ANNE MARIE MCGINLEY AGAINST IN & RN
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
SWA604/15
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
Anne Marie McGinley
Appellant
against
IN & RN
Respondents
Glasgow, 19 August 2015.
The sheriff principal, having resumed consideration of the appeal, allows same; answers questions 1 and 2 posed in the stated case in the affirmative with question 3 being answered in the negative; recalls the sheriff’s interlocutor dated 26 February 2015; and remits the case to the sheriff with a direction that the decision of the children’s hearing made on 19 December 2014 be confirmed subject to the compulsory measure of supervision continued by the children’s hearing on said date being treated as if it were a compulsory supervision order under the Children’s Hearing (Scotland) Act 2011.
NOTE:-
[1] At the conclusion of her stated case, the sheriff set out what were, in her view, the appropriate questions for consideration in the context of this appeal. The first question was in the following terms:
“1. Did I err in law in deciding that the decision of the Children’s Hearing on 19 December 2014 was not justified in all of the circumstances as the Hearing considered the issue of compulsory measures of care for the child in terms of the Children (Scotland) Act 1995 rather than the Children’s Hearing (Scotland) Act 2011?”
[2] On behalf of the reporter, Mr Dickson, in advancing the appeal, urged the court to answer that question in the affirmative. In doing so, he invited the court to consider the test set out by an Extra Division of the Inner House in the case of C v Miller 2003 SLT 1379. In particular, he referred to the following passages from paragraph [71] within the opinion of the court:
“The words ‘…any irregularity in the conduct of the case…’ are, of course, to be found in section 51(11) of the Children (Scotland) Act 1995. Before coming to consider whether such an irregularity has occurred in the context of this case, it is appropriate to reach a view on the scope of the concept of irregularity in this context. In Children’s Hearings in the Sheriff Court, Kearney, (2nd ed), at para 49.07 it is said: ‘For an appeal based on such grounds to succeed, however, it would seem that the defect must be ‘material’ in the sense of causing real prejudice to the person affected by the irregularity or, presumably, to the interests of the child.’
We consider that that passage properly describes what is intended in the legislation. It appears to us that, before an irregularity in the conduct of the case could found a successful appeal, it would be necessary for it to be shown that the occurrence concerned was damaging to the justice of the proceedings.”
[3] Mr Dickson submitted that for an appeal to the sheriff in this context to be successful, it required to meet the test set out by the court in the case of Miller. At the same time, Mr Dickson invited the court to reflect upon the appeal provisions contained within section 51 of the 1995 Act. In particular, under section 51(1)(a) any decision of a children’s hearing might be appealed to the sheriff within a period of 3 weeks beginning with the date of any such decision. In terms of section 51(4) where the sheriff decided that an appeal under section 51 had failed, he was required to confirm the decision of the children’s hearing. Section 51(5), inter alia, set out certain options available to the sheriff should he allow an appeal against the decision of a children’s hearing. Section 51(11) provided for an appeal to the sheriff principal from a decision of the sheriff quoad an appeal under section 51(1) of the Act and section 51(13) indicated that any such appeal to the sheriff principal required to be made within a period of 28 days beginning with the date of the decision appealed against.
[4] Mr Dickson informed the court as to the procedure which had taken place prior to the issue of the sheriff’s interlocutor dated 26 February 2015. The reporter had originally sought to have grounds of referral established by way of an application under the 1995 Act. The Children’s Hearing (Scotland) Act 2011 had come into force on 24 June 2013. On 8 August 2013, grounds of referral had been established. The matter was remitted back to the children’s hearing and on 28 August 2013 the hearing made a supervision requirement under the 1995 Act. The hearing’s decision was appealed to the sheriff. On 21 October 2013 the reporter conceded that the appeal should be allowed. The sheriff remitted the case back to the children’s hearing to have them reconsider their decision. The children’s hearing convened on 23 January 2014. Mr Dickson submitted that the language of the decision was such as to give rise to an inference that both the 1995 Act and the 2011 Act had been held under consideration. However, in the event, a supervision requirement had been made under the 1995 Act. That decision was then the subject of two separate appeals under each statute. The appeals called on 6 March 2014 and, once more, the reporter conceded that the appeals should be allowed. The interlocutor from that date referred to the 2011 Act. The next substantive children’s hearing took place on 19 December 2014 and the hearing continued the supervision requirement under the 1995 Act.
[5] The Children’s Hearing (Scotland) Act 2011 (Transitional, Savings & Supplementary Provisions) Order 2013 was made to govern the transition between the provisions of the respective statutes. To put matters in context for present purposes, it will be seen from paragraph [16] of the stated case that the sheriff in determining the appeal brought to challenge the decision of the children’s hearing from 19 December 2014, took the view that once the interlocutor dated 21 October 2013 had been pronounced, “relevant proceedings” in terms of the 2013 Order had concluded. Accordingly, the sheriff held that the existing supervision requirement made on 28 August 2013 fell to be treated as if it were a compulsory supervision order under and in terms of the 2011 Act having regard to the effect of article 7 of the 2013 Order. That decision was challenged by Mr Dickson as being incorrect. He maintained that the proper approach involved the acceptance that the allowance of the appeal by the sheriff (by way of concession on 21 October 2013) under section 51(5) did not equate to the conclusion of relevant proceedings. Instead, according to Mr Dickson’s submission, whilst the “appeal” may have been “allowed” by the sheriff, following a remit to the children’s hearing under section 51(5)(c)(i), it did not come to an end until the hearing had reconsidered their decision. More particularly, relevant proceedings in terms of article 1(4)(b) of the 2013 Order would not be concluded until 3 weeks after 23 January 2014 (ie the period allowed for an appeal to the sheriff) under section 51(1)(a)).
[6] Mr Dickson’s analysis as to when an appeal to the sheriff had come to an end was contested on behalf of the respondents in the present appeal. It was argued that the reporter’s construction regarding the finality of the appeal was simply wrong. The merits of an appeal to the sheriff under section 51 fell to be determined by none other than the sheriff. It could not be said that the “reconsideration of their decision” by the children’s hearing played any part of the appeal procedure before the sheriff. The allowance of the appeal meant exactly that and it also signified that the appeal itself had no further to go. Mr Murphy for the child’s grandfather also pointed out that those parties convened for the purposes of the children’s hearing differed materially from the parties to the appeal hearing before the sheriff. Therefore, it had to be accepted as procedure which was entirely distinct from the appeal and followed separately upon the determination of the appeal.
Decision on conclusion of relevant proceedings
[7] In my opinion, the plain and intuitive construction to be placed upon an appeal being allowed by the sheriff under section 51(5) of the 1995 Act is that the appeal is thereby rendered at an end. An appeal under section 51 subjects the decision of the children’s hearing to judicial scrutiny by the sheriff. Stating the obvious, the hearing of the appeal and “deciding the appeal” (see section 51(3)(c) and (4)) are part of a judicial process, whereas reconsideration of a decision by the children’s hearing is not and never can be part of that judicial process. Accordingly, I agree with the submissions advanced on behalf of the respondents. For the reporter’s argument to have prevailed it would have required the application of a stretch of imagination too far and which, in any event, could not be permitted by a common sense reading of the statutory provisions.
[8] The sheriff proceeded on the basis that the supervision requirement became a compulsory supervision order as at 21 October 2013 (via article 7 supra). In the event, and well before the children’s hearing which took place on 23 January 2014, a transition to 2011 Act procedure had been effected. Moreover, in terms of article 8, the compulsory supervision order (created under article 7) fell to be treated as if it had been made on 28 August 2013 being the date upon which the supervision requirement had been imposed under the 1995 Act.
[9] It is pertinent to mention that the court’s interlocutor of 6 March 2014 specifically proceeded under and in terms of section 156(3)(a) of the 2011 Act. Given the reporter’s subsequent stance on procedure, had that interlocutor been viewed as being incorrect, it ought to have been the subject of immediate challenge or of an appeal. In the event, neither course was pursued by the reporter. The terms of that interlocutor are in direct conflict with the approach which the reporter seems to have taken when it came to the hearing on 19 December 2014. (See paragraphs [19] and [20] in the stated case).
C v Miller
[10] All that said, there is a wider, more important issue to be considered before the first question in the stated case can properly be answered. Having determined that the decision of the children’s hearing on 19 December 2014 was not justified in all the circumstances of the case (see section 51(5) of the 1995 Act) the sheriff was thereby bound to allow the appeal. However, as I understood Mr Dickson’s submissions, even if the court were to find against him on the conclusion of relevant proceedings point, it was still open to the court to hold that the sheriff had erred in allowing the appeal.
[11] At the appeal hearing on 26 February 2015, the sheriff was advised that the reporter had taken a conscious decision to the effect that the children’s hearing on 19 December 2014 should be conducted in terms of the 1995 Act. (See paragraph [20] in the sheriff’s note). All that being so, the sheriff went on to observe that the procedural approach taken by the reporter was neither an oversight nor a mistake. She then concluded that it was not a procedural irregularity.
[12] For my part, where the disposal pronounced by the children’s hearing on 19 December 2014 erroneously made reference to a (1995 Act) supervision requirement instead of the 2011 Act compulsory supervision order, that amounted to a procedural irregularity no matter how the disposal came to be arrived at. The existence of a procedural irregularity is not excluded simply because it may have resulted from a deliberate course of conduct.
[13] At the heart of Mr Dickson’s submissions lay the proposition that the procedural irregularity affecting the children’s hearing disposal on 19 December 2014 was not damaging to the justice of the proceedings and that, as such, it could not found a successful appeal to the sheriff (C v Miller supra).
[14] Reference was also made to the following passages within Professor Norrie’s 2nd edition of his work on Children’s Hearings in Scotland at page 213:
“…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”. (Per Sheriff Principal Nicholson in W v Schaffer 2001 SLT (Sh Ct) 86 at 87K - 88A); and at page 214:
“However, before the appeal can be upheld, the irregularity must be such that it has a material effect on the conduct of or outcome of the case, or such that it materially prejudices the child or relevant person. A failure, for example, on the part of the chairman to check a toddler’s age is unlikely to render the decision ‘not justified in all the circumstances of the case’. In McGregor v A the irregularity was constituted by the statement of the grounds of referral mentioning the wrong statute: there was held to be no prejudice and therefore the decision of the children’s hearing was upheld. The court of session, in the context of an appeal against a decision of a sheriff, has held that for an irregularity to found a successful appeal, it is necessary that the occurrence was damaging to the justice of the proceedings, and this is likely to be true also in relation to proceedings before a children’s hearing.”
Mr Dickson observed that these passages were, in substance, replicated in the 3rd edition of Professor Norrie’s work which concerned itself with the provisions of the 2011 Act.
[15] Once again, the reporter’s approach to the consequences of the procedural irregularity associated with the children’s hearing disposal on 19 December 2014 was contested on behalf of the respondents. Counsel for the children’s mother appeared to proceed on the basis that the allowance of the appeal by the sheriff was beyond dispute and that the main issue for consideration concerned the way in which the second question in the stated case fell to be answered. Counsel submitted that any ultra vires act per se merited the course taken by the sheriff under section 51(5)(c)(ii), ie a discharge.
[16] Reference was made to Kearney at paragraph 45.08. Mr Murphy associated himself with counsel’s contention that the first question in the stated case ought to be answered in the negative. Mr Murphy highlighted the fact that the court’s interlocutor of 6 March 2014 had not been the subject of challenge by the reporter and submitted that such a failure constituted a real difficulty as far as the appeal was concerned.
Questions in the stated case
[17] Retaining a proper focus upon the main issue thrown up by the first question in the stated case, viz. whether the procedural irregularity vitiated the decision of the children’s hearing, it is helpful to reflect upon what is raised within the third question in the stated case. The sheriff held that the disposal arrived at by the children’s hearing on 23 January 2014 was a continuation of a compulsory supervision order (2011 Act).
[18] In the course of this appeal, I was, from time to time, invited to peruse the inventory of documents for the reporter. The paperwork relating to the children’s hearing on 23 January 2014 set out, inter alia, the reasons for the decision taken by the hearing. It also includes a copy of the actual disposal by the children’s hearing which is headed up:
“CONTINUATION UNDER SECTION 73(9)(e) OF THE ACT OF (blank)
SUPERVISION REQUIREMENT”
It will be seen that, in fact, the disposal signed by the chairman of the children’s hearing makes no explicit reference either to the 1995 Act or to the 2011 Act, although the reference to section 73 equates to the 1995 Act provisions.
[19] Decision 3 by the children’s hearing (on 23 January 2014) was “to continue with compulsory supervision for a year…” In the preceding section of the form the purpose of the hearing was “to consider the review of a compulsory supervision order dated 31 January 2013 deferred by a children’s hearing on 21 November 2013 section 138(2).” (The latter being a reference to a section within the 2011 Act).
[20] Therefore, notwithstanding the fact that the form to be signed by the chairman (following the children’s hearing on 23 January 2014) happens to be a pro-forma prepared for use supposedly under the 1995 Act provisions, it was manifestly open to the sheriff to conclude that the children’s hearing on 23 January 2014 “…had, in fact, directed itself towards continuing a compulsory supervision order in terms of the 2011 Act” and that “…in the event that the Hearing decided the child required compulsory measures of care that was indeed the correct order to make”. (See paragraph [17] in the stated case).
[21] It is instructive, then, to compare the paperwork relating to the children’s hearing on 19 December 2014. Decision 4 therein reads as follows:
“…to continue the supervision requirement for a year, and the child shall continue to reside with C and KB.”
Aside from the inclusion of 1995 Act terminology, in substance, it repeats decision 3 from the children’s hearing on 23 January 2014. The actual disposal by the children’s hearing on 19 December 2014 is also substantially similar to that of the 23 January disposal and, once again, utilises the same pro forma mentioning “SECTION 73(9)(e) OF THE ACT OF” but remaining indeterminate as to the Act itself.
[22] Drawing comparisons between the two sets of paperwork (ie 23 January 2014 and 19 December 2014) and looking to the substance of matters, it becomes difficult to accept the sheriff’s view to the effect that whilst the decision of the children’s hearing on 23 January 2014 amounted to a valid continuation of a compulsory supervision order, the decision of the children’s hearing on 19 December 2014 did not, the latter being vitiated by the incorporation of 1995 Act terminology. However, the sheriff’s view was clearly informed by the unchallenged proposition that the 19 December 2014 children’s hearing proceeded, at the request of the reporter, in terms of the 1995 Act.
[23] In reflecting upon a lengthy history something akin to a form of procedural purgatory, I have much sympathy with the sheriff. I have found it difficult to retain clear lines of sight and no doubt the sheriff experienced that difficulty too. In the midst of everything, it is important not to lose focus upon the nature of these proceedings. They concern child protection measures designed to preserve the welfare of a child as young as 5 years of age as at December 2014. What is clear is that the children’s hearing on 19 December 2014 had the benefit of material which, inter alia, gave rise to the inference that B was “…a very vulnerable child in need of compulsory measures of care” and was “clearly in need of protection and guidance”. (See decision 4 narrative). (The children’s hearing on 23 January 2014, which unanimously continued the compulsory supervision order for one year, had concluded that “B has experienced high levels of trauma in his young life. He is in need of protection and control”).
[24] To my mind, the issues to which the children’s hearing required to direct itself in making a compulsory supervision order were, broadly speaking, the same as those involved in the making of a supervision requirement. Under the 2011 Act, as a general consideration, “The children’s hearing, pre-hearing panel or a court is to regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the paramount consideration”. (See section 25(2) of the Act). At no stage during the course of the appeal was it suggested that the foregoing “paramount consideration” was an innovation upon the law relating to child protection found to have been lacking under 1995 Act procedure. (Indeed, that is obviously not the case. See section 16 of the 1995 Act).
[25] Nor was it suggested on behalf of the respondents in the appeal that the children’s hearing on 19 December 2014 had in any material respect misdirected itself as to the factual matrix placed before it for its consideration. Indeed apart from those of Mr Dickson, who highlighted the importance of the welfare principle under reference to the three options listed in section 51(5)(c) of the 1995 Act (see Norrie 2nd Edn at page 216), the submissions in the appeal were silent upon that core feature.
[26] As at the date of the children’s hearing on 23 January 2014, a compulsory supervision order was in place (see paragraph [8] supra). The children’s hearing on 23 January continued the compulsory supervision order for a year. I agree with the sheriff’s analysis; the children’s hearing had “directed itself towards continuing a compulsory supervision order in terms of the 2011 Act”. Accordingly, the compulsory supervision order (which fell to be treated as if it had been made on 28 August 2013) did not expire with the passage of a year (ie on 29 August 2014) since it was continued for a year as from 23 January 2014. Therefore, whatever else, the third question in the stated case falls to be answered in the negative.
[27] Further procedure took place between 23 January 2014 and 19 December 2014. An appeal against the decision of the children’s hearing from 23 January was allowed on 6 March 2014, it having been conceded by the reporter. As indicated above, the sheriff required the principal reporter to arrange a children’s hearing in terms of section 156(3)(a) of the 2011 Act. The basis upon which the reporter made the foregoing concession is not known. However, that having been done, the terms of the court’s interlocutor were entirely correct. If, as the sheriff records within the stated case, the reporter consciously instructed that the children’s hearing on 19 December 2014 be conducted under the 1995 Act provisions, I am at a loss to understand such an approach, particularly given the terms of the March interlocutor.
[28] A hearing took place on 29 April 2014 its stated purpose being “to review the supervision order dated 23/01/2014 (remit after appeal)”. Whilst the hearing was simply continued and was, therefore, of no consequence for present purposes, the hearing purpose as recorded discloses the use of incomplete terminology but, on balance, is consistent with the 2011 Act.
[29] There appears to have been a business meeting on 16 June 2014 (about which I have nothing to say) followed by a children’s hearing on 18 June 2014. That hearing was continued to allow the report of a safeguarder to be taken into account albeit that a minority of the panel favoured continuation of the “compulsory supervision requirement”. A further children’s hearing took place on 28 October 2014 but nothing turns on the written material relating thereto. The hearing was simply continued.
[30] At last, one arrives at the children’s hearing on 19 December 2014. The associated documentation is silent as to the purpose of the hearing. The decision of the hearing, as recorded, was to continue the supervision requirement subject to a variation. However, it is plain from the procedural history that the children’s hearing on 19 December 2014 was, in fact, considering a compulsory supervision order under the 2011 Act. As at that date, the only order the children’s hearing could competently continue was the compulsory supervision order previously continued by a children’s hearing on 23 January 2014.
[31] The sheriff concluded that, because the children’s hearing on 19 December 2014 was purportedly conducted under reference to the 1995 Act and was followed by a disposal cloaked in 1995 Act terminology, such a state of affairs amounted to something other than a procedural irregularity and could not be justified in all of the circumstances. I recognise that it cannot be suggested that the disposal of the children’s hearing was recorded in proper form. However, in my opinion, looking to the substance of matters in the context of the child’s welfare this was an irregularity (admittedly a very ill‑advised and unnecessary one) which was not in any material respect damaging to the justice of the proceedings. The failure of the children’s hearing to proceed under and to articulate its decision by reference to the 2011 Act or to use pro forma documentation associated with that statute did not result in prejudice to any party in the appeal.
[32] Therefore, whilst I agree with the sheriff’s decision to the effect that the supervision requirement became a compulsory supervision order as at 21 October 2013, I differ in respect of her conclusion that the decision of the children’s hearing on 19 December 2014 was not justified in all the circumstances of the case. I agree with Mr Dickson’s submission founded as it was upon the case of C v Miller. Accordingly, the first question posed in the stated case falls to be answered in the affirmative.
[33] Had I been of the view that question 1 fell to be answered in the negative, I would also have concluded that the sheriff erred in discharging the child from any further hearings or other proceedings in relation to the grounds that gave rise to the decision. The sheriff’s approach in that respect was largely informed by what was said in the case of Kennedy v A 1986 SLT 358. (See stated case at paragraph [24]). She felt constrained by the Inner House’s criticism directed towards the making of observations or the giving of directions in the context of a remit back to the children’s hearing for reconsideration of its decision.
[34] In my opinion, the case of Kennedy v A is readily capable of being distinguished from the present case. In Kennedy v A, the sheriff had taken it upon himself “...to make observations and to give directions as to how the children’s hearing should proceed in dealing with the merits (my emphasis) of the case. In particular, he directed that they must now proceed to make long-term decisions about the child’s future.” (Page 362G).
[35] In my judgement, therefore, the court in Kennedy v A was, in effect, warning sheriffs not to become involved in any attempt to influence a children’s hearing’s reconsideration of the merits of a case. That they should have issued such a warning was, in my respectful view, entirely justified and understandable.
[36] Of course, the court in Kennedy v A accepted that a sheriff would be required to give reasons for a decision (see page 362H-I). It would have been clear from the sheriff’s reasons in the present case as to why the case was being remitted to the hearing had the sheriff selected the first option in section 51(5)(c) of the 1995 Act. Therefore, I do not consider that anything in the form of an observation or direction was actually required. However, were it to be deemed necessary in any particular respect I do not accept that, for instance, an observation regarding the statute which properly applies to consideration of a case would involve a sheriff exceeding the court’s powers.
[37] On an issue such as this, which is entirely procedural, it would be unhelpful were the court to be prevented from assisting the children’s hearing with such straightforward guidance. In so far as it amounts to the proposition that a sheriff, in such circumstances, may not give any form of general procedural direction, I disagree with the terms of the footnote which appears on page 217 of Professor Norrie’s 2nd edition (and on page 254 of the 3rd edition) all under reference to the case of Kennedy, Petitioner 1988 SCLR 149. The issue of whether the sheriff in Kennedy, Petitioner had power to give a direction regarding the constituent members of the children’s hearing was not considered. In any event, as I have already indicated at para [36] supra the careful formulation of reasons for a decision may avoid any notion that the hearing’s function is being undermined. (See also the penultimate paragraph in the commentary which follows the report in Kennedy, Petitioner).
[38] Nevertheless, I do agree with what appears within the main text of Professor Norrie’s 2nd edition at page 217 under reference to the prospect of discharging a child from any further hearing or proceedings etc:
“When this option is considered appropriate, any supervision requirement imposed in respect of these grounds will be terminated, together with any order attached thereto. This option should be chosen by the sheriff only when he considers that it is not appropriate in all the circumstances of the case for the child to be or to remain subject to compulsory measures of supervision; a procedural irregularity will seldom in itself lead to this conclusion.”
[39] As indicated above, I regard what took place on 19 December 2014 as a procedural irregularity. In any event, whilst the sheriff was no doubt understandably perplexed by the procedural maze constructed around the child, on the material available, I can find no justification for the conclusion that it was not appropriate for the child to be or to remain subject to compulsory measures of supervision. Indeed, I am satisfied that the contrary prevailed.
Decision
[40] All that being so, and given that I have already answered the third question in the stated case in the negative the overall outcome of this appeal is to the effect that the decision of the children’s hearing on 19 December 2014 was, indeed, justified in all of the circumstances of the case and that that decision ought to be sustained subject to what was purportedly described as “the supervision requirement” being treated as if it were the compulsory supervision order from 23 January 2014 being continued. I have given effect to my decision in the appeal by remitting the case to the sheriff under section 51(14) of the 1995 Act with appropriate directions. It should be recorded, for the avoidance of doubt, that the appeal itself proceeded under and in terms of that Act, a feature which was unchallenged by any party.