A.M. AND S.O. AGAINST GORDON BRECHIN
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
SW2564/13
SW2565/13
2015SCGLA52
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
AM & SO
Pursuer
against
Gordon Brechin
Defender
Glasgow, 30 June 2015.
The sheriff principal, having resumed consideration of the appeal, quoad the child NO answers question 1 in the stated case in the negative and (by way of concession) quoad the child KR answers question 1 in the affirmative; determines that there is no requirement to answer question 2; answers questions 3 to 6 inclusive in both stated cases in the affirmative; allows the appeals; remits each case to the sheriff with a direction that the case of KR should in turn be remitted to the children’s hearing and that the application quoad NO should be dismissed and the referral in her case discharged.
NOTE:-
[1] These appeals were brought to challenge the decision of the sheriff in the context of applications by the Children’s Reporter to have certain grounds of referral established. The applications concerned two children, viz. NO and KR.
[2] The appellants are AM, the mother of KR, and SO, the father of NO and relevant person quoad the child KR.
[3] After hearing evidence and submissions, the sheriff held in each application that the section 52(2)(c) ground was established by the supporting statements of facts, as amended. Both cases were remitted back to the children’s hearing for them to proceed as accords.
[4] The sheriff appended a note to his interlocutor of 24 July 2014 explaining the basis for his decision. However, each stated case set out his approach and reasoning at much greater length. Each case also recorded various findings in fact made by the sheriff in light of the evidence. For the purposes of the appeals, each stated case falls to be treated like for like.
[5] When these appeals were first heard in January of this year, I determined that both cases ought to be remitted back to the sheriff with the request that he provide a note indicating whether he had per incuriam omitted to make a finding in fact regarding SO’s use of expressions as described in the evidence of the witness O’Connor or whether the stated cases, in their existing form, were, in fact, final and accurate.
[6] The sheriff produced a note dated 4 February 2015. In that note, at paragraph [3], he stated the following:
“My recollection of matters is that, although Ms McKellar, for the reporter, sought, at the adjustment stage, to add supplementary words to my narration of Ms O’Connor’s evidence, no additional, discrete finding in fact was proposed. It may be that, for completeness, I ought to have added a finding in fact reflecting the evidence of Ms O’Connor about the expressions used by SO. That omission arose in circumstances where I was of the view that the evidence of past behaviour and the non‑cooperation in further assessment (together with the finding about SO not remaining outwith the family home) provided a sufficient basis for the ground being established; the evidence of the remarks under consideration operated, in my view, to fortify that view.”
Submissions for AM
[7] Against that background, I was further addressed in respect of both appeals. On this occasion, AM was represented by senior counsel, Ms Scott. Her supplementary argument was articulated in the form of written submissions. (These have been retained with the court papers). As I understood matters, senior counsel’s submissions for AM were adopted on behalf of SO by SO’s counsel, Ms Jack. In general terms, it was submitted that the sheriff’s note of 4 February reinforced the basis for the appeals and strengthened the argument in their favour.
[8] It will be seen that these appeals focus upon the “risk” (or otherwise) presented by SO in the circumstances of each application. However, as senior counsel pointed out, the sheriff had relied upon historic behaviour on the part of SO; SO’s failure to submit to further assessment; and SO’s use of language including expressions such as “sexy eyes” and “sexy bum” when making reference to the child NO.
[9] In the course of her submission, senior counsel set out certain propositions of law. It was submitted that the appeals related to the application of the “threshold test” to be found within section 52(2)(c) of the Children (Scotland) Act 1995. That section was now to be found in almost identical terms in section 67(2)(a) of the Children’s Hearings (Scotland) Act 2011.
[10] It was contended that in order to meet the threshold test it was incumbent upon the Reporter to establish that there was a significant or substantial risk (or “real possibility”) of unnecessary suffering or serious impairment to health or development taking place in the future. Senior counsel argued that the facts established, taken as a whole, must be relevant and sufficient to demonstrate such a risk, both on domestic law grounds and for the purposes of article 8 of ECHR.
[11] The central issue in the appeals was characterised as being whether NO and KR were likely to be exposed to sexual and/or violent behaviour at the hands of SO, the latter being AM’s partner and the father of NO. On the hypothesis that such a likelihood had not been established, senior counsel indicated that certain questions in the stated cases required to be answered in the affirmative and that it followed that both appeals ought to succeed.
[12] Whilst for discrete reasons a reference to a children’s hearing would remain in place as far as both children were concerned, senior counsel submitted that the issues raised on appeal were of no little significance. The children’s hearing would be obliged to take notice of the basis upon which grounds had (or had not) been found established. (See M v Kennedy 1993 SLT 431). Were it not correct, the decision arrived at by the sheriff was likely to have a profound effect on AM and SO. Were the decision to stand, then SO was unlikely to be permitted any form of family life involving children unless he were to submit to an assessment and AM would not be permitted a family life involving SO and her children. Senior counsel maintained that the issues on appeal fell within the scope of article 8 of ECHR as explained in Sanchez Cardenas v Norway (2009) 49 EHRR 6, with particular reference to paragraphs 33 – 39.
[13] Given that the sheriff was engaged upon a “risk assessment” exercise, senior counsel submitted that he required to determine whether, in the case of each child, the child was “likely to suffer unnecessarily or be impaired seriously in her health or development, due to lack of parental care”. In so far as AM was concerned, the alleged “lack of parental care” for the purposes of her appeal was exposure to SO. Senior counsel suggested that the issue for the sheriff was whether SO was likely to attack either child in a sexual or violent manner.
[14] The case of M v McClafferty 2008 FamLR 22 was characterised as representing binding Inner House authority on the assessment of risk in a similar context to that of the present appeals. In particular, senior counsel highlighted the terms of paragraph [9] within the court’s judgment:
“[9] Obviously what the statute is looking to is the likelihood of something happening in the future. We are prepared to accept that what is meant by the word “likely” in para (c) is not “probably” or “more likely than not”, but nevertheless that there is a significant or substantial risk of the events set out in that paragraph occurring in the future. In order to decide whether there is such a likelihood, it is necessary to consider in the first place events in the past and then to draw inferences by a process of inductive reasoning from those events and what else is known about the character of the person or persons involved in them, so that conclusions can if possible be drawn about what is likely to happen in the future. In short, it takes the form of a risk assessment, which must be based on evidence.”
[15] Senior counsel indicated that the leading authority alluded to in McClafferty, was that of H v Harkness 1998 SC 287 wherein the sheriff had adopted what was held to be the wrong approach to “risk”. In that case, children had been with foster carers but were going to be returned to their mother unless referral grounds were established. The sheriff had approached the case by saying that it was not known whether the mother could manage the children and, accordingly, the risk of returning them to her should not be embarked upon (293D-E). The sheriff had failed to address the question posed by the threshold test and his decision was set aside (294E – 295F).
[16] Senior counsel also advised the court that there had been a series of House of Lords/Supreme Court cases on risk in similar circumstances, culminating with In Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680. In that case, Baroness Hale had pointed out the importance of the threshold test for intervention as a protection for families against unwarranted intrusion. Her view coincided with that of the Inner House. She affirmed that “likely” in such a context did not mean “more likely than not” but did equate to whether a “real possibility” of harm existed.
[17] For completeness, senior counsel stressed that suspicion of a risk or possibility of a risk was insufficient to meet the test. She contrasted, for example, emergency intervention (eg a child protection order) and the need to address the threshold test for the purposes of intervention on a non-emergency basis. The court was also reminded that in the context of the cases under consideration, the Reporter required to bear the onus of proof.
[18] It was argued that the sheriff’s reasoning in concluding that the relevant ground of referral was established was significantly flawed. Senior counsel maintained that the sheriff’s findings did not reach the required standard. For instance, finding in fact (5) referred to “possible risk”; finding in fact (6) referred to “concerns” and “the risk”; and finding in fact (7) referred to “potential risk”.
[19] It was contended that an illogicality lay at the heart of the sheriff’s reasoning. Such illogicality had been repeated in his note of 4 February 2015. It related to reliance upon SO’s refusal of further assessment. Senior counsel stressed that either the history of SO’s past activities gave rise to an inference that there was a “significant or substantial risk” or a “real possibility” of repetition or it did not. If the history did not demonstrate the necessary level of risk then there was no basis for intervention in either of these cases. Senior counsel submitted that, on the facts, the threshold test had not been met.
[20] Further assessment of SO could only be relevant where the threshold test for intervention had been met. It might have negatived any concern. However, in the present context, the history involved did not establish the existence of the requisite level of risk. Senior counsel made reference to paragraph [21] within the sheriff’s note where he stated, in terms, that “Without assessments there was an unknown risk”. That sentence of itself exposed a fundamental flaw in the court’s decision making process and that flaw was, in effect, repeated in the sheriff’s note from February where the history of past behaviour in isolation was clearly not regarded as a sufficient basis for the ground being established.
[21] Senior counsel criticised the sheriff’s failure to deal with the evidence before him particularly that which he recounted as emanating from social worker, Ms O’Connor. SO had been assessed by a consultant in adolescent psychiatry in around 1990 and 1991. The consultant had advised that SO would benefit from placement in an appropriate environment which would promote pro-social behaviour and challenge inappropriate functioning. SO had then spent time in residential establishments and benefited from that experience. He had taken part in a programme agreed by his psychologist and by the consultant psychiatrist in relation to sexuality and AIDS awareness. The evidence disclosed that there had been no repeat thereafter of inappropriate sexual behaviour. SO had been supervised for 2 years after his placement in the residential establishment and that period of supervision disclosed no known repeat of inappropriate sexual behaviour.
[22] Senior counsel contended that all of the foregoing conveyed the notion that, as an adolescent, SO clearly experienced certain difficulties. However, senior counsel submitted that in no sense could it have been inferred from the evidence or from the existence of such a history that SO had, in fact, carried those difficulties with him into his adult life. Senior counsel argued that it was quite clear why the sheriff ought not to have found SO’s history to be sufficient for the purposes of establishing the ground of referral. Even if it were relevant to the issues in hand it was, submitted senior counsel, never going to be sufficient.
[23] In particular, paragraph [33] within the sheriff’s note drew criticism from senior counsel. She submitted that this paragraph overlooked the treatment received by SO as a teenager which treatment had addressed his behaviour; overlooked the absence of any indecent behaviour during the entirety of SO’s adult life; referred to the so-called “risk” as “unknown”, thereby failing to meet the legal test; and referred to the so‑called “inappropriate sexual language” (about which there was, of course, no finding in fact) without explaining the relevance and significance said language engendered all within the context of the threshold test. Moreover, senior counsel submitted that the sheriff’s reference within paragraph [34] in his note to there remaining “a significant or substantial risk” was unspecific and inconsistent with his previous references to that risk being “unknown”. There had been no meaningful attempt on the part of the court to pose and answer the correct question (cf H v Harkness).
[24] In any event, with regard to the so-called use of inappropriate language, whilst clarification had been sought from the sheriff, senior counsel stressed that his note from February added nothing material to the note appended to the sheriff’s original interlocutor or to his stated case. In the February note, the sheriff again failed to show why any insidious meaning should be attached to the use of the expressions attributed to SO. Additionally, the sheriff made it clear that he had founded upon SO’s adolescent history combined with non-cooperation in the context of further assessment. Whilst the sheriff accepted the possibility that remarks attributed to SO might “fortify” his view, senior counsel pointed out that where that view was, in any event, insufficient ab initio, the existence of the remarks had little if anything to fortify. Of course, as senior counsel submitted, a profound procedural difficulty remained since the remarks attributed to SO passed as unmentioned in the findings in fact. As such, they could not be regarded as having been ventilated by the sheriff as being material to his ultimate decision and there had been no proper opportunity to consider their significance or otherwise.
[25] Senior counsel reminded the court that the ground of referral arising from section 52(2)(b) to the effect that the children were exposed to moral danger had been expressly rejected. That rejection introduced further illogicality into the sheriff’s approach to matters. In the note appended to his original interlocutor finding the ground of referral established, he held that the factual matters founded upon by the reporter to the extent that these were supported by the evidence did not support the section 52(2)(b) ground. Senior counsel submitted that rejection of the “moral danger” ground was inconsistent with a “significant or substantial risk” or a “real possibility” that SO would subject the children to sexual misbehaviour.
[26] The children’s hearing itself could not, argued senior counsel, proceed on the basis that SO’s presence would expose the children to moral danger given the undisputed rejection of that assertion (M v Kennedy, supra). The case of each child was, therefore, imbued with contradiction and each case could not be remitted to the children’s hearing as matters stood, without giving rise to significant difficulties for the hearing in responding to the court’s findings.
[27] In terms of an outcome, senior counsel submitted that, in all the circumstances, in order to rectify the sheriff’s errors in relation to the treatment of risk and to cure the difficulty mentioned at paragraph [26] supra in relation to the remit to the children’s hearing, the appeals ought to be allowed and the cases remitted to the sheriff with a direction that (a) KR’s case should be remitted to the hearing on the basis of statements of fact (1) to (7) and (b) NO’s application should be dismissed and the related referral discharged (albeit that NO would remain subject to the hearing on different grounds).
Reporter’s submissions
[28] Ms Jack, the solicitor representing the Reporter, invited refusal of each appeal. She tendered a note of written submissions which note has also been retained with the papers.
[29] She stressed that the role of the sheriff principal in dealing with appeals under section 51(11) of the 1995 Act was to examine whether there had been any error in law or procedural irregularity. The court should not go any further, for instance, by examining the merits of the decision below or by reassessing the evidence. Ms Jack referred to paragraph 54.03 of Sheriff Kearney’s work on Children’s Hearings and the Sheriff Court (2nd edition) and to the case of W v Schaffer 2001 SLT (Sh Ct) 86 which, she submitted, also highlighted the “narrow” scope of an appeal to the sheriff principal.
[30] Following the issue of the sheriff’s note dated 4 February, Ms Jack renewed the submission previously advanced on behalf of the Reporter to the effect that the sheriff, in the case of each child, had not failed to apply the correct test or misconstrued or misapplied a point of law, nor had he taken into account irrelevant or improper considerations. Ms Jack argued that the sheriff had provided adequate reasons to underpin his factual conclusions. There could be no suggestion that the sheriff had plainly gone wrong. He had been entitled to find the ground of referral established.
[31] The significance of the McClafferty case, cited by senior counsel for AM, was accepted on behalf of the Reporter. Whereas senior counsel had referred to paragraph [9] in McClafferty, Ms Jack also referred to the preceding paragraph [8]. In an effort to apply the decision in McClafferty to the present appeals, Ms Jack maintained that the sheriff required to ask himself the statutory question as to whether it had been demonstrated that each child was likely to suffer unnecessarily or be impaired seriously in her health or development due to a lack of parental care. She contended that the sheriff had done so and referred to paragraph [34] within the stated case. Ms Jack also submitted that “likely” meant that there was a significant or substantial risk of the events set out within section 52(2)(c) of the 1995 Act occurring in the future. Once again, it was argued that the sheriff had applied the proper test under reference to the foregoing paragraph [34].
[32] The sheriff had benefited from the evidence relating to past events coming directly from those who had experienced those events. Ms Jack made reference to paragraphs [2] – [5] and paragraph [33] within the sheriff’s stated case. The sheriff had clearly afforded due regard to the evidence led on behalf of the Reporter. Ms Jack characterised the sheriff’s approach as being to the effect that past behaviour on the part of SO had given rise to “a prima facie risk”. She maintained that the court had been dealing with a significant and substantial risk. The character of the past behaviour on the part of SO had been violent and sexual. There had been a pattern of conduct. Ms Jack submitted that the nature of the behaviour and its pattern were crucial.
[33] The sheriff had given proper consideration to the period of time which had elapsed since the events in question had taken place. It was contended that it was not self-evidently the case that the passing of a number of years, even 25 years, meant that the risk had lessened. The sheriff heard no evidence that the risk would be lessened by the passage of time. It was, submitted Ms Jack, for the sheriff to determine the nature and extent of any risk having reflected upon the amount of time which had passed. He had done that and his approach disclosed no error of law.
[34] On behalf of the Reporter, it was suggested that any contribution by SO in terms of reducing the risk identified by the evidence, albeit involving input from a psychiatrist and a psychologist had, to an extent, been misrepresented in the course of the appeal. It was argued that any work undertaken at the material time, related only to sexuality and AIDS awareness and did not address SO’s behaviours. It was submitted that placement in residential establishments together with a 2 year follow-on period during which there had been no known record of any repeat behaviour did not mean that the risk had been reduced or eliminated.
[35] Separately, in order to determine whether any likelihood of unnecessary suffering or serious impairment in health or development due to a lack of parental care existed, the sheriff also required to consider what else was known about the character of SO. The sheriff had heard evidence about his dealings with the social work department, his refusal to take part in a risk assessment and what Ms Jack described as recent inappropriate sexualised language towards his infant daughter. Ms Jack also cited various adminicles of evidence from which, she contended, the sheriff could infer the nature of SO’s character. She listed these adminicles at page 4 in her note of written submissions. It was submitted that a picture of SO’s character emerged. It was a picture which embraced hostility, aggression, violence, not being honest about the past or about staying out of the family home (non-cooperation), inappropriate sexual language to a baby of less than 6 months, an extensive history of incidents against women aged between 6 and 23 and the failure of both SO and AM to engage with services.
[36] Ms Jack maintained that in light of the foregoing characterisation, it would have been reasonable for SO to co-operate with and absolutely sensible for social workers to seek to have SO assessed. Ms Jack returned to what appeared to her core contention, viz. the existence of a prima facie significant risk. It was reasonable and proportionate for the social work department to attempt to carry out a risk assessment. In Ms Jack’s submission, it had not been unreasonable for the sheriff to have considered the evidence in the way that he did and to have concluded that SO’s unwillingness to co‑operate with the social work department had been what Ms Jack described as a very significant feature.
[37] The inappropriate language which had featured in the evidence had been characterised by the sheriff as “inappropriate sexual language”. Ms Jack maintained that there had been no error in arriving at that characterisation. Once again, the use of such language served to inform an assessment of SO’s character. Absent procedural irregularity or error of law, the sheriff’s assessment in this regard should not be interfered with on appeal.
[38] Returning to the theme of likelihood under section 52(2)(c), Ms Jack submitted that the case of McClafferty was not authority for the proposition that there required to be an expert third party risk assessment in respect of an individual before grounds of referral could be held established. She maintained that if that were so the existence of risk could never be proved where someone refused to take part in such an assessment. It was, on the other hand, the sheriff’s role to take character into account and to draw inferences by inductive reasoning taken together with past events. That was exactly what the sheriff had done in the present cases. Of course, factually, the case of McClafferty had differed in important respects from the present appeals. Ms Jack sought to draw out a distinction whereby SO had been asked by social workers to remain out of the family home pending the carrying out of a risk assessment. Something had been done in an attempt to prevent the children from living in the same household as SO. That was to be contrasted with McClafferty where the man deemed to be the risk had continued unchallenged to live in household with the three children in question.
[39] Moreover, Ms Jack founded upon what she described as the sheriff’s finding in the present cases to the effect that there had been improper conduct towards NO in the form of inappropriate sexualised language. That contrasted with there having been no finding in McClafferty to the effect that there had been improper conduct at any time between the man in question and any of the appellant’s three children. (Of course, Ms Jack was forced to acknowledge the lack of any finding in fact made by the sheriff in the present cases).
[40] The use by the sheriff of the formulation “possible risk” was, submitted Ms Jack, to be contrasted with his own, judicial assessment of risk which he had required to carry out in his role qua sheriff, having heard the evidence and having been required to follow the approach set out in McClafferty. That formulation had been used by the sheriff in making reference to assessment of risk by third parties. Ms Jack maintained that the sheriff’s assessment of risk should only be interfered with where it was concluded on appeal that no reasonable sheriff, having heard the evidence, could have arrived at the same view.
[41] In his supplementary note, the sheriff had set out the key factors leading to his decision:
- SO’s historic behaviour;
- SO’s failure to co-operate with risk assessment;
- SO’s failure to stay away from the family home;
- No evidence that SO had taken steps to eliminate the risk;
- SO’s inappropriate sexual language towards NO;
- Lack of co-operation with services; and
- In respect of AM, her refusal to recognise the risks posed to the children by SO and her refusal to ensure that SO remained outwith the family home.
[42] In summary, Ms Jack argued that there had been no error of law or procedural irregularity. Merely because the sheriff might have reached a different conclusion on the evidence was not the test for the purposes of the present appeals. At the previous hearing, the submission advanced in support of the appeals had involved the proposition that, in the absence of the inappropriate language (there being no relevant findings in fact) historic issues were insufficient to justify the ground of referral being established. It was, submitted Ms Jack, clear that the sheriff viewed the inappropriate language as merely being a part of the “picture of concern”. She maintained that it was unnecessary for the court to include every adminicle of evidence as part of the statement of facts supporting any established grounds of referral. In the whole circumstances, Ms Jack renewed her submission to the effect that the appeals should be refused.
Discussion and decision
[43] Whilst, at the first hearing of these appeals, focus alighted upon the inappropriate sexual language referred to at paragraph [33] in the sheriff’s stated case, the submissions of senior counsel for AM at the continued appeal hearing indicated, correctly in my view, that the core feature in each case was the question of “risk”. I shall return to that issue shortly. However, at this stage, I prefer to set out, albeit briefly, my views in relation to the language or expressions attributed to SO in the evidence.
[44] The sheriff’s (supplementary) note dated 4 February 2015 confirms that whether within either stated case or within the amended statements of facts themselves, no finding in fact was made quoad remarks being made by SO regarding or towards the child NO. It appears that there had been no attempt on the part of the Reporter’s representative either to amend each statement of facts or to propose that the findings in fact in the stated cases be adjusted accordingly, all with a view to reflecting the evidence heard by the sheriff.
[45] The significance and use to be made of factual material placed in evidence was, to an extent, the subject of discussion in the case of TC v Authority Reporter 2014 FamLR 72. In effect, the decision in that case highlights the care which requires to be taken over any “factual matrix underpinning the proposition that the grounds of referral ought to be held established…” (see paragraph [24]).
[46] For present purposes, should it have constituted a material feature in the court’s decision-making process, the inappropriate sexual language ought to have been identified as such. From the Reporter’s perspective, it ought to have found its way into each statement of facts (see, for example, paragraph [25] in TC). From the court’s perspective, it ought to have found its way into the findings in fact in each stated case, although that would, in any event, have necessitated the sheriff being addressed by parties during closing submissions where, as I have already indicated, no such factual contention had appeared within the grounds for referral as supported by each statement of facts.
[47] As it is, the sheriff has accepted that it was an omission not to have included a finding in fact reflecting the evidence about the expressions used by SO. However, (in his note of 4 February) he states that the “…omission arose in circumstances where I was of the view that the evidence of past behaviour and the non-cooperation in further assessment (together with the finding about SO not remaining outwith the family home) provided a sufficient basis for the ground being established; the evidence of the remarks under consideration operated, in my view, to fortify that view.”
[48] In all the circumstances, for the purposes of determining these appeals, the evidence about expressions used by SO must, in my opinion, be left out of account. For it to have been properly taken into account there required to have been an established statement of fact or a finding in fact made by the sheriff. Of course, the foregoing passage from the sheriff’s note tends to suggest that, in any event, those remarks attributed to SO served, in the sheriff’s mind at least, to operate as no more than a “makeweight”. This was what I understood senior counsel for AM to refer to at the outset of her submissions when she contended that the terms of the sheriff’s note of 4 February, if anything, strengthened the argument in support of the appeals.
[49] In relation to the question of risk, paragraph [19] supra, sets out the proposition which lay at the heart of senior counsel’s main challenge to the sheriff’s decision, viz. either SO’s historical behaviour yielded the inference that a “significant or substantial risk” or a “real possibility” of repetition existed or, it did not. As a starting point, I accept the force of that proposition. Indeed, to all intents and purposes, Ms Jack, for the Reporter, did not appear to contest the legal propositions extrapolated by senior counsel from the court’s decision in McClafferty. Ms Jack did make an attempt to distinguish McClafferty from the present cases (see paragraph [38] supra). However, when it comes to the argument involved here any such distinction was of no real significance, in my judgement.
[50] Instead, Ms Jack relied upon certain key factors as supporting the sheriff’s decision (see paragraph [41] supra). It seems to me that the difficulty with that approach is that, whilst the first bullet point refers to SO’s historic behaviour (and given what I have said already the fifth must be left out of account), if at all, the remainder of the bullet points can only derive their legitimacy from the proven existence of a risk emanating from the historic behaviour.
[51] In circumstances where that behaviour took place at least 25 years ago and where it took place during SO’s adolescence, I do not accept the submission that, in the context of current referral proceedings, the behaviour gives rise to a prima facie contemporaneous risk, the nature and extent of which does not require to be established in evidence.
[52] That is, unfortunately, the basis upon which the sheriff proceeded. He recognised that the indecent behaviour on the part of SO had occurred a number of years ago. He determined that the absence of evidence that SO “had taken steps which had in some way resolved or eliminated the risk he presented” was a matter of relevance and significance. However, the sheriff’s approach presupposed that a risk existed in the first place. The onus lay with the Reporter in terms of establishing that risk as part of the ground of referral. One cannot avoid the impression that the sheriff overlooked that. He appears to have given no weight to the undisputed conclusion on the evidence that 25 years had elapsed during which time there had been no recurrence of the sort of behaviour in question.
[53] I agree with senior counsel’s submission to the effect that further assessment of SO along with any associated disinclination on his part to be assessed could only be relevant where the threshold test for intervention had been met. Moreover, it is, indeed, apparent from the sheriff’s note produced in February of this year that he did not regard any history of past behaviour in isolation as being sufficient basis for the ground being established. The non-cooperation in further assessment together with a finding about SO not remaining outwith the family home were the two additional ingredients which satisfied the sheriff that a sufficient basis existed for the ground being established.
[54] The sheriff’s rejection of the ground of referral arising from section 52(2)(b) also, to my mind, creates a significant difficulty. I agree with senior counsel’s contention that rejection of the “moral danger” ground was inconsistent with a “significant or substantial risk” or a “real possibility” that SO would subject the children to sexual misconduct of some form. However, the recognition of what senior counsel characterised as a further illogicality to the sheriff’s approach probably adds little to the main thrust of the appeals.
[55] In my opinion, the present cases point to the importance of the threshold test for intervention when it comes to protection for families against unwarranted intrusion by the state. I respectfully associate myself with the observations of Baroness Hale. “There must be a clearly established objective basis for such interference.” (See In re J supra at 730H).
[56] Dealing with “likely” in section 52(2)(c), I agree with the proposition that it means likely “in the sense of a real possibility, a possibility than cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” (per Lord Nicholls of Birkenhead, In re H [1996] AC 563 at 585F). That proposition is the second of three “important propositions” mentioned by Baroness Hale at 723C‑D. She also referred to the third, again taken from the speech of Lord Nicholls:
“A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom”. (In re H at 590A); unresolved judicial doubts and suspicions “can no more form the basis of a conclusion that the second [likelihood of harm] threshold condition…has been established than they can form the basis of a conclusion that the first [present harm] has been established.” (589E).
[57] The events of the distant past when fed into a process of inductive reasoning (see McClafferty, paragraph [14] supra) in the present cases ought to have been insufficient to draw the inference that a significant or substantial risk presented itself to the court via the risk assessment undertaken on the basis of the available evidence. Strictly speaking, there were no “present facts” from which the sheriff might have drawn such an inference. Moreover, where, in the stated case, the language descriptive of any risk was variable and where the sheriff also appears to have accepted the evidence about the unknown risk presented by SO (see paragraph [33]) the sheriff, in my opinion, found himself firmly within the territory of “unresolved judicial doubts and suspicions” which Lord Nicholls had warned against.
[58] All of the foregoing, is sufficient to determine the outcome of these appeals. I am satisfied that the sheriff has erred in law particularly in relation to his application of the threshold test. I would simply add by way of deference to the careful submissions advanced by senior counsel for AM that I also agree with the proposition that any facts said to have been established must be relevant and sufficient to demonstrate the existence of a significant or substantial risk not only on domestic law grounds but also for the purposes of article 8 of ECHR. Baroness Hale observed that without a clearly established objective basis for interference by the state “…there would be no ‘pressing social need’ for the state to interfere in the family life enjoyed by the child and his parents which is protected by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
[59] In the whole circumstances, I have acceded to the various motions made by senior counsel at the outset of the appeal hearing. In the event of the appeal in each case being allowed there was, as I understood matters, no suggestion that the court should approach matters in any other way. The section 52(2)(c) ground of referral will remain established (albeit to a limited extent viz. on the basis of statements of fact (1) to (7)) for KR while in respect of NO, the application to have grounds established, dated 5 December 2013, requires to be dismissed. As senior counsel pointed out, NO’s referral rests on grounds established on 28 June 2013. A separate basis of referral could not be established on the basis of statements of fact 1 to 3 within the December 2013 application. (See paragraph [4.2] in senior counsel’s written submissions).