SB against EDINBURGH CITY COUNTIL
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 120
P338/14
OPINION OF LORD McEWAN
In the Petition of
SB
Petitioner;
against
EDINBURGH CITY COUNCIL
Respondent:
Petitioner: Party; lay representative Ms Devi
First Respondent: Carmichael QC, Nicholson; City of Edinburgh Council
2 September 2015
[1] This is a petition for judicial review presented in the instance of a father against the local authority in Edinburgh. It concerns decisions the local authorities in Edinburgh have taken in respect of his two sons (AJB, 17 born April 2001 and AYB, born 19 March 2002) who live with their mother (MB) in Edinburgh. The father has limited parental rights. The circumstances disclose a long, complicated and bitter history which includes inter alia the father having abducted one of the boys in 2012, facing trial for that, being convicted and sent to prison (July 2014). At the lengthy hearing before me, between October 2014 and May 2015, the father was ably represented by a lay representative Ms Devi. Senior and junior counsel appeared for the council. The simple reason behind all of these proceedings is where the boys should reside in their best interests. They have resided with their mother for over five years following proceedings in the courts in England.
[2] Let me first look at the averments in the petition as adjusted (number 19 of process). It should be observed at the outset that there is only one respondent. The police are not a party nor is the reporter to the children’s panel. At one point the ombudsman was a party but that is no longer the case. The basis of the petition is an allegation that the respondents have failed to perform their statutory duty to safeguard and promote the welfare of the boys, now aged 14 and 13 years (paragraph 2A), and is incompatible with the article 3 rights of the children and their father. The specific remedies sought are to be found in paragraph 3. There are nine of these reflected on pages 1 and 2 and in the plea in law (page 34). Reduction is sought of a decision not to convene a review committee with a related declaratory conclusion; (3.1 and 3.2 and pleas 1 and 2) declarator of a breach of the children’s article 3 rights (3.3 and plea 3); declarator of an unlawful assessment of the children’s needs on the facts, assessments and guidelines (3.4 and plea 4 which also appears to involve the children’s reporter); declarator against any finding that the father is a risk to his sons on the facts, (3.5 and plea 5); an order (not specified) for specific implement of a statutory duty, (3.6 and plea 6 which is also not specific); interdict (called injunction) seeking updating of records in accordance with “a fact-finding judgement” (3.7 and plea 7); a general request for further orders and expenses (3.8 and plea 8) and lastly anonymity (3.9 and plea 9 not controversial (my emphasis)).
[3] I find no plea to support the claim that the father’s article 3 rights have been breached but I will deal with that point as if there was one, as the matter was argued before me. There is an amended note of argument for the petitioner (number 20) and very late on, a further one was handed in after the case went to Avizandum. On 29 May 2015 against opposition I allowed this with the respondents having a right also to lodge a written reply, which was done in June.
[4] The respondents have lodged detailed answers to the petition (number 27) as well as a written note of argument (number 28). Let me continue by giving a summary of the note of argument of Ms Devi, in supplement of her written submission, heard between 29 October 2014 and 20 January 2015. At no stage was there any suggestion of any need for a factual inquiry. That is unusual in judicial review and here I am quite clear that there are no “hard edged” (so called) issues that could ever need investigation.
[5] It should also be noted that on 14 January 2015 the petitioner sought disclosure of the records of the respondents relating to the boys. Ms Devi claimed that the father was entitled to see all the documents. Unsurprisingly the motion was opposed. No specification of documents had been lodged and earlier attempts by motion to recover documents had been dropped. The children who were of an age to express a view did not want documents disclosed to their father. At the time I considered the Data Protection Act 1998 section 7 and rejected the motion for a number of reasons. It was too late; the information was not clearly relevant to the petition; the children did not consent and there was no reason to override this. It was also important that the father only had very limited parental rights.
[6] At the hearing a number of cases were referred to. A very few of these were fully canvassed and most were just looked at it in passing. I list them here in approximate chronological order, viz:
A v UK 1997 (unreported)
Scozzari and Giunta v Italy 1998 13 July 2000 Grand Chamber
Çakici v Turkey 8 July 1999 Grand Chamber
E v UK (2002) ECHR 769
Pretty v UK (2002) EHRR 1
Becciev v Moldova Case 9190/03 (not reported)
Ex parte Al Sweady [2009] EWHC 2387
Principal Reporter v K [2010] UKSC56
R v DPP [2011] EWHC 1465
AXA v Lord Advocate [2012] SC UKSC 122
ET v Islington [2013] EWCA Civ 323
R v Haringey BC [2013] EWHC 416
Portobello Park etc v Edinburgh DC 2013 SC 184
McCue Petitioner [2014] ESOH 124
AB and CD [2015] CSIH 25
[7] Her argument followed the outline of the petition and her main written submission. The question was how the issues surrounding the two boys had been handled since October 2012 and why there had been no independent review committee. The children had been with their mother in Edinburgh since 2007. They were not protected from her cruelty. Experts had warned of this and it was a lifelong threat. There had been delays, mistakes and a lack of any judicial continuity. The above was ongoing and article 3 was engaged. The father was not an abuser. While agreeing that a Complaints Review Committee (CRC) could be suspended, it was wrong to do so here since the issue before the court was a different one. This she maintained under reference to reports by Professor MacKay that the boys who were now isolated with a dysfunctional parent (the mother) were at risk of “learned behaviour” from her. The respondents had not properly considered that.
[8] As to mora she argued that the husband did not acquiesce and any attempt to create a time limit could not be justified. There could be no prejudice and if the action was truly only a matter for the courts then there was no place for the CRC anyway. (She referred to her note of argument, paragraph 14.) She then read passages from the report by MacKay and Furnell and said two things: one, the respondents had ignored them and two, the respondents had no professionals of their own. She referred me to certain national guidelines in a document (number 6/62 of process) emanating from the Borders Region. When she returned in November she referred at length to the opinion of Judge Richards from the hearing in England in 2009 in the High Court in Coventry. He had been very critical of the mother then, and what the father was faced with now was a long term problem. She said the history mattered since it related to where we were now. She criticised the social services of the respondents in an unwillingness to meet Professor MacKay now. She referred me to various passages in his report (written some years ago) (numbers 6/55 and 6/57 of process) and the report of the curatrix (number 6/56), also the unsatisfactory access meeting at the Museum. She argued that the matters should have been looked at by the reporter and the children removed from the mother. (Petition 4.46, 47.)
[9] (I asked her where the boys were then to go and I got no clear answer. I reminded her that in coming to the decision complained of the respondents had all the judge’s findings from the English proceedings and the court bundles, see letter 6/26.) She concluded this chapter by looking at the opinions of Sheriff Crowe and that of the Sheriff Principal. The appeal was abandoned as he lost his parental rights when he was charged with abduction. (It was accepted that he was convicted before a jury at Edinburgh Sheriff Court. As far as I am aware his appeal against conviction was refused in May of this year.)
[10] Ms Devi continued by repeating that the respondents had not talked to any experts, but simply believed the mother and all her allegations about the father and what he is alleged to have said in the past and present. She said there was a refusal to accept the father’s account and this meant that there was no middle ground on issues of fact. Under reference to the petitioner (paragraph 4.4) she took me to certain passages in the opinion of the judge (paragraph 54 and 55) where he commented on the evidence of witnesses from Shakti and the respondents. She then, under reference to various reports, reinforced the point that the children had become “parentified” (ie they were the parents of the mother). [As the debate went on I did not understand this to be seriously disputed. What relevance it has now, in 2015, is another matter.] Mention was made of a time when the ombudsman was involved and reference made to a number of documents. [I pointed out to her that there could be no live issue arising out of this.]
[11] When the case resumed in January Ms Devi simply read out the petition from paragraphs 4.49 to 4.94. I do not intend to do other than refer to all of this for its terms. She did, however, hold that in certain other matters the respondents were simply “editorialising” the information to suit their position which was that they were doing nothing. They had also created problems with other agencies. This, she said, demonstrated that any investigation into the true welfare of the children was flawed, therefore unlawful and a breach of article 3.
[12] She then looked at the civil proceedings in the sheriff court and at the trial of the respondents before the sheriff and a jury. She gave me her own analysis of how, she said a damaged child had lied and exaggerated his evidence. She then read out selected passages from a number of the cases beginning with ET v Islington where the initial assessments had been flawed, then McCue Petitioner. She read out article 3 and referred me to Pretty v UK and Becciev v Moldova, then E v UK especially at paragraph 91. There was, she said, an article 3 risk presented by the mother and it was wrong to isolate the boys with the person causing the damage. (Selected excerpts from these cases are printed in the petition in section 5. None of the cases was examined in any other way or in any detail and they are all of course fact sensitive.) She then looked at Scozzari and Giunta v Italy; Principal Reporter v K; (a case involving the children’s hearing system) Çakici v Turkey(where,on the facts the decision went against the brother). She then looked at Al Sweady and argued that as the petitioner had not been allowed any disclosure he could not correct misleading information. She looked at the important case of R v Harringay then at R v DPP.
[13] Following this she devoted an argument to the attitude of the police in Edinburgh to matters involving the mother and the children. She claimed the father was being marginalised and only the court could get to the heart of the issue. She ended by asking me to look at the recent decision of Sheriff Mackie (AB and CD).
[14] Following the argument for the respondents I gave Ms Devi a right of reply. She repeated that there was no basis for any acquiescence, and again repeated a large number of factual matters about the mother and how “the same wrong information keeps churning around causing systemic failure”. Loss of parental rights did not affect the petitioner’s “standing” (Scozzari). She again repeated that at his criminal trial everyone had got it wrong about the father. After I made Avizandum she handed in another written submission which, as I have already said, later became the subject of dispute. (See earlier paragraph 3.) She moved me to grant the petition and sustain her pleas.
[15] Senior counsel for the respondents, in replying, moved me to dismiss the petition entirely subject only to acknowledging the anonymity of the parties presenting involved. She made certain criticisms of the way the remedies were set out but agreed that they could be dealt with as they stood.
[16] She dealt first with mora, pointing out that the most recent decision (number 6/1 of process) had been in October 2012 and the petition was raised in April 2014 some 16 months later. The father was not a man who remained silent and no reason was advanced for waiting so long. She referred me to Portobello Park, and said that the three necessary factors there (mora, taciturnity and acquiescence) were present here. (She referred me to her written submission.)
[17] She continued under reference to relevant sections of the governing Statute (Social Work (Scotland) Act, 1968) sections 5B(1), (2) and (6); and the governing circular (number 6/61 of process) with its annexes dealing with the interaction with legal actions, postponement and suspension, and when these could properly arise. Here nothing had been suspended since the matter never got to any Complaints Review Committee (CRC), and in any case one had to be requested in writing. Miss Carmichael then looked at a number of documents. The nature of the complaint was to be found in 6/10 of process. The children were isolated and under the control of the mother. Too much attention was being given to the views of Shakti and not enough to what had been decided in the English proceedings. Counsel pointed out that whatever the judge in England had decided he left the children with their mother. That had not changed when the matter was revisited by several sheriffs in Edinburgh (see 6/11). Counsel then took me through a series of correspondence and emails (6/12 and 6/17) arguing that it was plain from 6/30 and 6/31 that legal proceedings were not at an end. The matter could not be sent to any CRC and if it had been it would have been suspended anyway. Accordingly there was no error in the letter of 15 October 2012, or if it was wrong as to the last paragraph, the error was not material. It followed from that, that the decision was lawful.
[18] Miss Carmichael then moved to consider whether under the terms of the Act (section 5B) the father had any “standing” (locus standi) to present the petition and whether he himself was a “victim”.
[19] What was being said in this case, and by a conclusion, was that the father was an article 3 victim, but in fact it was his personal grievance and not truly on behalf of his sons. The present case was not even close to article 3. There were no proper averments that the boys were suffering or that he was in any sense a victim, especially as he had only limited parental rights. The case of Çakici v Turkey was wholly different and involved the brother of someone who had disappeared. Scozzari was not in point and was factually complicated which this case was not. It involved the placing of children. This was not a case involving a court decision which the respondents had disregarded. The children were not in any institution. Counsel here referred again to Scozzari and the recent case of AB and CD. The next three cases she also distinguished viz: E v UK where there had been a complete failure to monitor the children; A v UK where the facts were not comparable and Becciev v Moldova where the issue was detention conditions.
[20] Counsel then returned to look at title and interest in more detail. She reinforced the point that as he had very limited or no real parental rights he had no title or interest to bring proceedings. The orders sought (3.4, 3.6) were to enforce rights which were not his but the rights of the children. There was no public interest to permit this. The children had been monitored by Edinburgh Sheriff Court for years and the orders now sought would have no practical result. No public error in law had been shown. The petitioner merely disagreed in fact with the approach of the respondents. She referred me to AXA paragraphs 62 to 64 and 166 to 170. Counsel questioned the provenance of number 6/62 of process allegedly the policy of the Borders Council, and number 6/2 which was unattributed. Given that in the reports lodged which are now dated there was no evidence the mother had any mental illness or personality disorder, she then asked the question whether the decisions were in any way lacking.
[21] She began with the interim assessment number 6/22. I shall return to this and the others in due course but for the present it is enough to note that counsel said that it had covered all relevant points and had addressed a lot of detail for an initial assessment. Its date is March 2012. In August that year (6/24) it is clear that the respondents took account of everything the petitioner was complaining about. Nothing was overlooked or omitted and it was clear from the attitude of the petitioner that he wanted his children back in care. It was equally clear that the respondents were well able to distinguish between what were merely views and what were facts. Counsel drew my attention to passages in AB and CD especially paragraph 32 and then dealt with the compelling reasons why a “police marker” had to be used (6/22). The summary and conclusion in 6/24 were entirely justified and showed that the respondents had considered all the facts and reports. Also an attempt had been made to reduce the decision of the reporter taken after the referral by Sheriff Liddle. (6/19 and 6/24.) The letter of 13 August (6/45) came at a time when the respondent was “stirring up trouble”. The fake allegations, dishonesty about a neighbour and the false pretences about “a woman at the school” all tied up the resources of the respondents and the NSPCC. Then there was the abduction and the trial which followed.
[22] In this process allegations were being made about the police, the Crown and the Scottish Legal Aid Board (SLAB). These were all irrelevant. None of these parties had been convened. It had nothing to do with the respondents. Miss Carmichael concluded by looking at when, how and if it was appropriate to make deletions from a database under reference to R v Haringey BC. She did not dispute that it was competent to do so in appropriate cases which would be rare.
[23] After the case had gone to Avizandum (see paragraphs 3 and 14) late submissions were received. I have discussed this above and to prevent any further argument and as the petitioner is a party litigant, I have taken account of them.
[24] His submissions amount to 11 pages. I regret to say they are unhelpful and amount to no more than a reiteration of disagreement of facts. I have no power to resolve such issues nor was I asked to do so. For example paragraph 35 is a refusal to face up to the conviction and the passages on article 3 continue to rely on old information which, when it was looked at at the time, resulted in the boys remaining with their mother.
[25] The respondents’ short reply repeats and reinforces arguments which they have already made and which I deal with.
[26] The cases cited to me do not form any pattern and are rather a series of individual decisions on their own facts. That means that they are all of doubtful relevance to what I have to decide in this case. However, they must be dealt with out of respect to the argument. Few of them were looked at in any detail.
[27] In A v UK there was a referral to the European Court by a British National against the UK. It concerned the history of a “difficult boy” and chastisement by his stepfather with a garden cane. The boy was aged nine. The stepfather was found not guilty of assault. However, on a concession, the court found a violation of article 3 and, in spite of the acquittal, the court awarded compensation to the boy. The importance of the case seems to me that the law did not provide adequate protection to the child. The case before me involves no such similar facts. E and others v UK was a similar type of case. Again the facts were even more extreme than in the case just looked at. It arose from Dumfries Sheriff Court, and involved prolonged and very violent sexual and physical abuse by a stepfather on three young sisters and their brother over several years. He was convicted, put on probation but somehow returned to the house and the abuse went on. There were insufficient social work checks and the children’s mother died. Some years later the stepfather was convicted again. The children found no remedy until the European Court when article 3 was found to be engaged and awards were made. The court was prepared to go beyond the criminal courts saying that responsibility in International Law was not concerned with criminal findings. The local authority should have been aware, yet there had been no proper cooperation and communication between the various bodies who should have discovered and prevented the abuse continuing.
[28] The facts in the present case are far removed from this. There is nothing proved to me which should have been discovered or prevented. The mother has had custody for years on court authority. The only seriously adverse event was the abduction by the father which has resulted in criminal proceedings.
[29] Becciev v Moldova involved inter alia article 3. Once again the circumstances were quite extreme. The head of a water company had been remanded in very poor prison conditions and his detention was prolonged. A visit by a torture committee to the prison produced a very poor report. The court (with a dissent) found a breach of article 3 and awarded damages.
[30] It seems that these proceedings were independent of any trial which was to take place. As some of the other cases from Europe show, the European Court can proceed at times almost ignoring what may be happening locally, and make compensatory awards. It is an international body. In judicial review I have no such powers.
[31] Çakici v Turkey concerned the disappearance of a man (AC) who was taken by the security forces, held, beaten and some time later his body was found. He may have been involved in terrorist activities. Due to that fact that there was eye witness evidence, the Grand Chamber had no difficulty in finding a breach of article 3 in respect of AC. The petitioner, who was the brother of AC, claimed to be an indirect victim due to his grievance over the disappearance and his unfounded hope that his brother would be found alive. The court found no violation of article 3 towards the petitioner. In the present case the father claims a breach of article 3 against himself. The facts are wholly different but quantum valeat Çakici is authority against such finding.
[32] The last European case I want to look at in detail is Scozzari and Giunta v Italy. It was referred to as an authority for allowing the petitioner to act for his sons. Read out of context it could suggest that, (paragraph 138), but the context is wholly different. The facts show a veritable litany of problems. The father was a violent escaped life prisoner. There were parental conflicts and schooling problems. The children had been put in a community called “Il Forteto” which was run by convicted abusers and where there was a climate of violence, fear and episodes of homosexuality. The children’s social worker was a drug addict, a paedophile and involved in pornography, drugs and sexual abuse. The mother had a personality disorder, was implicated in a murder and had been charged with offences against the children. All that was found by the Grand Chamber was an article 8 breach over contact being frustrated. No breach of article 3 was found. I have to have regard to the decision but it seems to me to bear no relation to what is in issue in this judicial review. The facts are different and what was alleged as an infringement of article 3 is far more extreme than the facts related here. I have examined the case of Pretty but it is not in point here.
[33] Mention should be made of Ex parte Al Sweady. This case is not in point because it really was all about disclosure which this case is not. (The motion for disclosure and recovery here was refused mid way through the proceedings). The case concerned allegations against British troops in Iraq that they had murdered captured prisoners and tortured others (article 3). This case disclosed a very serious failure over disclosure by Ministers, delays and an eventual admission by Ministers that proper disclosure was not complied with. There was also a failure in disclosure by the Royal Military police as well as no proper investigation by them. The court, clearly unimpressed with this behaviour, made an award of indemnity costs against the Government. The factual disputes were so acute that there was a need for cross examination (see paragraphs 15, 22, and 26). Nothing of this nature has occurred here or arises from the paperwork of the respondents.
[34] The Divisional Court decision in R (Applications of E, S and R) v DPP again shows a situation far removed from the present facts. It was a judicial review of a decision to prosecute a girl of 12 (E) for the sexual abuse of her younger sisters (S and R, who were three and two years). It was accepted that there was evidence but was it in the public interest? There were issues of family hostility, how to support the children and remote abuse of E on the internet. There was a serious risk of retraumatising the victims.
[35] Having considered whether the policy to prosecute was flawed under International law obligations, the court (50, 54) found it lawful. There was, however, a flaw in that the respondent in making the decision had not engaged at all with a full report on the case (see 60 to 62 and 67). No breach of article 3 was found.
[36] To try to fit this case to the present is impossible save to observe that every effort has to be made not to traumatise or retraumatise these boys. One had already been abducted by the father. He has had to go to court and give evidence. I suspect the father wishes both of them to see the experts to be psycho analysed; and he certainly wants them removed from their mother with whom they have resided for years now. To me it is plain that none of this is in their interests especially if it meant putting them into care.
[37] Principal Reporter v K disclosed a complex set of facts and procedure. It was a depressing case of a father (K) allegedly abusing his daughter. The only issue was whether he was entitled to be heard in the context of children’s hearings and whether he was a “relevant person”. At first he was not allowed to be present but then an experienced sheriff gave him parental rights, and for two years he attended hearings. The petitioner tried to suspend this right and doubts were expressed as to whether this was a proper remedy two years later. In the end he was allowed to appear, the Supreme Court finding that the hearing system had violated article 8. The court had to indulge in quite a degree of “reading down” to reach its conclusion. In reality the issue was what was fair to the father in all the circumstances.
[38] ET v Islington did not concern any right to be heard. It concerned whether a local authority had failed to make assessments and draw up a care plan for three children. The fear was of sexual abuse by a convicted serial abuser who had a relationship with the childrens’ mother. A police officer had given a high risk assessment that no child in the area was safe. The respondents had decided the risk was manageable. It was decided that the valuation was flawed. The case is not in point for present purposes.
[39] In McCue Petitioner a mother sought judicial review of decisions of Glasgow City Council about her disabled son. Her whole case was argued on the basis of whether alternative remedies excluded judicial review and that was ultimately the decision of the Lord Ordinary.
[40] AB and CD v Haringey is a most interesting case and shows how easily things can go wrong if the proper inquiries are not made, sensible responses ignored and paperwork is carelessly completed. The case was about a flawed response to an anonymous complaint about the alleged behaviour of a mother to her child (see paragraph 30). None of the other agencies (e.g. the school) supported the complaint yet a decision to proceed was taken before any home visit. The parent’s case inevitably succeeded and they were awarded damages. There were some hard words from the judge. What is also important, and why the case was cited to me, is the erasure of the information about the parents from all databases. That is not an issue before me since the point is secured by an anonymity direction.
[41] I want to say something about AB and CD. In my opinion the case does anything but support the petitioner’s argument. It concerned alleged contempt of court by two social workers who, at their own hands, had suspended contact to children in favour of their mother ordered by the sheriff. She had decided as she did on paper, without evidence, on appeal from a children’s panel. She was then in effect functus. However when the mother complained about the actions of the social workers the sheriff fixed a hearing and a proof. There were no written pleadings and the social workers were ordained to lead. In the result the sheriff who had seen no contempt found them in contempt. That conclusion was reversed on appeal and she was severely criticised by the second division.
[42] Reading what was said it seems to me that she firstly decided on the wrong procedure which led her to make contradictory findings and ask herself the wrong questions. This led inevitably to a result which could not be supported.
[43] All these unfortunate matters apart, where the case is helpful is in what was said about the opinions of persons or bodies charged with the welfare of children. Clearly in any such cases there can be room for different opinions about what action to take or not to take. The distress and anxiety caused to young children is a paramount concern.
[44] What is important to emphasise is that an honestly held opinion reached in good faith in a difficult situation could rarely amount to contempt of court (see paragraphs 23, 26, 30 and 32). The case showed that trained and professional people made an evaluation which they honestly believed was in the best interests of the children (see paragraphs 1 and 13). That, in my opinion, is precisely what has happened here and it has been a continuing and consistent exercise starting when the judge in England wisely allowed the boys to remain with their mother.
[45] Portobello Park concerned an action group seeking to stop the building of a new school on common land. There had been preliminary decisions over four years and meetings, protests and objections. Planning consent was given in February and there was a delay until June before the petition for judicial review was lodged. It was held that mere delay was not enough and on the facts there was no taciturnity or acquiescence. There had been steady and unwavering opposition. The actual decision was very recent and had been reacted to. It was all a matter of fact and degree.
[46] I now turn to look at what guided the decision of the respondents which the petitioner seeks to reduce. That is largely to be found in two very lengthy and comprehensive reports. The one on the older boy AJB is dated 14 August 2012 and is completed by Andy McWhirter and Rachael Kinnear. It has 27 pages (6/24). The 23 page report on the younger boy is dated 23 March 2012 and is Mr McWhirter’s work (6/22). These can conveniently be looked at together, and they do not require any detailed scrutiny from me. It is a statement of the obvious to conclude that every aspect of the boys’ welfare has been looked into both in the past and up to the dates in 2012. Many perspectives are noted and there is much detail. It is plain from 6/22 that the writer has kept an open mind about the future.
[47] The later report is even more detailed and includes (23/4) a full chronology of the matters complained about by Ms Devi in her argument to me. It is helpful to see how many issues have been looked at and commented upon. The views of the children, the risks to them and their well‑being are all scrutinised. There are no health issues and their general learning and confidence is good (page 9). The school reports are positive. That is also to be seen on page 9. Their academic ability is good. It is clear from page 5 that the petitioner in 2012 wanted the boys removed from their mother and that would mean them going into care before, presumably, being returned to him. I believe that that is still his wish today in spite of all that has happened. How that could be in the boys’ best interests is beyond understanding. I would regard any such outcome itself as bordering on a breach of article 3. It is wanton and utterly unrealistic.
[48] Lest it be overlooked, it is clear that the compilers of the report have taken account of the role of Professor MacKay and the alleged “Stockholm syndrome”. This is fully dealt with at page 14. At this point it is worth mentioning the earlier procedures in England. (Number 6/6 of process.) These seem to me now only of historical interest. It is not for me to reinvestigate the facts again. It is clear that the welfare of the boys was then (as now) the primary consideration (paragraph 7). Even Professor Furnell would not remove them from the mother (paragraph 45) far less put them into foster care (paragraph 48). The risk was of making them lost, frightened and traumatised and likely to run away (paragraph 53). The guardian who was very critical of the mother did not want to move the boys (paragraph 67). In the conclusion C “parentification” is seen as a fact now beyond reversal. Neither home is perfect (conclusion J), and they will come to less harm remaining with the mother (conclusion P). The respondents here have maintained this “least worse option” now for many years and subsequent and recent events have in my opinion confirmed that this was the sensible and correct policy.
[49] With these matters and reports in mind I look at what then happened. In chorological order on 27 August 2012 the children’s reporter (author Christine Rankin; number 6/27) wrote with a decision not to bring the boys to a children’s hearing. The basis was consideration of all relevant reports past and present, including the court judgments from England, both Professor MacKay and Furnell, the school and all the Edinburgh reports which I have just detailed. The writer said it was in the best interests of the children not to intervene (“minimum interventions”). It is impossible to fault that decision and in any case the reporter is not a party here. On 10 September 2012 the ombudsman wrote refusing to become involved. Fiona Glasgow’s letter gives clear reason why they could not become involved and, more importantly expresses no serious concerns (number 6/28 of process). Then on 15 October (number 6/1) is Michelle Miller’s letter which is the basis of this petition. That makes it very clear that a Complaints Review Committee (CRC) has no powers to consider the matter further. Against the background I have narrated I cannot see how that letter is open to challenge. It could only be on Wednesbury grounds and not upon a difference in opinion. It cannot be said that the writer of the letter and through her the respondents have had regard to irrelevant matters or have failed to take account of relevant matters. Nor can it be said that the decision in the letter is one so unreasonable, that no properly constituted authority could ever have taken it.
[50] I am confirmed in that conclusion by reference to the guidance issued to the respondents which they clearly had regard to. It is number 6/61 of process. I do not need to discuss the detail. Paragraphs 11 and 62 allow for a postponement of complaints in the events which have happened. I read this document on applying equally to a complaint which is ongoing and one not started. No material error in law is disclosed in the respondents’ attitude expressed in 6/1.
[51] What is to be made of the article 3 point in relation to the boys and the father. The article provides inter alia: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment…” So far as both boys are concerned there is no evidence before me of any kind that the article is engaged at all. The only inhuman thing which has occurred is the abduction of one of them by the petitioner for which he has been imprisoned. None of the cases cited to me is in point. The facts are nowhere near A v UK or E and others v UK. The European cases on detention are not in point at all and even in Scozzari and Giunta v Italy no breach of article 3 was found. AB and CD v Haringey shows the danger of acting on imagined and anonymous complaints. Accordingly conclusion 3.3 has to be refused and plea 3 repelled. The father claims to be a victim of a breach of article 3. This could only be as an indirect victim and I think it is based on 5.16 to 5.23 of the petition. The problem is that there is no evidence at all to justify him being an indirect victim and his own behaviour and conviction militates against it. AB and CD (above) was not an article 3 case. The only case where such an issue has been raised is Çakici v Turkey which I have discussed elsewhere. In that case the brother’s article 3 claim failed. It is authority against the petitioner and so quoad him, conclusion 3.3 has to be refused.
[52] I must say a word about “standing” (locus standi) against the cases and the governing statute. The Social Work (Scotland) Act 1968 provides inter alia:
“5B(1) … the Secretary of State may… require local authorities to establish a procedure whereby a person… may make representations (including complaints) in relation to the authority’s discharge of, or failure to discharge, any of their functions under this Act…
(4) In relation to a child, representations may be made… by the child, or on his behalf by —
(a) his parent;
(b) any person having parental responsibilities and parental rights… in
relation to him…”
What is being said here is that what the father is doing is not “on behalf” of the boys but for his own ends. Thus it is said he has no standing (or formally locus standi) to present this petition. In view of my decision on the substantive issue I regard this point now as almost academic. Following AXA the father has to show that his application is based upon a sufficient interest in this whole context (Lord Reed paragraphs 170 and 171). It is true the father has been convicted of abduction and now has limited parental rights. A strict construction of statute would appear to disqualify him. However, the authorities may say otherwise. Principal Reporter v K seems to allow a fairly liberal attitude in complex situations like this. Fairness in a test which is applied. I have to take some account of Scozzari as it is a decision of the Grand Chamber and is cited in the textbook for the point Ms Devi sought to make. I have already referred to the problem with the mother there, but at paragraph 138 of the decision her status as the mother was enough.
[53] My opinion in this matter is that the strict wording of the Act must prevail. I do not have the power which was available to the Supreme Court on the facts in K to “read down” the words to make them into something they are not. Also for reasons I have already given about article 3 there are no relevant averments that the father is a “victim”. I agree with paragraph 1 on the revised note of argument for the respondents. In the result their first plea in law will be sustained. In so doing I reinforce the difficulty the court faces with a party litigant. I was not asked by Ms Devi to take the course adopted by Lady Hale in K and it is not for me to take such a course brevi manu and against strong opposition from the respondents. Incompatibility was not argued and to add in words to make section 5B fit the case of the father is not an attractive solution (see the detail in K from paragraph 60 onwards).
[54] Next and last of the substantial pleas is mora. This again is now academic and can be dealt with briefly. In my opinion the plea (number 2 for the respondents) is well founded. In a matter concerning children growing up, delay is not to be encouraged. It creates unsatisfactory uncertainty and confusion in their young lives. The delay is 16 months. That is four times the period in the Portobello case and in my opinion is too long. There is no satisfactory explanation even in paragraphs 6 to 9 of the very late submissions handed in after Avizandum. I have also to consider, taciturnity and acquiescence. In my opinion both factors are present. It might be said that the father showed no acquiescence by abducting one of the boys. In my opinion he cannot be allowed to rely on that behaviour to defeat the plea.
[55] There are two details which should be mentioned. I can take nothing from number 6/62 of process. It is said to emanate from the Borders Council but that is wholly unclear. It appears to relate to the mental health of a parent. That was looked at in the English proceedings by Dr McDonald but even she was not for removing the children. Something was sought to be made of number 6/2 of process, a handwritten single sheet mentioning narcissism. It is unattributed and unhelpful. I propose to ignore it.
[56] That disposes of the whole case and I now indicate how the pleas should be disposed of. So far as the petitioner is concerned pleas 1 to 5 are repelled for the reasons in this opinion and I re‑emphasise that I have no power to look into disputed facts. Plea 6 is repelled in particular because the petitioner has no “standing” to seek any such orders and plea 7 for the same reasons. Again this matter was earlier ventilated when “disclosure” was refused during the debate. Plea 8 is repelled. There are no orders which I can consider. Plea 9 I sustain. Anonymity is granted. In the result the petition is refused. I sustain all the pleas for the respondent save number 4 which I find to be unnecessary to deal with. I will reserve the question of expenses meantime and the case will be put out for a hearing on a date to be afterwards fixed.