Lady Paton
Lord Drummond Young
Lord Malcolm
OPINION OF LORD MALCOLM
in the appeal
by
CF
Appellant
against
(FIRST) MF and GF; (SECOND) SCOTTISH REPORTER
Respondents
in an appeal by stated case under section 164 of the Children’s Hearings (Scotland) Act 2011 arising from an appeal under section 160 of the said Act by MF and GF against a decision of a Pre-Hearing Panel dated 1 September 2016
Appellant: Aitken; Clan Childlaw
First Respondents: Macpherson; Gillespie Macandrew LLP (for Stevens & Co, Glasgow)
Second Respondents: Scullion (sol adv); Anderson Strathern LLP
11 July 2017
[11] The appellant is CF, a child who is now 14 years of age. In July 2012, along with a sibling she was removed from her mother’s care to a place of safety, pursuant to a Child Protection Order. CF has remained in foster care ever since. CF was made subject to a Compulsory Supervision Order (CSO) in October 2012. In August 2013, in advance of the CSO being considered at an annual review, a pre-hearing panel was arranged, at which it was decided in terms of section 81(3) of the Children’s Hearings (Scotland) Act 2011 that CF’s maternal grandparents, MF and GF, had (or recently had) significant involvement in the upbringing of CF and thus should be deemed “relevant persons”. This allowed them to participate in the children’s hearings concerning their grandchild.
[12] In February 2014 a children’s hearing decided that MF and GF should no longer be deemed to be relevant persons. An appeal against this decision was upheld (F & F, Appellants 2014 Fam LR 57). The reporter’s appeal to the sheriff principal was refused on the grounds that a reporter has no such right of appeal, see section 164(3) of the Act. In October 2015 a children’s hearing decided that the grandparents no longer met the test to be deemed relevant persons. Their appeal against that decision was upheld by a sheriff. In July 2016 CF instructed her own solicitor, who requested a review children’s hearing and a pre‑hearing panel, the latter to consider whether to “undeem” the grandparents as relevant persons. On 1 September 2016 a pre‑hearing panel decided that MF and GF should no longer be deemed relevant persons. On 8 September 2016 Sheriff Reid (the same sheriff who heard the first appeal) determined that an appeal by the grandparents against that decision should be upheld. He quashed it and made an order deeming the appellants to be relevant persons, all in terms of section 160(4) of the Act. CF has now appealed by way of stated case to this court.
The Background Circumstances
[13] At the outset it is appropriate to set out the background circumstances in more detail. CF was born in October 2002. She has five siblings/half siblings, being K (aged 15), L (aged 12), W (aged 11), A (aged 2) and S (aged 1). K is in a separate foster placement. L was originally placed with foster carers together with CF, but that broke down in July 2014. She is now placed in a residential unit. W resides with his father (who is not CF’s father). A and S reside with MF and GF. Since her reception into care CF has had no direct contact with her grandparents other than two one hour occasions in October and November 2014. By all accounts CF is thriving in her current foster placement.
[14] MF and GF were first deemed to be relevant persons in respect of CF in August 2013. However CF does not want her grandparents to have any part in her life. For some time she has had no desire to see them, and has expressed the view that they should no longer be regarded as relevant persons in relation to her. Her grandparents attribute the breakdown of contact between them and CF to “the wholly inappropriate nature of the supervised contact arrangements insisted upon by the social work department”, and to CF being upset by the fact that she is in foster care, while her brother and sister live with her grandparents.
By letter of 20 July 2016 a solicitor for CF requested an early review hearing of her CSO.
“Our client wishes the pre-hearing panel to undeem her grandparents as relevant persons. In addition, our client does not wish the panel papers, including reports relevant to the full hearing, to be provided to her grandparents prior to any decision being made by the pre-hearing panel regarding relevant person status. [CF’s] grandparents have no involvement in her life. She has not had contact with them for some time and they have had no decision making role for some time.”
On 1 September 2016 a pre-hearing panel determined that the grandparents should no longer be deemed to be relevant persons. The reasons for the decision were as follows:
“The panel spoke with [CF]… [she] explained that she called the hearing because she wanted her grandparents to no longer be relevant. She did not want them to take part in decisions, to have any reports about her, and did not want them to know what she was doing day to day. She said that she had not seen her grandparents for a year and a half and that was her decision. Even if she was not on an order she would not want to see them. She said that there was no bond with her grandparents and previously when she saw them she did not like the way she behaved afterwards. Also she explained that during contact it was always her telling them (her grandparents) what she was doing and not asking her. The panel considered Sheriff Reid’s judgment and in particular paragraphs 55 and 56. The panel considered all of this and decided whilst previously grandparents were relevant the time had now arisen when they no longer met the legal test of significant involvement in the upbringing of [CF]. The CSO currently prevents contact but [CF] with or without the order would not want her grandparents to exercise significant involvement in her life anymore.”
[15] The paragraphs referred to in the pre-hearing panel’s decision are part of the original appeal decision (cited above) and are in the following terms:
“[55] By way of explanation, I accept that, with the passage of time, an individual may lose relevant person status if his involvement [or recent involvement] with the child has diminished and is no longer significant.
[56] However, in my judgment a children’s hearing should be slow to reach such a conclusion in circumstances where the direct, proximate and dominant cause of the diminishing recent involvement is the ongoing intervention of the state itself. That is because there would be an inherent unfairness in the state both restricting a relevant person’s involvement with a child and then founding upon that enforced restricted involvement to deny the person further participation in the decision-making process concerning the child.”
It is apparent that the key factors which influenced the panel were:
(1) CF’s desire that she should not see her grandparents and that they should have no involvement with her;
(2) Her evidence that she had not seen her grandparents for a year and a half and that there was no bond between them;
(3) While there had been a previous decision that the grandparents met the statutory test, the time had come when they no longer met the legal test in section 81A(3) of the Act of significant involvement (or recent significant involvement) in the upbringing of CF; and
(4) With or without a CSO preventing contact, CF would not want her grandparents to exercise significant involvement in her life; the inference being that state intervention was not responsible for the diminished involvement of MF and GF.
[16] The grandparents appealed to the sheriff, stating that “the determination is not justified because the children’s hearing has erred in law in determining that the grandparents are no longer to be deemed to be relevant persons in respect of (CF) as the grandparents have both played significant roles in the upbringing of said child.” Reference was made to Sheriff Reid’s earlier decision. In her answers to the appeal the children’s reporter said: “The panel gave particular weight to the fact that even without the state intervention of a CSO with a measure of no contact, (CF) herself states clearly that she would not want to see them.” In a later passage it was submitted that “it is not solely the CSO that impedes the appellant satisfying having significant involvement in the upbringing of the child, but it was the child’s view of the quality of the interactions during the previous contacts and the child’s clear view that with or without the CSO she does not wish to see her grandparents or share information about how she is doing with them.” It was also submitted that circumstances had changed since Sheriff Reid’s decision to allow a previous appeal.
[17] In the answers on behalf of CF one finds the following:
“The child expressed her views clearly to the panel about her reasons for wishing to have the appellant’s relevant person status removed… The child was clear that she had obtained legal advice in order to seek to have her grandparents’ relevant person status removed. The child was clear that she understood that meant that the appellants would not be involved in decisions and no longer have a right to obtain information about her. She actively sought to achieve this outcome. The child has consistently held the view that she does not wish to have the appellants, or indeed her mother involved in her life. At the child’s request her Compulsory Supervision Order was varied on 26 October 2015 to expressly state that she shall have no contact with her mother and grandparents. The child advised the panel that part of the reason she did not wish to have contact with the appellants, and continued to be of that view, is that she saw the negative impact that contact with them was having on her wellbeing. She explained to the panel that she was angry and upset following contact. The child told the panel that she had moved on and does not consider them to have any role whatsoever in her life. It upsets her that they have an entitlement to and are provided with papers and reports. She explained to the panel that even without state intervention she would not want to see her grandparents or have them involved in her life.”
[18] The reporter’s answers also explained that the persons attending the pre-hearing panel were the grandmother, accompanied by her solicitor; CF’s mother; one of the foster carers; and CF, accompanied by her solicitor. The hearing was arranged to avoid any direct contact between CF and her mother and grandmother, however the grandmother’s solicitor was present when the child expressed her views. The pre-hearing therefore consisted of two parts, the first involving CF, with CF accompanied by her solicitor and foster carer. The grandmother’s solicitor was also present, along with the reporter and the panel members. This part of the hearing took approximately 15 minutes. In the main it consisted of the panel members speaking with CF, with a focus on whether the grandparents had or recently had a significant involvement in her life. The second part of the hearing took place in another room and involved everyone other than CF. By reference to the reporter’s notes, CF’s mother and grandmother were informed as to what had taken place during the earlier part of the hearing. The panel then considered the representations of the grandmother, her solicitor and CF’s mother.
The Sheriff’s Decision and Stated Case
[19] As discussed later, the test for the sheriff under section 160 was whether the panel’s decision to “undeem” MF and GF was or was not “justified”. He concluded that it was not justified for three reasons.
(1) The panel took into account an irrelevant factor, namely evidence as to the nature and extent of the grandparents’ involvement with CF prior to 29 October 2015, which was the date of Sheriff Kerr’s order that they should be deemed to be relevant persons;
(2) The panel had regard to another irrelevant factor, namely the child’s stated preference that her grandparents should have no part in her life and should not be relevant persons; and
(3) The panel gave undue weight to the passage of time, and failed to give sufficient weight to the effect of state intervention upon the involvement of the grandparents in the upbringing of the child.
[20] The sheriff has stated certain questions of law for the opinion of this court which reflect the above issues. He observes that the provisions in the Act which allow those who have (or have recently had) a significant involvement in the upbringing of a child to be designated as “relevant persons” are designed to ensure the participation of those directly affected by children’s hearing proceedings, and that decisions are made on the fullest information. It is helpful for there to be “a contradictor” to the acts and decisions of the state concerning the child. The only issue is locus standi (right to participate in the proceedings), not the welfare of the child. The statutory test for relevant person status is purely factual.
[21] According to the sheriff, in a review hearing the focus should be on the circumstances since the earlier decision to grant relevant person status. That earlier decision should be respected not overturned. In the two earlier appeals of a similar nature concerning these grandparents, the panels’ decisions were criticised on the basis that they revisited the facts and circumstances at the time of the initial decision to grant them relevant person status, and then reached a different view from the original panel. As the sheriff puts it, as to whether the grandparents should have been given relevant person status in August 2013, “that ship had sailed”.
[22] The sheriff criticises the panel’s reasoning that there was no bond between CF and her grandparents; that when she had previously seen them at contact sessions “she did not like the way she behaved afterwards”; and that during contact sessions it was “always her telling them what she was doing and not them initiating the discussion”. All contact had been terminated in November 2014. The sheriff concludes that the above considerations were irrelevant, in that the proper starting point was 29 October 2015, being the date of the last determination of the grandparents being relevant persons. A line should have been drawn, with the focus on what had happened since October 2015.
[23] As to the child’s wishes, in the opinion of the sheriff they are irrelevant to the purely factual issue under consideration. Just as one cannot select one’s parents, a child cannot choose his relevant persons. A child’s wishes can only cast light on the question of whether the statutory test is met. CF’s preference is neither here nor there. In February 2015 the CSO had been varied to prevent contact between CF and her grandparents, and this because of CF’s wishes. It follows that there is nothing new in this factor. The sheriff observes that no doubt CF’s wishes carry weight regarding the question of contact or no contact, however they have no relevance to the question before the pre-hearing panel.
[24] The sheriff’s view is that, in concluding that “the time had now arisen when (the grandparents) no longer meet the legal test of significant involvement in the upbringing of (CF)”, the panel paid insufficient regard to the part played in this by state intervention in the form of the prohibition on contact. The impact of such intervention is relevant when considering the statutory test. Were it otherwise the state could both prevent any involvement and then prevent participation in the decision making process concerning the child. That would be “unfair and invidious”. If the mere passage of time could justify removal of relevant person status, many relevant persons could be stripped of their status simply because the state had stopped them from being involved in the upbringing of the child. That would have an adverse effect on the quality of decision making in the children’s hearings. Local authorities and the reporters’ administration could proceed “unchallenged”. The natural parents, who have automatic relevant person status, might not be involved. The sheriff observes that often it is only a relative such as a grandparent or aunt/uncle who takes an ongoing interest in the child and represents the sole familial connection. In the present case it is her grandparents who have maintained an interest in CF, and they look after two of CF’s younger half siblings. The panel erred by failing to have regard to these factors.
[25] In the stated case the sheriff returns to the issue of state intervention, just as he did when determining the first appeal against removal of the grandparents’ status:
“[70] Accordingly, when assessing or reviewing relevant person status under section 81 of the 2011 Act, a children’s hearing [or pre-hearing panel meeting] must take into account the extent to which the state has intervened to exclude or restrict the person’s involvement in the child’s upbringing.
[71] How is that to be achieved upon a review of relevant person status.
In my respectful judgment, in circumstances where an individual has already been deemed to be a relevant person, and that status is subsequently being reviewed, the proper approach is to take as the ‘starting point’ the preceding determination of relevant person status [whether by virtue of a pre-hearing panel decision or shrievel order]; to accept that, as at that latter date, the individual had [or had recently had] a significant involvement in the child’s upbringing; and, in assessing the nature, extent and significance of the relevant person’s involvement in the child’s upbringing thereafter, to consider the extent to which the relevant person has continued to exercise such rights, entitlements and liberties as remained open to him, within the constraints imposed by state intervention. If, broadly speaking, the relevant person has continued in the intervening period to exercise such [limited] rights and liberties as remained available to him to be involved in the child’s upbringing [by, for example exercising such contact as is permitted by subsisting orders; by attending or being represented at, or otherwise engaging with, children’s hearings in relation to the child; by appropriate engagement with the implementation authority in the ongoing care of the child], then the reviewing panel should be slow to conclude that the statutory criteria are no longer fulfilled. That is because, in those circumstances, it cannot reasonably be said that the relevant person’s involvement in the child’s upbringing has materially changed, still less diminished, in the intervening period. Rather, it has been sustained. While I accept that it can be argued that the ‘significance’ of that involvement, even if sustained, may diminish as time passes, I would again suggest that a reviewing panel should be slow to reach such a conclusion because there would be an inherent unfairness in penalising a relevant person for not having a more significant involvement in the child’s upbringing since the date of the preceding determination, in circumstances where no greater involvement is permissible or possible due to the state’s own intervention. Put another way, in circumstances where the state has intervened to restrict a person’s involvement in a child’s upbringing, the weight to be attached to the mere passage of time as a relevant factor in the assessment exercise required by section 81 of the 2011 Act, is reduced.
[72] In summary, if a relevant person continues to avail himself of the residual rights or liberties left to him to be involved in the upbringing of the child [notwithstanding the constraints imposed by state intervention], then little more can be expected of him to justify a retention of his locus standi. Conversely, if a relevant person fails to avail himself of those remaining rights and liberties, then his involvement in the child’s upbringing [and its significance] may well be said to have been diminished, and his locus standi as a relevant person may then be at risk. In that way, due weight is given to the incidence of state intervention as a relevant factor in the assessment exercise required by section 81 of the 2011 Act.”
[26] The sheriff notes that in October 2015, when disposing of an earlier appeal Sheriff Kerr made an order deeming the grandparents as relevant persons in relation to CF. Thereafter, while contact remained prohibited, they exercised such residual rights and liberties as were available to them to be involved in their grandchild’s upbringing. For example, they have continued to attend or be represented at children’s hearings, engaged with the process, including exercising rights of appeal, and have engaged with the local authority by requesting a kinship assessment.
[27] The legislation requires an appeal of this nature to be marked and dealt with within ten days of the decision under challenge. On 8 September the sheriff quashed the determination of 1 September and made an order deeming the grandparents to be relevant persons in relation to the child, all in terms of section 160(4) of the Act. He declined an invitation by the reporter to consider of new whether the grandparents satisfied the statutory criteria. He considered that such an exercise would be an innovation upon the terms of the legislation which requires the sheriff to apply a single unitary test, namely to determine whether the decision appealed against is “justified”.
“It is possible to conceive of situations in which a hearing has fallen in some respect and yet conclude that the decision itself is justified. This was not such a case. The errors identified were material and vitiating in effect. Having concluded that the decision is not justified, I am compelled to quash the decision and make the further consequential order.”
The Submissions
[28] Before this court submissions were made in support of the appeal on behalf of both the child and the reporter. The grandparents were represented and resisted the appeal, contending that the sheriff’s decision disclosed no error of law. In terms of section 164 of the Act, an appeal to this court lies only in respect of a point of law or procedural irregularity (the latter does not arise in the present case).
[29] On behalf of the reporter it was submitted that the pre-hearing panel was entitled to take into account all relevant circumstances, whatever their date. No line should be drawn. The sheriff attached too much importance to the appeal decision in October 2015. In quashing the panel’s determination, Sheriff Kerr did not rule that, as at October 2015, the grandparents met the statutory test for relevant person status. He simply found that the panel had erred. The term “starting point” as used by the sheriff cannot be found in the Act. While an earlier decision should be respected, a panel, when considering whether to undeem a relevant person, should have regard to all relevant circumstances. In any event, in October 2015 it was not open to the sheriff to make an order granting the grandparents relevant person status when the decision under review was one removing such status. The quashing of the decision of itself restored that position. The sheriff can only make a deeming order when the decision quashed is one refusing relevant person status (in other words a refusal when the issue is first raised) – see section 160(4)(b).
[30] The panel decided that the grandparents had no recent significant involvement in the child’s upbringing. The reason for this was not state intervention, but rather the child’s wishes. The panel’s reference to pre October 2015 contact sessions simply provided an explanation for the child’s views. CF is old enough for her views to carry weight. At the time of the hearing she was 13 years of age. She “decided” that her grandparents should play no part in her life, hence contact was stopped. That is more than a mere preference that they should not be relevant persons. CF’s decision is relevant to a proper application of the test under section 81(3). As it was, as at September 2016 the grandparents were unable to meet the statutory test. They had had no recent significant involvement in the upbringing of their grandchild. In his discussion as to the importance of state intervention the reporter assumes that the sheriff had in mind the grandparents’ convention rights. The reporter accepts that the impact of state intervention is a factor. No doubt one should be slow to remove relevant person status when state intervention has played a part, but it does not preclude consideration of all relevant circumstances. Reference was made to paragraph 55 of Sheriff Reid’s earlier decision (cited earlier) and KH v Children’s Reporter (unreported) 18 August 2016 Sheriff Principal Scott QC.
[31] Paragraph 35 of the reporter’s note of argument is in the following terms:
“An analysis of the statutory regime and the authorities supports the following propositions where state intervention is said to have had an impact on the involvement an individual has in the upbringing of a child:
(a) The children’s hearing/pre-hearing should evaluate all of the facts and circumstances and consider whether state intervention has played a part in preventing the individual from pursuing a significant involvement in the upbringing of the child;
(b) If the whole facts and circumstances demonstrate that it is state intervention which has been a direct factor in the loss of significant recent involvement, the children’s hearing/pre-hearing panel should be slow to undeem; however the children’s hearing/pre-hearing panel will require to be satisfied that it was state intervention which presented the bar to the continuing significant involvement in the upbringing of the child.
[36] The intervention by the state did not present the bar to the [grandparents’] continuing significant involvement in the upbringing of the child. It was [CF’s] desire that [the grandparents] should have no involvement in her upbringing [let alone significant involvement] which presents the bar to them remaining deemed relevant persons.”
[32] It was contended that even without state intervention, the child’s wishes as expressed to the social workers and her solicitor would have prevented her grandparents from any significant involvement in her upbringing. The child also enjoys convention rights, including a say as to who is to be given sensitive personal data.
[33] Although the court was told that the reporter now concedes that the sheriff was correct to decline the invitation to consider the full facts and circumstances of new, it was still suggested that some consideration of the merits was required. In particular, when dealing with an appeal under section 160(1), and deciding whether a decision of a panel is or is not “justified”, the test in W v Schaffer 2001 SLT (Sh Ct) 86 should be applied. If the sheriff identifies a relevant error, he must then consider the facts and circumstances and decide whether the test for relevant person status is met. If any other approach is taken, a person who clearly is not a relevant person might be deemed to be such. And a person who probably is a relevant person risks an adverse decision. The reporter drew a contrast with appeals under section 154 of the Act. These concern discretionary decisions, whereas section 160 involves purely factual issues. A broad interpretation of the phrase “justified” in section 160(1) should be adopted.
[34] CF’s note of argument echoed much of the above. Specific points raised will be discussed below. The note of argument for MF and GF supported the sheriff’s reasoning. Again discrete points will be addressed later.
The Legislative Provisions
[35] In terms of section 200 of the Act certain persons are automatically entitled to the status of “relevant person”: in general those with parental responsibilities in relation to a child. Other persons are nonetheless entitled to relevant person status at the hands of a panel at a children’s hearing, or a pre-hearing panel, if that individual has (or has recently had) “a significant involvement in the upbringing of the child” – section 81(3). Such a person will be “deemed” to be a relevant person. This then places that person under significant obligations in relation to the proceedings before the children’s hearing and entitles full participation in the process, including rights of appeal. On a referral from the principal reporter, the relevant person can lose this status (be “undeemed”) if the individual “does not have (and has not recently had) a significant involvement in the upbringing of the child” – section 79(5)A and section 81A(3). In addition, under section 142, if a children’s hearing varies or continues a CSO, it must review whether a deemed relevant person should retain that status “and undeem that person if he/she does not have (and has not recently had) a significant involvement in the upbringing of the child…”
[36] In terms of section 160, certain persons, including relevant persons, can appeal to the sheriff against:
(i) A determination to deem or not to deem an individual as a relevant person.
(ii) A determination that a relevant person is to continue to be deemed, or no longer to be deemed, a relevant person in relation to a child.
If the sheriff is satisfied that the determination under appeal “is justified” the determination must be confirmed – section 160(3). If the sheriff is not so satisfied, it must be quashed – section 160(4)(a). If the sheriff is quashing a decision under section 81 (note not section 81A) that a person should not be deemed to be a relevant person in relation to a child, the sheriff must also “make an order deeming the individual to be a relevant person in relation to the child” – section 160(4)(b). This provision prompted the submission (which is reflected in the final question in law posed in the stated case) that the test of “justified” or “not justified” necessarily requires the sheriff to carry out a separate assessment as to whether the individual does or does not meet the “significant involvement in the upbringing of the child” test, and only quash a decision not to deem where it is clear that the wrong decision on the merits has been made. Strictly, this issue does not arise in the present case, in that it concerns a decision made under section 81A, not one under section 81. Section 81A was added by the Children and Young People (Scotland) Act 2014 as part of the new provisions allowing a reporter to refer the matter of whether a deemed relevant person should continue to enjoy that status to be referred for determination by a pre-hearing panel. However, given its general importance, the following observations are offered.
[37] Firstly, the primary jurisdiction to determine relevant person status rests with the children’s hearing or a pre-hearing panel. I agree with the observations of Sheriff Principal Nicholson in Schaffer that a sheriff is not entitled to uphold an appeal simply because he/she disagrees with a decision.
“Instead, the sheriff’s task is to see if there has been some procedural irregularity in the conduct of the case; to see whether the hearing has failed to give proper, or any, consideration to a relevant factor in the case; and in general to consider whether the decision reached by the hearing can be characterised as one which could not, upon any reasonable view, be regarded as being justified in all the circumstances of the case. The ground of appeal before a sheriff is accordingly quite a narrow one” (pages 87/88).
Later in his judgment the sheriff principal states that the sheriff’s task is not to reconsider the decision of the children’s hearing on its merits, but “to confine himself to the much narrower question whether that decision was one which was not justified in all the circumstances of the case”. The sheriff principal was considering predecessor legislation, namely section 51 of the Children (Scotland) Act 1995 which allowed the sheriff to uphold an appeal if satisfied that “the decision of the children’s hearing is not justified in all the circumstances of the case”. While the phrase “in all the circumstances of the case” does not appear in the current equivalent provisions, this does not indicate any material difference in the proper approach to the question under consideration.
[38] On an appeal against a decision not to deem, the sheriff must decide whether that decision is or is “not justified”. A successful appeal requires the sheriff to make an order deeming that the person is a relevant person. It follows that the sheriff should only uphold an appeal on the basis of an error in law, procedural irregularity or the like, if satisfied that the decision cannot nonetheless be supported. In other words the identified problem must go to the root of the decision – it must vitiate it to a significant extent, and it must be clear that the outcome is unjustified, in the sense that it is wrong on any reasonable appraisal of the known facts. In other words, having regard to the known facts, and notwithstanding the error or flaw in the proceedings, if a decision not to deem can nonetheless be supported, or regarded as “justified”, the decision should not be quashed.
[39] None of this requires the sheriff to conduct a wholesale review of the merits of the matter and reach his own decision. He has no jurisdiction to do so. In any event, the extremely short timescale for the decision (seven days for the marking of the appeal and a further three days thereafter for its determination – section 160(6)) and the summary nature of such applications and appeals would render this unrealistic. While the statutory provisions are less than clear, the above may reconcile the apparent tension introduced by the requirement on the sheriff to grant relevant person status if a decision under section 81(3) not to deem is shown to be unjustified. This means, and notwithstanding what one might otherwise take from the quoted passage from Schaffer, that simply to point to an error in law or some other irregularity will not automatically lead to a successful appeal. As the sheriff principal said, the ultimate requirement is to consider whether the decision reached by the hearing or panel can be characterised as one which could not, upon any reasonable view, be regarded as being justified in all the circumstances of the case. An error of law may point strongly to a fundamental problem with the decision-making process, but nonetheless the sheriff, having regard to the underlying facts may not be satisfied that the decision itself is unjustified (an objective test). If however he is so satisfied, then one can understand why the determination should be quashed and replaced with an order which can be justified. This guidance may require to be revisited if and when the issue is directly relevant to the outcome of an appeal to this court.
[40] An appeal to the Court of Session proceeds under the terms of section 164(1), which allows for an appeal by stated case “against a decision of the sheriff in an appeal against a determination of a pre-hearing panel or children’s hearing that an individual is or is not to be deemed a relevant person in relation to the child”. Such an appeal may be made only on a point of law or in respect of any procedural irregularity (subsection 5). While not raised by any of the parties, it can be noted that there is at least a question as to the competency of the appeal to this court. A panel (whether a pre-hearing panel or a children’s hearing) has a twofold jurisdiction: firstly, to decide whether or not to deem an individual as a relevant person in relation to a child; and secondly, to review the continuing validity of that decision. Even before the amendments introduced by the 2014 Act, this duality was recognised – see for example the terms of section 160(1)(a) and (b). While either type of decision can be appealed to the sheriff, on the face of it only decisions of the first kind, namely the initial decision on whether or not to deem a relevant person in relation to a child, can be appealed to a higher court. As already noted, in terms of section 164(1) such an appeal lies only in respect of a sheriff’s decision on an appeal against a determination by a pre-hearing panel or children’s hearing that an individual is or is not to be deemed a relevant person in relation to a child. No specific provision is made for such an appeal in respect of a sheriff’s determination on an appeal against a decision “that an individual – is to continue to be deemed, or is no longer to be deemed, a relevant person in relation to a child” – section 160(1)(a)(ii). The present case falls into this category, in that the panel’s decision was that the grandparents were no longer to be deemed to be relevant persons. I will return to this issue later in this opinion.
Discussion of the Questions of Law
[41] Turning to the questions of law posed by the sheriff they include the following:
1. Did the sheriff err in drawing a line at 29 October 2015 and excluding the relevance of the nature and extent of the grandparents’ involvement prior to that date?
2. Did the sheriff err in taking the view that the child’s preference that her grandparents should play no part in her life was not a relevant factor?
[42] On the first point, it can be noted that Sheriff Kerr’s decision of 29 October 2015 did not involve any consideration of the merits of the grandparents’ status as relevant persons as at that date. He ruled that the panel erroneously looked behind and questioned the initial decision to grant such status in August 2013. “It should not have entertained the proposition that the pre‑hearing panel on 12 August 2013 got it wrong.” Sheriff Kerr reiterated the view expressed by Sheriff Reid in the first appeal that the panel should be slow to undeem a person whose involvement with the child had been affected by state intervention, and considered it unfortunate that the panel had been unaware of those comments. In these circumstances, the order that the grandparents should be deemed to be relevant persons ought to be seen in the context that no assessment of the merits of the matter as at October 2015 had taken place. It follows that, when in September 2016 the pre-hearing panel required to assess whether the statutory test continued to be met, it was not tied to any assumption that as at October 2015 the test was satisfied. There would be no logic to the alternative proposition. It follows that there was no bar to the panel taking into account events prior to that date.
[43] Turning to the second question, it is difficult to assert that CF’s views are a wholly irrelevant factor. In a narrow sense one can understand that they might be, but in the circumstances of the present case the grandparents had not enjoyed any significant direct contact with CF nor involvement in her upbringing since she was taken into care from her mother’s custody in 2012. The children’s hearing had ceded much of the responsibility for any contact arrangements to the social work department, who in turn, no doubt for understandable reasons, were heavily influenced by the views of the by then adolescent, or nearly adolescent, child. CF had lived without any input from her grandparents in her upbringing for some years before the decision in September 2016. In these circumstances, it is difficult to categorise the panel’s reference to the views of the child as a wholly irrelevant factor in the overall assessment of whether the grandparents still met the test laid down in section 81A(3).
[44] This leads to another question posed by Sheriff Reid, and to what may be the key issue in the case, namely whether he was correct in his view as to the importance of the influence of what he described as “state intervention”. He asks whether he erred in concluding that the panel attributed undue weight to the passage of time and failed to attach sufficient weight to state intervention in restricting the grandparents’ involvement in the upbringing of the child. In posing this question the sheriff is reiterating an approach which influenced his decision in the first appeal in the present proceedings to the general effect that, if an order is made which removes a child from her natural family, including her grandparents, and then a finding of relevant person status is made in respect of the grandparents, any subsequent order further restricting their involvement in the upbringing of the child, for example preventing contact, should not upset that status so long as the grandparents are doing all they can reasonably be expected to do to maintain an interest in the child, and in particular are complying with their obligations as relevant persons. In the earlier decision Sheriff Reid stated:
“[54] By way of explanation, it is correct that, with the passage of time, an individual may lose relevant person status if his involvement [or recent involvement] with the child has diminished and is no longer significant.
[55] However, in my judgment a children’s hearing should be slow to reach such a conclusion in circumstances where the direct, proximate and dominant cause of the diminishing recent involvement with the child is the ongoing intervention of the state itself. There would be an inherent unfairness in the state both restricting a relevant persons’ involvement with a child and then founding upon that enforced restricted involvement to deny the person further participation in the decision-making process concerning the child.”
[45] Similar sentiments are expressed in the current stated case. However this approach is an innovation or gloss on the statutory test as to relevant person status. Even if one can confidently identify state intervention as the “direct, proximate and dominant cause” of a person’s diminishing involvement with a child, it does not follow that, so long as the responsible person is fulfilling the obligations of a relevant person, they continue to meet the requirements of section 81A(3). They must continue to have (or recently have had) a significant involvement in the upbringing of the child. On any reasonable understanding of what is meant by those words, it seems clear that MF and GF have not had any such involvement for several years. In my view, simply fulfilling one’s obligations as a relevant person is unlikely to meet the statutory test.
[46] This is consistent with the decision of an Extra Division in MT v Gerry 2015 SC 359. It confirmed that the best interests of the child is not the key consideration, but rather the focus should be on the factual question embodied in the statutory test – has the individual concerned had a recent significant involvement in the child’s upbringing? The court referred to national guidance (paragraph 18) which concentrates on the kind of things which a parent would normally provide, and which at any rate involve some contact and relationship with the child. (The guidance also refers to the importance of the views of a sufficiently old child.) The test is not simply whether the person can give helpful information to the hearing (paragraph 13). Perhaps surprisingly, the court appeared to suggest that day‑to‑day care for the past 18 months was not enough in itself to constitute the foster carers as relevant persons, though, to be fair, the decision was principally aimed at the paucity of the panel’s reasoning.
[47] Returning to the sheriff’s approach, it is not clear what the “direct, proximate and dominant cause” test means, and how it might be applied in any particular case. The panel was entitled to assess whether, given the long period which had passed since there had been any significant involvement, the time had come when the test was no longer met. There is no statutory continuation of relevant person status if significant involvement is interrupted or prevented by state intervention. As has been noted, the test is purely factual. It can be agreed that a child cannot by force of will, in effect deselect a relevant person, but that is not what the pre-hearing panel was saying. Yes, the panel said that for some time CF did not want her grandparents to be involved in her life, but, significantly for present purposes, it also noted that the child had not seen them for 18 months and that there was no bond between them. It concluded that they had no recent significant involvement in her upbringing. That is the issue which the panel had to resolve. There is no criticism of the process leading to that decision which included the input of all directly involved. In the whole circumstances it is difficult to say that the panel was not at least entitled to reach that judgment.
[48] Whether the lack of significant involvement for an extended period is to be attributed to the CSO and the refusal of contact, or to the child’s directions to the social work department, or a combination of both, are questions which are difficult to answer with confidence. Reasonable people might entertain different views. One suspects that a decision one way or the other would require a detailed scrutiny beyond that likely to be achievable at a pre‑hearing panel. However these considerations are secondary to the question set in the test laid down in sections 81(3) and 81A(3). The pre-hearing panel came to a decision contrary to the position of the grandparents, and the question for the sheriff was whether that decision was justified or not justified, and this in the sense of whether it was a decision available to the panel on the known circumstances. It is difficult to avoid the conclusion that the sheriff overturned the panel’s determination simply because he disagreed with it. He took the view that, so long as the grandparents continued to exercise their rights as relevant persons, the test was met. Even if that were to be a tenable view, nonetheless the decision was one for the panel to take. It formed the judgment that, in the absence of any recent involvement, and given the clear views of the 13 year old child expressed over a lengthy period, the test was not met. That cannot be categorised as unreasonable or beyond the bounds of the proven facts, or, in the statutory wording, “unjustified”. (The real issue may be whether it contravenes the grandparents’ article 8 rights, something which has been alluded to only indirectly in the submissions to the court.)
[49] It will be apparent from the above that it is not thought necessary to embark upon any elaborate “but for state intervention” test or hypothesis, something which is likely to be unrealistic and impractical. In the context of the present case, no one can know what the child’s views would have been and how things would have turned out in the absence of state intervention, whether in the form of the foster placement, the CSO, the involvement of the social work department, or the subsequent order preventing contact. To introduce such a hypothetical exercise would pose considerable practical problems and would be at a tangent to the relatively straightforward question asked of the panel in terms of section 81A(3). Equally, to require the panel to ask itself whether the “direct, proximate and dominant cause” of a person’s diminishing involvement in the life of a child is state intervention or some other factor is unattractive. These are three subtly different concepts which have caused much debate and uncertainty in other areas of the law. There is no difficulty with the submission that once a person has relevant person status, that status should be respected and only lost when it is clear that the statutory test for undeeming is met; but the issue of fact should remain for the panel to determine on all the circumstances presented to it. It seems highly doubtful that the exercise would be assisted by a speculative examination of what might have happened in different circumstances. (A different approach might arise were the question to be whether the application of the legislation had been incompatible with the grandparents’ convention rights.)
[50] The grandparents do not agree with some of the explanations which have been given for the breakdown of contact between themselves and CF. They blame the social work department and consider that their granddaughter is upset because, unlike some of her siblings, she is in foster care. It can be assumed that the panel considered and took into account the grandparents’ views, but again, the true cause of a lack of significant involvement is a secondary issue. The relevant legislation poses an issue of fact, albeit one involving elements of judgment or evaluation, in particular with regard to significance and the reference to recent involvement. It will only be in a clear case that a panel’s decision can be labelled as “unjustified”. The note of argument also suggests that a sheriff is entitled to decide as to the appropriate weight to be attached to certain factors. On the contrary, the decision-maker in this regard is the panel. As was emphasised in Schaffer, a sheriff cannot overturn a panel simply because he disagrees with its decision. An appeal under section 160 is not a rehearing of the merits of the matter.
[51] No doubt at one time MF and GF had a significant involvement in CF’s upbringing; indeed in August 2013 they were deemed to be relevant persons. Come September 2016, whether that involvement was continuing or, failing that, was or was not recent, were matters for the pre‑hearing panel. Under reference to “the passage of time” it is clear that it concluded that the grandparents had no recent significant involvement in the upbringing of CF. No doubt some might disagree, and suggest that, in the context of the terms of the CSO and a social work department following the wishes of a child, a more liberal or attenuated approach to the evaluative aspects of the test should have been taken. However this does not mean that the panel’s decision is open to challenge. It has been repeatedly stated that each case depends upon its own facts and circumstances, and only the panel is properly positioned to assess and weigh them.
[52] CF’s note of argument draws attention to guidance laid down by the National Convener of Children’s Hearings Scotland which, in the context of state intervention, states that “the question to be considered is whether ‘but for’ the hearing or court decision, the individual would have, or have recently had, a significant involvement in the child’s upbringing” (paragraph 4.6a). It will be apparent from earlier remarks that I consider that this guidance requires reconsideration.
[53] Another issue addressed, especially in the note of argument for CF, is the status to be given to an earlier panel’s decision that a person is deemed to be a relevant person, and, in particular, can a subsequent panel take into account information which suggests that that decision might have been wrong? It is said that the panel should view the earlier decision as “a material fact of real importance” which should be given considerable weight; however, it does not present an absolute bar to consideration of information concerning the period before that decision, irrespective of its weight and importance. Broadly I would support this approach. Were it otherwise the panel might reach a decision which could not be supported on the basis of the facts as presented to it. There is no rigid system of res judicata. In any event, each time section 81A(3) is addressed, all relevant circumstances require to be taken into account. That said, in the vast majority of cases the primary focus is likely to be on events since the previous decision.
[54] By way of a more general observation, it is clear that the sheriff is troubled by the notion that the grandparents, who might be the only likely route for CF to be reintegrated with her natural family, are being excluded from the decision-making process concerning their granddaughter. Also he sees value in “contradictors” to the acts and decisions of state authorities. It is not difficult to share these sentiments. Indeed in Principal Reporter v K [2010] UKSC 56 mention was made of the potential importance for a child of maintaining a close relationship with a relative such as a grandparent (paragraphs 68/9). “There would then be a procedural obligation to involve that relative in the decision-making process.” However it is important to appreciate that this comment was made in the context of an ongoing close relationship, and potential interference with someone’s “established family life” with a child. A similar idea is raised in paragraph 14 of MT (cited above) in the specific context of section 81(3), and this by reference to whether there is “a relationship between the individual and the child which calls for the procedural protection of constituting the individual as a party to the proceedings”. (As mentioned earlier the issue is not what is in CF’s best interests, but whether the factual statutory test is met.) In KH (cited above) Sheriff Principal Scott (paragraph 52) considered an argument in favour of relevant person status on behalf of a grandparent based on article 8 to be “circular”, in the sense that if there is a valid case under article 8, one would expect the statutory test for relevant person status to be met, and vice versa. I agree.
[55] No doubt powerful arguments, in a sense policy arguments, can be mounted in favour of an expansive approach to the application of sections 81(3) and 81A(3). In a borderline case, a panel might well be influenced by, in effect, a balancing of benefits and disbenefits and looking to the long term best interests of the child. However, at root it is the statutory test which must be addressed and decided, albeit open-ended phrases such as “significant” and “recently” leave room for a spectrum of reasonable and thus justifiable decisions. In my view the panel’s decision fell within that spectrum.
[56] I would answer the first four questions in law in the stated case in the affirmative, in that I consider that the sheriff erred in the manner outlined above. There is no need to answer the final question, but I refer to my earlier comments on the proper approach to an appeal under section 160 of the Act. With reference to the earlier discussion as to the competency of the appeal to this court, in the absence of any objection and corresponding submissions, in the present case at least, I would take a broad approach to the terms of section 164(1) of the Act. It is not easy to understand why an appeal should be unavailable when a sheriff is dealing with a review decision. However, this should not be regarded as preventing a court from considering the matter afresh in another case if and when it is raised by parties. I would remit the case to the sheriff with a direction to refuse the grandparents’ appeal.