KH AGAINST CHILDREN'S REPORTER
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2016] SC GLA 18
SW3641/14
JUDGMENT OF SHERIFF PRINCIPAL C A L SCOTT, QC
In the cause
K H
Pursuer;
Against
CHILDREN’S REPORTER
Defender:
Glasgow, 3 March 2016.
The sheriff principal, having resumed consideration of the appeal, answers questions 1, 3 and 4 in the stated case in the affirmative with question 2 being answered in the negative; refuses the appeal; and remits the case to the sheriff with the direction that, in turn, the case be remitted to the children’s hearing.
NOTE:-
Introduction
[1] This appeal is brought by KH, the maternal grandmother of the child IM. It is brought under section 163(1)(a) of the Children’s Hearings (Scotland) Act 2011. Grounds for referral were held established by the sheriff, after proof, on 29 July 2015. EM is the mother of the child, IM. EM had accepted amended grounds in their entirety. The safeguarder involved had also accepted those grounds.
[2] After proof, and subject to further amendment of the supporting facts, the sheriff held that the ground under section 67(2)(e) of the 2011 Act had been established. He found in fact and law that IM was likely “…to be exposed to KH and RM whose conduct is or has been such that she will be abused or harmed, or her health, safety or development will be seriously adversely affected.”
[3] Before the sheriff, the reporter sought to establish the section 67 ground having regard to (a) the evidence of a social worker, Deborah Stark; (b) a joint minute of admissions agreeing certain adminicles of evidence; and (c) discrete grounds for referral which had been established on 13 June 2012 quoad the child’s mother EM and her siblings. In that connection, the sheriff, when considering the present case of IM, made certain findings which followed from the decision of Sheriff Mackenzie in the case of the mother, EM, and her siblings.
[4] RM is EM’s stepfather. For present purposes, there was no dispute that, in February 2009, RM had assaulted EM by head-butting her. At or about the same time, RM had also assaulted one of EM’s siblings.
[5] In his decision dated 13 June 2012, inter alia, Sheriff Mackenzie found that inappropriate and sexualised behaviour on the part of EM and her sister was the result of their having suffered serious harm to their development due to one or more of (a) having been sexually abused; (b) having witnessed sexual activity; or (c) having been exposed to inappropriate sexual materials. For the avoidance of doubt, there was no suggestion that either KH or RM had been directly involved in any of (a) to (c) supra.
[6] In the facts said to support the section 67 ground in IM’s case, the reporter averred that the behaviour of EM and two of her siblings, all as referred to in the findings in fact made in Sheriff Mackenzie’s decision, had been “…caused or materially contributed to by failure on the part of their parents KH and RM to consistently meet their emotional needs.” (See statement of fact 8(e)).
[7] Statements of fact 9, 10 and 11 (all of which were held established by the sheriff in IM’s case) were in the following terms:
“9. RM behaves in a controlling manner towards EM and KH. EM is fearful of RM due to his controlling manner, the incident of physical assault described in Supporting Fact 8(b) and her experiences while in his care. KH has been and continues to be unable to protect EM from RM and to a great extent facilitates his on-going involvement and knowledge of EM’s life by regularly sharing information with him regarding EM’s circumstances. KH’s volatility, particularly toward social workers, indicates an indifference to the welfare of EM and IM and has caused EM emotional harm.
10. The conduct of KH and RM as detailed in Supporting Facts 8 and 9 is such that it is likely that IM will be abused or harmed or her health, safety or development will be seriously adversely affected should she be exposed to them.
11. EM is a vulnerable young person who continues to have regular contact with KH and RM. Given the on-going contact, it is likely that IM will be exposed to KH and RM. EM cannot keep IM safe from KH and RM without support.”
[8] By way of a child protection order granted on 29 July 2010, EM (and her siblings) had been taken into care. EM returned to live with her mother, KH, at a flat in Glasgow on 25 June 2013. More recently, following the birth of IM on 10 November 2014, IM and EM have resided at other accommodation.
[9] It will be seen, therefore, that, to a large extent, in finding the section 67 ground (in IM’s case) to be established, the sheriff was invited to and did place significant reliance upon the establishment, in turn, of the grounds involving EM and her siblings all of which had been determined by Sheriff Mackenzie in June 2012.
[10] The present appeal was substantially taken up with the sheriff’s rationale for placing reliance upon the earlier findings quoad EM and siblings and for using those findings as a foundation for the establishment of grounds in the case of IM.
Submissions for the appellant, KH
[11] At the outset, Mr Allison for KH, indicated that questions 5, 6 and 7 in the stated case were not insisted upon in the sense that they were, in reality, superfluous to his requirements. However, he did insist upon the remaining questions posed and, for the purposes of his argument, began with questions 3 and 4 taken together.
[12] Question 3 concerned whether the sheriff had applied the correct test for the purposes of section 67(2)(e) of the 2011 Act. Mr Allison foreshadowed his continuing submissions by indicating that, to his knowledge, there were no reported cases “expressly” concerning this ground for referral. In any event, he submitted that there were four components, viz. exposure, conduct, causation and effect or consequence.
[13] It was accepted on behalf of KH that a prospective test was involved. Mr Allison made reference to Professor Norrie’s work on Children’s Hearings in Scotland (3rd Edition) at paragraph 3-14. Mr Allison contended that the absence of any of these four components was fatal for the purposes of establishing the ground in question.
[14] In regard to exposure, it was argued that there must be actual exposure failing which a basis to conclude that a likelihood of exposure existed. Reference was made to the case of M v McClafferty [2007] CSIH 88 at paragraph 9. Mr Allison maintained that the stated case contained no material tending to show that the sheriff had carried out the appropriate risk assessment. Mr Allison suggested that, as at the date of proof, KH was having no contact with the child IM. He pointed to paragraph [12] in the sheriff’s note which, indeed, tended to confirm that KH had had no involvement with her grandchild, IM.
[15] When it came to the second component, viz. conduct, Mr Allison pointed out that there were no findings in the 2012 decision by Sheriff Mackenzie to the effect that KH knew or ought to have known about the sexual abuse or the children’s exposure to sexual activity or material. Mr Allison focused particularly upon Supporting Fact 8(e) and argued that there was no proper basis, at least on a reading of the stated case, for its having been found established. In general terms, Mr Allison criticised the sheriff’s stated case as “laconic” in its analysis of the application of the law to the facts of the case.
[16] Where the alleged failure on the part of KH and RM was being linked to the previous grounds for referral concerning EM and her siblings, Mr Allison maintained that there required to be evidence (for the purposes of the referral relating to IM) to demonstrate by what means and in what way the previous alleged failure translated to conduct presently likely to have adverse consequences for the child, IM.
[17] As far as the third component, causation, was concerned, Mr Allison contended that the sheriff had overlooked this component in the course of his deliberations. In other words, the sheriff had failed to confront the need for a colourable link between any perceived conduct towards IM and the actual consequences for IM. There was, submitted Mr Allison, nothing in the stated case to explain how that link had been made out.
[18] For the purposes of his argument, Mr Allison sought to found upon passages taken from a number of authorities, viz. In the matter of A (A Child) [2015] EWFC 11 at paragraph 12; In re B (A Child) [2013] UKSC 33 at paragraph 193; In the matter of J (Children) [2013] UKSC 9 at paragraphs 50 to 54; In the Matter of Y (A Child) at page 3, paragraph 7; and M v McClafferty supra at paragraph 10. With regard, particularly, to the latter, Mr Allison submitted that the absence of the necessary link was even clearer in the present case.
[19] Turning to the final component, viz. consequence, Mr Allison once again referred to the case of In re B (A Child) supra and to what, in effect, was the checklist set out by Baroness Hale at paragraph 193. Mr Allison pointed to the fact that the court was enjoined to “…identify why and in what respects the harm is significant”. In the present instance, the sheriff had neither analysed nor reached a conclusion regarding the issue of whether any risk of sexual abuse or exposure affecting IM might be due to contact with or exposure to her grandmother KH. There had, submitted Mr Allison, been no attempt on the part of the sheriff to identify and articulate within his stated case what the actual nature and extent of the harm amounted to.
[20] Reference was also made to the case of In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at paragraph 50 and to D v Kelly 1995 SC 414 at page 419.
[21] Accordingly, in regard to questions 3 and 4 in the stated case, it was submitted on behalf of KH that the sheriff had failed to apply the correct test (see question 3) and that, in any event, his findings in fact were insufficient to entitle him to hold the ground for referral established. (See question 4).
[22] Questions 1 and 2 concerned the sheriff’s decision to allow an amendment to be made to the Supporting Facts once the evidence had been concluded and at the stage of closing submissions. As I understood matters, the amendment incorporated the following averment:
“KH’s volatility, particularly toward social workers, indicates an indifference to the welfare of EM and IM and has caused EM emotional harm.”
[23] It was submitted on behalf of KH that the sheriff had erred in the exercise of his discretion by allowing the amendment particularly at such a late stage in the proceedings notwithstanding the fact that the substance of the amendment was said merely to coincide with evidence which had emerged in the course of the proof. Mr Allison complained that his client had suffered prejudice through a lack of fair notice. The reporter had already been afforded one opportunity to amend the written case at the outset of the proof. Accordingly, Mr Allison argued that, for the reporter to be allowed to do so in the course of submissions and where there had been no notice, amounted to an illegitimate approach on the part of the court. The procedure referred to in my decision in the case of TC v Authority Reporter 2014 Fam.LR 72 ought to have been adhered to. In the circumstances, the sheriff’s decision to allow the amendment amounted to a violation of KH’s article 6 right.
Submissions for the reporter
[24] Mr Guy, for the reporter, invited the court to answer the questions posed in the stated case, viz. questions 1, 3 and 4, in the affirmative with question 2 being answered in the negative. The court was invited to refuse the appeal and to remit the case to the children’s hearing under section 163(10) of the 2011 Act.
[25] Mr Guy, at the outset, made reference to the cases of C v Miller 2003 SLT 1379 (particularly at paragraphs 71 and 79) and S v Locality Reporter Manager 2014 Fam.LR 109 (particularly paragraphs 36 and 40). As I understood his submission, his purpose in doing so was to highlight certain propositions, viz. that for the appeal to be allowed, the justice of the proceedings required to have been damaged; that the appeal could not involve a general review of the sheriff’s factual decisions; that an appellate court required to proceed on the basis of the sheriff’s findings in fact unless it could be shown that the presence or absence of a critical finding was the product of error of law or irregularity; and that the written reasons set out in a stated case did not require to be an elaborate formalistic product of refined legal draughtsmanship.
[26] With regard to the third question posed in the stated case, Mr Guy acknowledged that there appeared to be no reported authority as to how the test under section 67(2)(e) of the 2011 Act was to be applied. However, he accepted that previous authorities under the old legislation might be of some assistance when construing the language and effect of the previous statute. Mr Guy specifically agreed with the summary provided by Professor Norrie at paragraph 3.14 all as referred to supra.
[27] On behalf of the reporter, it was accepted that the stated case could not be described as containing a detailed, in-depth analysis of the inferences to be drawn from the facts held established. Nevertheless, Mr Guy maintained that the sheriff’s findings in fact were critical to the determination of the appeal. In his submission, the findings in fact contained sufficient material to enable this court to conclude that the sheriff had, indeed, applied the correct test when it came to the section 67(e) ground.
[28] Whilst Mr Allison had founded upon the absence of contact as between KH and IM, Mr Guy explained that an interim compulsory supervision order expressly prohibited such contact together with contact between IM and RM. Accordingly, as matters stood, KH and RM could not lawfully procure contact with IM.
[29] In response to the contention that KH and RM were no longer in a relationship and had enjoyed no contact since 2010, Mr Guy informed the court that their liaison had, in fact, produced two further children since 2010.
[30] The Non-Offending Carer’s Risk Assessment (NOCRA) was founded upon as having been incorporated brevitatis causa within the sheriff’s findings. It was argued that the NOCRA demonstrated that the behaviour of RM continued to have a direct effect upon EM or an indirect effect through KH.
[31] It was suggested that Mr Allison’s focus had been exclusively or largely directed towards the question of sexual abuse. Mr Guy stressed that such abuse was not the sole basis upon which the ground for referral had been advanced by the reporter. However, he maintained that any continuing connection to RM brought with it a potential exposure to the features which Mr Allison had sought to distance his client from and that any connection with KH carried with it a similar potential. Mr Guy founded upon what he described as recent and unhealthy contact between EM and RM and submitted that “RM was still on the scene”.
[32] Returning to the test to be applied, Mr Guy pointed to certain particular findings in fact, viz. 7, 8, 14 and 16. In his submission, it was quite clear from the findings that past events relating to RM readily supported the establishment of the ground. Moreover, that proposition was correct even when any issue of sexual abuse was left out of the equation. It was contended that RM could not be regarded as someone who did not pose a risk to the child IM, looking to the whole circumstances of the case. The continued controlling behaviour and harm emanating from RM provided tangible evidence that any continued contact was likely to have the consequences envisaged by section 67(2)(e). However, it was not, submitted Mr Guy, incumbent upon the sheriff to specify exactly what the detail of that harm might amount to.
[33] In any event, as regards KH, there remained a sufficient basis in the sheriff’s findings in fact, for instance, due to her failure to, as Mr Guy put it, “ward off” RM. Therefore, there was a likelihood of harm both to EM and IM, once again, given the spectre of RM. Mr Guy characterised KH as being the “conduit” whereby RM could “get to” EM and IM. Even allowing for the fact that KH was not IM’s principal carer, there was a clear basis for KH and RM being the source of harm.
[34] The sheriff had, of course, made an express finding regarding KH’s volatility towards social workers. Taking matters in the round, Mr Guy maintained that the sheriff had applied the correct test in holding that the ground for referral had been established. It was not now open to this court, on appeal, to interfere with the sheriff’s findings in fact.
[35] When it came to the sheriff’s decision to allow amendment of the supporting facts, Mr Guy referred to my decision in the case of TC v Authority Reporter supra. He commended the sort of procedure referred to in paragraph [29] therein. However, Mr Guy pointed out that, in the present case, the amendment in question having been allowed in order to reflect the evidence in the case, Mr Allison made no further submission regarding additional procedure such as the need for further evidence to be led on behalf of his client (see paragraph [17] in the stated case). Mr Guy stressed that, in any event, the welfare of the child was the paramount consideration when it came to proceedings of this nature. In any event, he argued that the circumstances in which the brief amendment to the supporting facts was allowed by the sheriff were not material to the overall outcome of the referral proceedings.
Reply for KH
[36] In reply, Mr Allison suggested that the submissions advanced on behalf of the reporter in the appeal were tantamount to a re-writing of the stated case. The terms of the NOCRA had not been the subject of agreement on behalf of KH and, therefore, the sheriff’s reliance upon that document was of very limited value. The basis for its “incorporation” into his findings was also challenged by Mr Allison. In evidence, the witness, Deborah Stark, had only been taken to a handful of “choice references” within the document. Mr Allison also referred to the terms of the Practice Note number 1 of 2015 at paragraph 4.21, ie “No party will be allowed to lead evidence or to follow a substantive line of examination not previously disclosed to other parties and the court, except with leave of the court on cause shown.” He contended that fairness had not been achieved. Finally, on the hypothesis that the court were to find favour with the reporter’s submissions regarding the significance of RM in terms of potential harm etc, Mr Allison, nevertheless, invited the court to excise reference to his client, KH.
Discussion
[37] When it comes to the court’s decision to hold that the section 67(2)(e) ground was established, given the sheriff’s findings in fact, I do not consider that there is any merit in the contention that the “…is being, or is likely to be, exposed…” part of the “test” has not been met. On the facts found by the sheriff, the child’s mother, EM, has obviously been exposed to both KH and RM.
[38] There is a likelihood that such exposure will continue. As at the date of the proof, IM was approximately 8½ months old. IM has resided with her mother, EM, since 24 November 2014.
[39] It is, to my mind, unarguable that a likelihood of exposure as between IM and KH (and, in turn, RM) does not exist. The inference that a future likelihood of exposure (of IM) to KH is not negated by KH’s lack of involvement with IM to date.
[40] In any event, where a maternal grandmother challenges the establishment of grounds for referral, it is to be assumed that her motivation in doing so, flows from a desire to avoid state interference with her ability to have contact with the child or, put another way, to gain a measure of exposure to the child. Such an “interested person” (if that is what she be) cannot legitimately found upon lack of exposure where her involvement in the proceedings seeks to procure exposure.
[41] Regarding conduct, Mr Allison’s submissions were, I fear, misguidedly absorbed with the court’s decision in 2012 regarding sexual abuse or exposure to sexual activity or material. It is correct that Sheriff Mackenzie’s findings do not admit of overt conduct on the part of either KH or RM. However, in the present case, the sheriff found that the behaviour of EM and two of her siblings, all as referred to within Sheriff Mackenzie’s findings in fact, was caused or materially contributed to by the failure on the part of their mother, KH and stepfather, RM to consistently meet their emotional needs. (See finding in fact 13).
[42] In any event, as Mr Guy submitted, I have concluded that the findings in fact in the present case do, indeed, contain sufficient material pointing to a correct application of the criteria required for the court to hold the section 67(2)(e) ground established. In my view, findings in fact 7, 8, 14, 15 and 16 all support the proposition that conduct founding the ground of referral has been established. Moreover, for the avoidance of doubt, these findings concern conduct on the part of both KH and RM.
[43] As Professor Norrie indicates at paragraph 3-14 in his work on Children’s Hearings in Scotland, the nature of the conduct is governed by the harm that is likely to befall the referred child. In the instances of the findings in fact referred to supra, the conduct embraces physical violence inflicted upon his children by RM; the failure (by KH and RM) to provide an acceptable level of care and protection for their children; controlling behaviour by RM towards EM and KH; a climate of fear created by RM; the failure by KH to protect EM from RM; facilitation (by KH) of RM’s ongoing involvement and knowledge of EM’s life; and volatility towards social workers on the part of KH giving rise to her indifference regarding the welfare of EM and IM, thereby causing EM emotional harm.
[44] For completeness, when it comes to the third component identified by Mr Allison, I agree with Professor Norrie’s observation that:
“The purpose of this ground is to protect the child from people whose conduct either directly or indirectly creates a risk of harm: if the child has already been harmed then another ground would be more appropriate.”
[45] An analysis of the sheriff’s findings in fact (which, of course, were largely unchallenged on appeal) indicates that not only is there a colourable link between the direct or indirect conduct of KH and RM and a risk of harm to IM; that link, in my opinion, is an obvious one.
[46] Fourthly, and given the factual matrix to which I have referred at paragraph [43] supra, I have little difficulty in holding that the factual material available to the sheriff was nothing other than compelling when it came to consideration of the consequential risk of harm likely to befall IM. The factual material arguably speaks for itself in giving rise to such an inferential risk of harm. In weighing up the material the sheriff was well entitled to conclude, as he did, that the child IM would likely be harmed or that the child’s health, safety or development would be seriously adversely affected by exposure to KH and RM.
[47] Therefore, I have answered questions 3 and 4 in the stated case in the affirmative. To that extent, the appeal, in my view, is without merit.
[48] As regards questions 1 and 2 in the stated case, I observe, firstly, that the case of TC v Authority Reporter requires to be distinguished on its particular circumstances. In that case, the sheriff made additional findings in fact all without the parties to the case having been afforded an opportunity to make submissions concerning such findings.
[49] The procedure adopted by the sheriff in the present case is recorded at paragraphs [13] to [17] in the stated case. Once the evidence had been heard and at the conclusion of the reporter’s submissions, the sheriff was invited by the reporter to make certain amendments to supporting facts 9 and 11. The proposed amendments were accepted by the safeguarder and by the solicitor acting for the child’s mother, EM.
[50] The sheriff records at paragraph [16] that the amendments proposed by the reporter were opposed on behalf of KH, firstly, because they were prejudicial and, secondly, because they were not based on fact. Thereafter, at paragraph [17] the sheriff narrates that he allowed the amendments since they had been spoken to by the witness, Deborah Stark and were contained within the NOCRA. The sheriff proceeded on the basis that the amendments were in accordance with the facts heard and that it would not be prejudicial to give effect to the amendments at that particular stage in the proceedings.
[51] In the course of the proof, no evidence was led on behalf of KH and, in particular, KH herself was not called to give any evidence. The sheriff having announced his decision to allow the amendments proposed by the reporter, it is plain that KH’s solicitor then had the opportunity to seek to re-open the proof all with a view to leading evidence in rebuttal of the factual material contained within the amendments. No submission to that effect was made.
[52] I do not consider that the foregoing circumstances surrounding the amendment procedure in the course of submissions constituted an illegitimate approach on the part of the court. Whilst it may have been unfortunate that the factual material to be the subject of amendment had not been incorporated into the original grounds for referral, it was a motion which the reporter was entitled to make at that stage; the proposed amendment was designed to reflect evidence already led and uncontroverted by or on behalf of KH; neither the safeguarder nor the solicitor representing EM tabled any opposition to the proposed amendment; and the sheriff was, therefore, perfectly entitled to consider and determine the motion subject always to having heard parties’ submissions thereon.
[53] The court’s determination to the effect that the amendment should be allowed may not have found favour with KH or those representing her, but it does not follow that the decision was unfair or that it amounted to a violation of article 6. KH and her solicitor had the opportunity during the course of the proof to contradict, rebut or otherwise challenge the evidence given by the witness, Deborah Stark. Even where a failure to do so was informed by a lacuna within the grounds for referral, where the lacuna had been addressed by way of the motion for amendment in the course of submissions, it would still have been open to KH and her advisers to seek to lead evidence at that point on the footing that they required to deal with material led in the course of the proof in respect of which no prior notice had been given. That opportunity was not taken up and, therefore, I consider that the sheriff’s handling of the amendment procedure was beyond proper challenge. It follows that question 1 in the stated case (although, perhaps, not entirely commensurate with the thrust of Mr Allison’s submissions on appeal) has been answered in the affirmative and that question 2 has been answered in the negative.
[54] All that said, I should stress that there was, in my opinion, ample material for the section 67(2)(e) ground to be established even without the court having regard to the material concerning KH’s volatility, particularly towards social workers etc. Furthermore, whilst Mr Allison’s submissions concerning questions 3 and 4 in the stated case tended to focus unduly upon issues surrounding sexual abuse (and I have now determined that such issues did not per se require to be established for the purposes of the referral) I am inclined to the view that, given Professor Norrie’s observations at paragraph 3-14, such material, emanating from the findings made by Sheriff Mackenzie in the earlier referral, might well also be relevant. As Professor Norrie points out at page 48:
“However, there is no implication that parental failure is necessary for this ground: a child might be exposed to dangerous persons or by friends or relatives who have no parental responsibility towards the child: it is exposure rather than parental failure that underlines this ground.”
[55] Accordingly, the appeal has been refused. As I noted it, Mr Guy, for the reporter, in that eventuality, invited me to remit the case to the children’s hearing under section 163(10) of the 2011 Act. However, under that sub-section, it appears that the sheriff principal is constrained to remit the case to the sheriff “for disposal in accordance with such directions as the court may give”. Having done that, it seemed to me that the only appropriate direction to make was for the sheriff, in turn, to remit the case to the children’s hearing for a disposal.