SWA50/07 & SWA51/07
JUDGMENT
OF
SHERIFF PRINCIPAL
JAMES A TAYLOR
in the cause
KG and JG
APPELLANTS
against
Jim McClafferty, Authority Reporter
RESPONDENT
GLASGOW, 22 January 2008.
The Sheriff Principal, having resumed consideration of the cause, Answers the question posed in the Stated Case in the affirmative; Remits the case to the sheriff with a direction that the grounds of appeal be held to be established and that the case be remitted to the Children's Hearing.
NOTE:-
[1] This is an appeal by the parents of two children against a decision of the learned sheriff who held that the grounds of referral had on the evidence led before him been established. The child is the son of the appellants. The learned sheriff found as a matter of fact that the child is under the supervision of the Children's Hearing. Grounds for referral were established at Glasgow Sheriff Court on 17 March 2005. The child is on the child protection register under the category of emotional abuse. He found that the mother and father had repeatedly presented the child at hospital in circumstances where he was said to be suffering from symptoms for which there was no physical or organic basis. The complaints included testicular pain, abdominal pain, rectal bleeding, vomiting and diarrhoea. As a matter of fact the learned sheriff found that the child had not been suffering from the symptoms described by the parents.
[2] The case called before the learned sheriff on 5 April for a pre-proof hearing. The Reporter moved a minute of amendment. That minute of amendment deleted statements of fact seven and ten. This meant it was no longer part of the Reporter's case that the parents were suffering from a diagnosis known as Fabricated or Induced Illness syndrome. That was a diagnosis which Dr Jean Herbison, consultant paediatrician, had given in her report dated 19 December 2006. Mr Targowski, QC appeared for the father at the pre-proof hearing on 5 April 2007. He opposed the deletion of statements of fact seven and ten. The learned sheriff in his Note to the interlocutor of 5 April states as follows:-
"His (senior counsel's) concern was borne out of an apparent contradiction in the position adopted on behalf of the Reporter. In other words, on the one hand, Dr Herbison's considered opinion was being explicitly departed from whilst, on the other, the Reporter was still intent upon calling Dr Herbison as a witness to speak inter alia, to the terms of her report. Senior counsel submitted that, standing the view she had reached, any evidence given by Dr Herbison would inevitably be coloured having regard to her conclusions about Fabricated or Induced illness.
The court itself detected merit in senior counsel's argument. It suggested that, with Dr Herbison's opinion no longer being an issue, all that the court was concerned to hear evidence about was the de facto history of medical complaints coupled with the conclusions reached by those medical professionals called upon to deal with those complaints.
The impression gained by the court was that the Reporter's case could involve no more than setting out the basic facts, with the parents, thereafter, being called upon to explain their position after sustained and repeated rejections of their concerns about their children, in particular, KG."
The learned sheriff allowed the minute of amendment notwithstanding senior counsel's opposition thereto. In a summary contained in a Note to his interlocutor of 5 April the learned sheriff wrote:-
"(a) The syndrome or diagnosis characterized as Fabricated or Induced Illness is no longer part of this case and any evidence about that will be deemed inadmissible as proof.
(b) Dr Herbison's evidence (should she be called as a witness) will be confined to matters of fact and not opinion. It follows that any non-factual evidence to be given by Professor Golding will be similarly excluded. Indeed, with the explicit departure from the Fabricated or Induced Illness case, it appears that Professor Golding's opinion evidence may be rendered superfluous."
[3] At the appeal Mr Targowski appeared for the parents, Miss Spence, solicitor, for the Reporter and Mr O'Donnell, solicitor, as curator ad litem. The application for a stated case posed nine questions. Mr Targowski intimated at the outset that he was only advancing arguments in support of the first five questions which are in the following terms:-
"1. Was the Sheriff entitled on 5th April 2007 to allow the Minute of Amendment lodged on 4th April 2007 to be received and allow the application to be amended in terms thereof?
2. Was the Sheriff entitled on 5th April 2007 by way of case management procedure undertaken at a Pre-proof Hearing at Glasgow to hold that the syndrome or diagnosis characterised as fabricated or induced illness was no longer part of the case and any evidence about that would be deemed inadmissible at Proof?
3. Was the Sheriff entitled to restrict Dr Herbison's evidence should she be called as a witness to be confined to matters of fact and not opinion in particular in relation to Fabricated or induced illness?
4. Was the Sheriff entitled to hold that any non factual evidence to be given by a proposed defence witness Professor Jean Golding should be excluded?
5. Was the Sheriff entitled to hold that Professor Golding's opinion evidence may be rendered superfluous in the context of the case?"
It can be seen from the nature of the questions that the attack was upon the interlocutor of the learned sheriff of 5 April 2007 and not the factual findings made on the basis of the evidence led. At no time during the appeal was it submitted that the minute of amendment should have been refused by the learned sheriff. The attack was directed against the restriction in the ambit of any evidence which Dr Herbison and Professor Golding might give. Thus, in effect, only questions 2-5 were argued.
[4] Mr Targowski referred me to The Children's Hearing System by Sheriff Brian Kearney 2nd Edn at paragraphs 27.01, 28.10 and 28.11. From these paragraphs he submitted that when hearing a referral from a Children's Hearing the sheriff was acting as a judge and that the proceedings required to be taken and viewed by him in a judicial way. This was, properly, not challenged. He explained that when Dr Herbison's name had appeared on the list of witnesses, authority had been granted by the Scottish Legal Aid Board for the father to instruct an expert witness to comment on Dr Herbison's report of 19 December 2006. That expert was Professor Golding. Accordingly Professor Golding had been placed on the list of witnesses whom the father intended to lead in evidence. Mr Targowski then took me through a number of the productions from which he demonstrated that Dr Herbison had attended a number of meetings which were also attended by other professionals who had been called to give evidence by the Reporter. He explained to me that, in the event, Dr Herbison had not been called as a witness and neither had Professor Golding. However Sara McGuffog, a family therapist, Dr Carachi, a consultant surgeon, Dr Morton, a consultant psychiatrist, Dr Hookin, Evelyn Kane, a social worker and Linda Robb, a social worker, were called to give evidence. It was inevitable, submitted Mr Targowski, that these witnesses would have been privy to the diagnosis of Fabricated or Induced Illness expressed by Dr Herbison. Their evidence would thereby be influenced by that knowledge. Furthermore, the child who was the subject of the Children's Hearing, had a sister, AAG. AAG had died. Dr Herbison had expressed concerns regarding AAG's death. Dr Herbison concluded that the parents' Fabricated and Induced Illness had adversely impacted on the life of AAG. Dr Herbison had called for a post mortem to be carried out on AAG but unfortunately the request came too late. This view would have been known to at least some of the witnesses who were called by the Reporter. Since the diagnosis was no longer part of the Reporter's case the parents were prejudiced in that they could not challenge the diagnosis by virtue of the learned sheriff's decision on 5 April. The parents were thus restricted in the scope of their cross-examination. They had to contend with the influence which Dr Herbison's diagnosis would have had on the evidence of the other witnesses without being able to challenge that diagnosis. The learned sheriff had no entitlement to hold at a pre-proof hearing that evidence with regard to a diagnosis of Fabricated or Induced Illness would be inadmissible at the proof. The learned sheriff had no entitlement to hold, as he did, that Dr Herbison's evidence would be confined to matters of fact and not opinion. Furthermore he was not entitled to hold, as he had done, that Professor Golding's evidence should be restricted to factual evidence. The learned sheriff had no power to limit the scope of the proof. In Mr Targowski's submission the rules bound the learned sheriff to hear evidence led by the Reporter and accordingly the ruling of 5 April 2007 was a breach of Rule 3.47(1) of the Act of Sederunt (Child Care and Maintenance Rules) 1997. The nature of the restriction of the proof was prejudicial and unwarranted. Mr Targowski had researched the issue but had not found any authority to support his proposition.
[5] The Reporter relied upon the reasoning adopted by the learned sheriff in his stated case. The Reporter had come to the view that the diagnosis of the parents by Dr Herbison was irrelevant when seeking to establish grounds of referral for the children. It was logical that once the learned sheriff had allowed statements of fact seven and ten to be deleted from the statement of facts that any evidence in relation to Fabricated or Induced Illness syndrome could not be led as it was no longer part of the Reporter's case. No objection had been made at the time to the learned sheriff's ruling other than that which is set out in paragraph [2] of this Note.
[6] Mr O'Donnell as curator ad litem adopted the submissions made on behalf of the Reporter. He submitted that once the minute of amendment had been allowed the learned sheriff's ruling was the only logical conclusion to which one could come. He said that each witness had been robustly cross-examined under reference to the documents as to the extent the diagnosis by Dr Herbison had affected their judgement. In his submission Dr Herbison's opinion could hardly have influenced the evidence of fact which they gave. In any event the learned sheriff, exercising a judicial function, would be able to assess whether their credibility and reliability was in any way affected by having been exposed to the views of Dr Herbison. He referred me to Professor Norrie's book Children's Hearings in Scotland (2nd Edn) at pages 26 and 27 where the learned author opines that the effect of a parent's illness on the child was much more significant than the reason for the lack of care.
[7] In reply Mr Targowski took me through the response given by some of the witnesses when asked about the effect which Dr Herbison's views had on their evidence. Evelyn Kane had said that it was clear that Dr Herbison had suspicions regarding the death of AAG. Dr Morton had said that the discussion of AAG had been an important fact. Ms McGuffog had been over the records and knew what was in them. Dr Hookin had seen the various productions and had found them very concerning. He was aware of the diagnosis given by Dr Herbison. He stated that the child was at risk by virtue of the diagnosis although that was not the only reason why the child was at risk. This had formed part of Mr Targowski's submissions to the learned sheriff.
[8] In my opinion the learned sheriff was perfectly entitled to do that which he did. Recently there have been a number of cases in the Sheriff Court involving referrals from a Children's Hearing which have lasted for many weeks and on some occasions months. Concern has been expressed that some proceedings might have been unnecessarily long. It was therefore entirely appropriate that there should have been pre-proof hearings in this case to ascertain more fully what evidence the parties intended to lead. Such pre-proof hearings have the potential to shorten the evidential hearing to a considerable extent. That happened in this case. A very substantial body of fact was agreed in a minute of admissions entered into by the parties. It also enabled the Reporter to focus upon what facts he needed to establish. He decided that he was no longer relying upon the diagnosis of Fabricated or Induced Illness syndrome which Dr Herbison had reached. It therefore seems to me that once the learned sheriff had allowed the statements of fact which made reference to this diagnosis to be deleted, the inevitable consequence was that no evidence could be led with regard to the diagnosis which Dr Herbison held. In the Note to his interlocutor of 5 April the learned sheriff was doing no more than stating the obvious. It was not he who decided that there would be only factual evidence led from Dr Herbison. That was a decision made by the Reporter when the Reporter sought to remove Dr Herbison's diagnosis from the ambit of the proof. I can see nothing whatsoever in the learned sheriff's Note of which I can be critical. If anything he is to be lauded. Given the background involving the longevity of other cases it was entirely appropriate that he should spell out the consequences which flowed from the minute of amendment being allowed. Indeed his interlocutor of 5 April was clearly designed to assist the parents. Mr Targowski had expressed concern that even although statements of fact seven and ten had been deleted it was still the intention of the Reporter to take Dr Herbison through her report without a "record" for such evidence. The learned sheriff in his Note seems to me to be addressing that concern by making it clear that Dr Herbison's evidence was not to extend beyond evidence of fact. The concern expressed by Mr Targowski before me had not been expressed until application was made for a Stated Case. It had been open to Mr Targowski to cross-examine each of the witnesses who gave evidence of fact as to the extent to which their evidence was influenced by their knowledge of Dr Herbison's views and diagnosis. I was told that this was done. We are here dealing with professional witnesses. The learned sheriff was in a position, exercising his judicial function, as it was emphasised by Mr Targowski he was performing at the time, to assess whether such knowledge had influenced the witnesses. Mr Targowski then made submissions to the learned sheriff regarding the reliability of the witnesses and how that reliability might have been affected by exposure to Dr Herbison's opinion. Given the terms of the Stated Case it is clear that the learned sheriff found the witnesses called by the Reporter to be both credible and reliable notwithstanding such exposure. Not one of the findings-in-fact made by the learned sheriff was challenged in the appeal.
[9] The learned sheriff puts it well in his Stated Case which I quote:-
"[8] The approach taken by the court was specifically designed to meet the objection raised on behalf of the parents. The effect of the minute of amendment was clear. It was equally clear therefore that any opinion evidence relating to fabricated or induced illness should not be allowed to creep back into the evidence. Accordingly, paragraphs (a) and (b) of the summary (see interlocutor and Note of 5 April) were intended to exclude irrelevant evidence thereby protecting the interests of the parents themselves.
[9] As I understood matters, it was accepted on behalf of both parents that the court's explicit exclusion of evidence regarding fabricated or induced illness and, in particular, any related opinion evidence from Dr Herbison meant that the stated opposition to the Reporter's minute of amendment was thereby deprived of any merit.
[10] With regard to Professor Jean Goldie (sic) who had been listed as a defence witness, it likewise appeared to the court that in the foregoing circumstances, her opinion evidence, in rebuttal of Dr Herbison's opinion, might be rendered superfluous. Once again, with a view to ensuring to that irrelevant opinion evidence did not encroach upon the proper basis for proof, the court held that any non-factual evidence to be given by Professor Goldie (sic) would be excluded in the same way as that of Dr Herbison. To my mind, that was a logical and measured approach.
[11] However, it must be stressed that come the proof hearing, no party to the Referral sought to call either of the foregoing experts. Accordingly, I was never, in fact, called upon to rule on the admissibility or otherwise of each witness' evidence."
[10] Rule 3.47(1) of the Act of Sederunt (Child Care and Maintenance Rules) 1997 is in the following terms:-
"In the case of any condition mentioned in section 52(2) of the Act (conditions relative to compulsory measures of supervision), the sheriff shall, in relation to any ground of referral which is in dispute, hear evidence tendered by or on behalf of the Principal Reporter, including evidence given pursuant to an application granted under rule 3.23."
I do not agree with Mr Targowski's submission that the learned sheriff's interlocutor of 5 April is in breach of the rule. All evidence tendered by the Principal Reporter was heard by the learned sheriff. In any event the rule seems to me to be conceived to give the Reporter an entitlement but not any other party. I heard no complaint from the Reporter.
[11] Finally, I was invited by Mr Targowski to comment on the decision of the Scottish Legal Aid Board not to grant legal aid to the parents for this appeal. I am happy to do so. In my opinion the Board was correct to refuse legal aid.