SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B564/06

Act: Parties

Alt: Mr David Kidd, solicitor advocate, Biggart Baillie, Edinburgh

Aberdeen: 22^nd May 2007

The sheriff principal, having resumed consideration of the cause, refuses the two motions lodged by the appellants on 27 February 2007, answers all three questions of law in the stated case in the affirmative and recalls the interlocutor of the sheriff dated 15 November 2006; quoad ultra remits the cause to the sheriff in terms of section 51(14) of the Children (Scotland) Act 1995 and directs him to dismiss the appeal against the decision of the children's hearing dated 7 September 2006.

Note

[1] In this case the appellants are the natural parents of a child J who was born on 27 April 2006. J was referred to a children's hearing upon the grounds that she was likely (i) to suffer unnecessarily or (ii) to be impaired seriously in her health or development, due to a lack of parental care - see section 52(2)(c) of the Children (Scotland) Act 1995. It appears that these grounds were initially disputed by the appellants. But at a hearing at this court on 9 August 2006 Sheriff Cusine deemed that the grounds of referral had been established subject to certain amendments in the supporting statement of facts and remitted the case to the respondent to make arrangements for a children's hearing for consideration and determination of the case.

[2] On 7 September 2006 the children's hearing made a supervision requirement in terms of section 70(1) of the Act to the effect, in short, that J should reside in foster care and that the appellants should have supervised contact with her twice a week. The reasons given by the hearing for their decision included the following:-

The panel cannot consider the return of (J) to her parents until they have demonstrated that they are both drug free and methadone stable and there is a lifestyle in the future which accommodates (J's) future needs.

Contact was to remain unchanged at twice per week. An early review in 6 weeks was requested in order to allow the parents the opportunity to demonstrate the changes they have made in their lifestyles. The compulsory S.R. was considered necessary in order to give (J) the care and protection which she needs at this stage in her life.

[3] The appellants appealed to the sheriff against this decision in terms of section 51(1) of the Act. The appeal was lodged with the sheriff clerk on 28 September 2006. On 2 October 2006 Sheriff Cowan assigned 18 October 2006 as a diet for the hearing of the application - see rule 3.54 of the Child Care and Maintenance Rules 1997. On 18 October 2006 Sheriff McLernan, on the motion of the respondent, there being no objection, allowed the respondent fourteen days from that date to lodge answers and continued the hearing until 15 November 2006 to ascertain further procedure.

[4] On 30 October 2006 the children's hearing in exercise of its powers under section 73(9)(e) of the Act continued the supervision requirement. It was provided, in short, that J should remain in foster care and that the appellants should have contact with her at least three times a week. On 1 November 2006 a reporter in the respondent's office wrote to the sheriff clerk to say that the decision of the children's hearing dated 7 September 2006 had been superseded by the decision dated 30 October 2006. This letter was received in the sheriff clerk's office on 1 November 2006.

[5] On 15 November 2006 Sheriff Cusine heard parties on the appeal against the decision dated 7 September 2006. There were present at this hearing the reporter and both appellants. In addition, two lay representatives appeared, namely Mr David Porter for TB and Mr Michael Porter for AM - see rule 3.21 of the 1997 Rules. At the conclusion of this hearing the sheriff pronounced an interlocutor in the following terms:-

The sheriff, having heard parties, allows the appeal to be abandoned.

It is this interlocutor which is the subject of the present appeal to myself.

[6] On or about 23 November 2006 it appears that the appellants lodged with the sheriff clerk what purported to be an appeal in terms of section 51(1) of the Act against the decision of the children's hearing dated 30 October 2006. This appeal was put before Sheriff Cusine and the upshot was that on 24 November 2006 a member of the sheriff clerk's staff wrote to the appellants saying that the sheriff had considered their appeal and had requested that they make certain amendments to it. The letter continued:-

Your appeal has been lodged as being on time, but you should make these amendments and return the document to the sheriff clerk's office at the above address as soon as possible in order for us to fix a hearing.

[7] On 6 December 2006 the appeal against the decision of the hearing dated 30 October 2006 was lodged once more with the sheriff clerk. It was given the court reference B679/06. Looking at it, I get the impression that the amendments previously requested by the sheriff had not been made. But nothing turns on this for present purposes. On 12 December 2006 Sheriff Cusine assigned 10 January 2007 as a diet for the hearing of the appeal. In passing, I note that this diet was outwith the period of twenty eight days allowed by rule 3.54(5) of the 1997 Rules. But again nothing turns on this for present purposes.

[8] It seems that it was a pure coincidence that it was also on 12 December 2006 that the appellants lodged with the sheriff clerk an application for a stated case. It was evidently not appreciated at first in the sheriff clerk's office that this application constituted the starting point of an appeal to myself in terms of section 51(11)(a) of the Act against the interlocutor of Sheriff Cusine dated 15 November 2006. When the mistake was identified the process was put before Sheriff Cusine, and on 5 January 2007 he appended a note to his interlocutor of 15 November 2006 in the following terms:-

I was advised by the Reporter that a children's hearing was to be convened in the near future. Having pointed out to the appellants that the outcome of the appeal might be notified to them at or about the time of that hearing, they accepted that it would be sensible to abandon this appeal. They were advised that it would be open to them to appeal any decision made by the hearing.

[9] In terms of rule 3.59(3) what ought to have happened was that the sheriff should have issued a draft stated case within fourteen days of the lodging of the application for the stated case, namely 12 December 2006. As indicated, this did not happen (and plainly the sheriff cannot be faulted for not having issued a draft stated case when he did not know that one was required).

[10] The hearing on the appeal B679/06 duly took place before Sheriff Tierney on 10 January 2007. The same parties appeared as had appeared before Sheriff Cusine on 15 November 2006. The upshot was that Sheriff Tierney sisted the appeal pending the determination of the outstanding appeal to myself. As at today's date, the appeal B679/06 remains sisted.

[11] In due course the papers in the appeal to myself were put before me and on 17 January 2007 I appointed parties to be heard on further procedure only on 30 January 2007.

[12] The upshot of the hearing on 30 January 2007 was that, on the motion of the respondent and of consent, I pronounced an interlocutor in terms of which, in short, I remitted to the sheriff to issue a draft stated case in terms of rule 3.59(3) within fourteen days of that date and appointed the appeal to be heard on a date to be afterwards fixed. I appended a note to my interlocutor of that date. This speaks for itself and it is unnecessary that I should repeat its terms here.

[13] Sheriff Cusine duly issued a draft stated case and, following a hearing on adjustments on 22 February 2007, he stated and signed the case on 23 February 2007. It contains the following narrative of the proceedings before him:-

This Appeal called before me on 15 November 2006, Answers having been lodged and intimated on 1 November 2006. Mary Philp, Reporter, was present. The Appellants were also present. (AM) was represented by Michael Porter and (TB) was represented by David Porter. The Reporter made an opening submission that as a Children's Hearing had taken place on 30 October 2005, the appeal was now academic and should be dismissed given that it related to a decision of a Children's Hearing on 7 September 2006. The Reporter submitted that the decision of the Children's Hearing of 30 October 2006 superseded the decision of 7 September 2006. The Reporter explained that the decision of 30 October 2006 was more positive for the Appellants in that the Children's Hearing on 30 October 2006 had increased the level of contact to the Appellants with a view to the possibility of a placement at Richmondhill being pursued if the Appellants were able to sustain drug screenings which were methadone stable and illicit drug free. The Reporter advised me that the Appellants had submitted a number of clean samples. The Reporter advised me that the Social Work Department were looking to have the situation reviewed in the near future. I enquired if another Children's Hearing had been arranged to look at the situation anew. The Reporter advised that no Children's Hearing had yet been set down.

I explained to the Appellants that if they wished to exercise their right of appeal they should consider appealing the decision of 30 October 2006 which was the decision which was now in existence. I enquired of the Reporter whether it was open to the Appellants to appeal this decision. The Reporter replied that this was competent. Messrs Porter stated that they wished today's Appeal to proceed as a previous Sheriff had stated to them that it contained several very good points of appeal. I explained that they could pursue these points in any subsequent appeal in the future.

[14] This narrative was based on adjustments to the draft stated case which had been proposed by the respondent, and the sheriff records that he accepted them "as they accord with my recollection of what took place on 15 November 2006".

[15] In anticipation of the hearing on adjustments the appellants lodged a document which consisted of ten paragraphs. In the stated case the sheriff records that he was advised that the proposed adjustments to the draft stated case were those contained in paragraphs 2 and 3 of this document. The sheriff goes on to say that he rejected these because they did not accord with his recollection of what happened on 15 November 2006. Paragraphs 2 and 3 of the document are in the following terms:-

2. On 15th November 2006 the appeal by (TB) and (AM) against a decision of the Children's Hearing held on 7 September 2006 was listed to be heard in Aberdeen Sheriff Court. The appellants attended that hearing. The appellants wish to reiterate without adjustment the statement of the course of events at this hearing.

As originally stated in the note of appeal "At that hearing the parties sat down. The Reporter on behalf of the defenders then stated a motion to the Court that, because the option of a place at Richmondhill House residential facility was being considered and because the Children's Hearing of 30th October 2006 had increased contact to three times per week, the appeal no longer applied. Michael Porter on behalf of the appellants stated that the appellants wished to continue with the appeal. The Sheriff then asked the Reporter whether a date for review had been set, to which the Reporter replied that it had not. David Porter then said on behalf of the appellants that the Sheriff at the previous appeal hearing on 18th October 2006 had said there were matters in the appeal which were relevant not only to this case but potentially to others. The Sheriff replied "that's for another day". Nothing else was said and the hearing just came to an end." The interlocutor was not received but a copy was later given by the invariably helpful staff of the Sheriff Clerk's Office on a subsequent visit.

3. No discussion of the actual appeal took place at the hearing. No actual decision was announced by the Sheriff. No explanation of a decision was therefore made and all parties were uncertain as to what the decision was. The Reporter herself was originally under the impression that the appeal had been dismissed because of her motion, and not recorded as abandoned. If abandonment had been discussed, the Reporter would not have thought this. The appellants did not accept that the appeal should be abandoned because abandonment was never mentioned. It was specifically stated that they wished the appeal to continue in response to the reporter's motion. The only words the Sheriff directed to the appellants or their representatives were the final "that's for another day" in response to an attempt to raise matters. This indicates that the Sheriff knew these matters existed but chose not to hear the appellants. In any event, the note of appeal against the decision of the Children' s Hearing on 7th September contains numerous references to irregularities and points of law.

[16] The questions in the stated case are:

1. Did I err in law in allowing the appeal to be abandoned?

2. Did my narration in my interlocutor of 15 November 2006 that I was allowing the Appellants to abandon their appeal constitute an irregularity in the conduct of the case?

3. Did I err in law in not dismissing the appeal on the ground that it had become academic?

[17] For the sake of completeness I should mention at this point that on 27 February 2007 the appellants lodged with the sheriff clerk two motions in the appeal to myself. In terms of the first of these they moved the court to review the sheriff's interlocutor of 15 November 2006 and allow the appeal to proceed. In terms of the second they sought, in short, to challenge my conclusion, expressed in the note appended to my interlocutor of 30 January 2007, that Messrs Porter would not be suitable persons to represent the appellants at the forthcoming appeal hearing - see rule 3.21(2) of the 1997 Rules.

[18] In due course a diet for the hearing of the appellants' two motions and the appeal itself was assigned to take place on 25 April 2007.

[19] In the meantime a further children's hearing took place on 23 March 2007. The outcome of this was that the hearing continued the supervision requirement subject to a condition that J should reside in the care of her mother TB at Richmondhill House, Aberdeen. The reasons given for this decision included the following paragraph:-

The panel were told there is no spaces (sic) at Richmondhill at the moment by Social Work, however, they still felt this was the best placement for (J). In the interim, if a placement does not become available, contact should be increased to 3 hours, 3 times a week.

[20] In terms of paragraph 4(1) of the Children's Hearings (Transmission of Information etc) (Scotland) Regulations 1996 the local authority effectively had twenty two days from 23 March 2007 within which to arrange for J and TB to be accommodated at Richmondhill House. In the event it became apparent that this would not be possible and an application was therefore made for a review of the supervision requirement under section 73(4) of the Act - see paragraph 4(2) of the 1996 Regulations.

[21] The children's hearing duly reviewed the supervision requirement on 18 April 2007. As I understand what was said to me by the solicitor advocate for the respondent, the hearing was continued until a later date and the supervision requirement made on 23 March 2007 remained in force. At the same time, the hearing apparently issued a warrant to the effect that J should be kept in a place of safety in terms of section 69(7) of the Act. The solicitor advocate was evidently as puzzled as I was by this. But at all events it is plain that J's current status is governed by either or both of this warrant and the supervision requirement made on 23 March 2007. What is clear beyond peradventure is that the supervision requirement made on 7 September 2006 was superseded by the requirement made on 30 October 2006 which was itself superseded by the requirement made on 23 March 2007. (For the sake of completeness I should record that I was advised that it was expected that a place for TB and J at Richmondhill House would become available on or about 3 May 2007).

[22] At the hearing of the appeal I was addressed at length by TB from a prepared script, and briefly also by AM. In the event, they said nothing in support of their second motion to the effect that they should be represented by Messrs Porter. Instead they asked that each of these two gentlemen should be allowed to sit beside them to perform the role of what is known in England and Wales as a "McKenzie friend". I was shown an excerpt from the website of the Family Law Week (http://www.familylawweek.co.uk/library.asp?i=164) in which it is said:

A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions - for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court.

[23] The solicitor advocate for the respondent quite properly offered no opposition to this proposal on the basis that Messrs Porter confined themselves to the role outlined in this excerpt, and I therefore allowed them to sit beside the appellants and assist them along these lines.

[24] Opening the appeal, TB drew attention to the fact that the hearing before Sheriff Tierney on 10 January 2007 in the appeal B679/06 had taken place outwith the period of twenty eight days allowed by rule 3.54(5). She submitted that this hearing had therefore been incompetent with the result, so I understood her, that the supervision requirement which had been made on 30 October 2006 no longer had effect. The short answer to this is that it is nothing to the point that the hearing on 10 January 2007 may have been incompetent (and I do not say that it was) since the interlocutor under review in this appeal is not Sheriff Tierney's interlocutor but the interlocutor pronounced by Sheriff Cusine on 15 November 2006.

[25] TB drew attention next to the fact that the time limit specified in rule 3.59(3) for the issue of a draft stated case had not been met in this case. It was submitted that no proceedings could competently follow on the issue of the draft stated case. Presumably what was meant by this was that the present appeal to myself was incompetent. It was not suggested that the appeal should be dismissed on this ground, and indeed shortly before making this submission TB had submitted that I should review Sheriff Cusine's interlocutor of 15 November 2006, grant the present appeal and allow the appeal to the sheriff against the decision of the children's hearing of 7 September 2006 to proceed.

[26] It will be apparent that there is an inherent contradiction in these submissions, and for this reason alone I am unable to give effect to them. In any event, it should be recalled that my own interlocutor of 30 January 2007 was made of consent of the appellants. So they cannot in my opinion be heard to complain now that the time limit specified in rule 3.59(3) was not met.

[27] TB turned then to the events of 15 November 2006 and explained what, according to the appellants, had happened that day before Sheriff Cusine. In short, she maintained that, far from wanting to abandon their appeal, they had wished to proceed with it. The sheriff, so it was said, had effectively denied them their right to put their case in contravention of both section 51(1)(b) of the Act and article 6 of the European Convention on Human Rights. It followed that questions 1 and 2 in the stated case should be answered in the affirmative.

[28] The solicitor advocate for the respondent also submitted, rightly in my opinion, that question 2 should be answered in the affirmative. It is true that in his note dated 5 January 2007 the sheriff recorded that the appellants had "accepted that it would be sensible to abandon this appeal". It is true too that in the stated case he said that he did not accept the adjustments which had been proposed by the appellants (including the statement that the "appellants did not accept that the appeal should be abandoned because abandonment was never mentioned") as they did not accord with his recollection of what had happened on 15 November 2006. But these cannot stand alongside the sentence in the stated case which reads: "Messrs Porter stated that they wished today's appeal to proceed as a previous sheriff had stated to them that it contained several very good points of appeal". It will be recalled that this sentence formed part of the adjustments which had been proposed by the respondent and that later on in the stated case the sheriff noted that he had accepted these proposed adjustments "as they accord with my recollection of what took place on 15 November 2006".

[29] Faced with the conflict in the various accounts given by the sheriff of this issue, I think that I am bound to prefer the latter, and in light of this I consider that it is plain that, far from wanting to abandon their appeal on 15 November 2006, the appellants wished to insist upon it. It follows that the sheriff's having recorded in his interlocutor of 15 November 2006 that he was allowing the appeal to be abandoned did indeed constitute an irregularity in the conduct of the case.

[30] The solicitor advocate submitted that question 3 in the stated case should also be answered in the affirmative. He pointed out in short that, by the time the sheriff came to consider the appeal on 15 November 2006, the decision of the children's hearing dated 7 September 2006 had been superseded by the subsequent decision dated 30 October 2006. It followed that the question whether or not the earlier decision should be set aside was academic since, even if it were to be set aside, this would not have any practical effect on the arrangements for J's care which by then were governed by the decision of 30 October 2006.

[31] TB maintained that her and AM's appeal against the decision of 7 September 2006 was not academic on 15 November 2006, nor was it academic now. She submitted that this appeal raised numerous issues of fact and of law which were of major public interest. These included the operation of the drug testing and treatment regime in the case of parents of young children, the manner in which the children's hearing system operated in practice, its compatibility with the European Convention on Human Rights, the attitude and practice of the relevant authorities towards parents such as themselves who were seen as drug users, the formulaic application of drug test results to the determination of issues of child care, the reliability of reports prepared by social work departments and the question whether there had been an infringement of their rights as parents of J under both the European Convention and various specified resolutions of the United Nations.

[32] The majority of these issues were foreshadowed in the original appeal to the sheriff against the decision of 7 September 2006. The grounds of appeal were set out in considerable detail in thirty six numbered paragraphs which extended over some eight and a half pages of typescript. I do not doubt that, if this appeal had gone ahead, some interesting and important issues of law and practice might have been canvassed before the sheriff. But at the end of the day the best that he could have done for the appellants in the context of the appeal to him would have been to find that the decision of 7 September 2006 was not justified in all the circumstances of the case and to have allowed the appeal accordingly and taken one or other of the steps specified in paragraphs (a), (b) and (c) of section 51(5) of the Act. It is true that in terms of paragraph (c)(ii) the sheriff could in theory have discharged J from any further hearing or other proceeding in relation to the grounds for the referral of her case. Likewise in terms of paragraph (c)(iii) he could have substituted for the decision of 7 September 2006 any requirement which could have been imposed by the children's hearing under section 70 of the Act. But in practice in my opinion the sheriff could not have proceeded to take either of these courses so long as the decision of 30 October 2006 remained in force. The validity of this decision was not in issue in the appeal before the sheriff on 15 November 2006 and it would not therefore have been competent for him to have made any order in relation to it, least of all that it was not justified and should be set aside.

[33] It might have been a different matter if the appellants' appeal against the decision of 30 October 2006 had been lodged with the sheriff clerk before 15 November 2006. In that event it might have made sense to have conjoined the two appeals and to have disposed of them simultaneously. But, as indicated, the appeal against the decision of 30 October 2006 was not lodged with the sheriff clerk even in its original form until about 23 November 2006. So the possibility of conjoining the two appeals on 15 November 2006 did not arise and in my opinion the sheriff ought to have dismissed the earlier appeal on the ground that it had become academic in light of the subsequent decision dated 30 October 2006.

[34] For the sake of completeness I should perhaps add that all of the authorities to which I was referred on this branch of the case were decisions of either the House of Lords or the Inner House of the Court of Session. These were R v Secretary of State for the Home Department, ex parte Salem 1999 2 All ER 42, Ainsbury v Millington 1987 1 All ER 929, Rodenhurst v Chief Constable, Grampian Police, 1992 SLT 104, Humphries v S 1986 SLT 683, Sloan v B 1991 SC 412, Kennedy v M 1995 SLT 717 and EC and MC v Miller (Court of Session, 26 June 2003). The solicitor advocate for the respondent rightly posed the question whether, even if the present case did raise important issues of wider public interest, it was the function of a sheriff, or even a sheriff principal, to pronounce on these issues given that they were entirely academic in the context of the present appeal. For present purposes I need not express a concluded opinion on this question and I will only say that, even if it is in principle legitimate for a sheriff or a sheriff principal to express an opinion on a question that has become academic, he or she should exercise considerable caution before doing so.

[35] The solicitor advocate submitted that, on the assumption that questions 2 and 3 were answered in the affirmative, there would be no need for me to answer question 1 either way. TB on the other hand submitted that I should answer this question in the affirmative, and I am persuaded that this would be the appropriate course in light of the irregularity which has been identified in the answer to question 2.

[36] The solicitor advocate submitted in the alternative that I might refrain from answering any of the questions in the stated case on the basis that the entire proceedings, including the appeal to myself, were now academic in light of the decisions of the children's hearing dated 23 March and 18 April 2007. There is considerable force in this submission and, had it not been for the outstanding appeal to the sheriff against the decision of 30 October 2006, I think that I should have given effect to it and refrained accordingly from answering the questions in the stated case. But I think that it would be of assistance to the sheriff when he comes to dispose of the appeal against the decision of 30 October 2006 to have my answer to question 3 in the stated case and also, if only as a caution against any further misunderstanding, my answers to questions 1 and 2. To this extent I do not think that the appeal to myself is entirely academic and I have answered the three questions accordingly.

[37] Finally, the solicitor advocate submitted that in terms of section 51(14) of the Act I should remit the case to the sheriff for disposal with a direction that he should dismiss the appeal against the decision of 7 September 2006. This I have done. In view of rule 3.19 of the 1997 Rules I have not made any award of expenses, and for the same reason the sheriff should not make any award when he comes to dismiss the appeal.

[38] I have already mentioned that no argument was presented in support of the second of the two motions lodged by the appellants on 27 February 2007. Nor was any separate argument advanced in support of the first of these motions, and indeed it is difficult to see what the purpose of this was given that in terms of my interlocutor of 30 January 2007 I had already appointed the appeal to be heard on a date to be afterwards fixed. I have refused both motions accordingly.

[39] I have already mentioned too that TB addressed me at considerable length. The majority of her submissions bore upon the merits, not of the appeal to myself, but of the appeal to the sheriff against the decision of 7 September 2006. For this reason I have not thought it necessary to rehearse these submissions, or consider them, in this note.