Petitioner: Mrs J Scott QC; Glasgow City Counsel Corporate Legal Services

Respondent: Miss Brabender; DWF Biggart Baillie

Interested Party: Mr Mickel; Hamilton Burns WS

10 July 2013

[1] This petition for judicial review came before me for an urgent hearing on 3 July 2013. The proceedings were raised following the granting of a child protection order, purportedly under section 37 of the Children's Hearings (Scotland) Act 2011, on 1 July 2013 by the sheriff at Glasgow. The 2011 Act now provides, by section 46, that the Principal Reporter must arrange a children's hearing to take place on the second working day after a child protection order under the legislation is made. The issue for discussion in this case is whether the Principal Reporter was obliged to arrange such a hearing in circumstances where it was considered on advice that the order made by the sheriff on 1 July 2013 was incompetent. The validity or otherwise of the sheriff's order depends upon a construction of the Children's Hearings (Scotland) Act 2011 (Transitional, Savings and Supplementary Provisions) Order 2013 SSI 2013/150.

[2] There was no opposition at the outset of the hearing before me that the usual orders for intimation and service should be dispensed with and that a hearing should be held. The consensus was that should the second working day following the grant of the child protection order pass without a hearing having been held, the child protection order, if competent, would be likely to fall. Counsel for the Reporter confirmed that if the petitioner was successful in the argument, a hearing could be convened in the afternoon of 3 July. If the respondent was successful, the Principal Reporter was prepared to make a fresh application for a child protection order if the petitioner would not do so.

[3] The facts insofar as relevant to my decision can be briefly stated. The case concerns two young boys, DM and CM who are five and three years old respectively. They are the children of GM and CAM, CAM being their mother. She was represented by Mr Mickel, solicitor advocate at the hearing before me. The two children were first removed from their parents pursuant to a child protection order granted under the Children (Scotland) Act 1995 on 19 April 2013. There followed a referral to the children's hearing before which there is on-going procedure. The children continued to be held under warrants granted by the children's hearing for a total of 66 days which is the maximum period available (section 66(8) 1995 Act). Following the expiry of that period the Reporter made an application to the sheriff at Glasgow for renewal of the warrant. Sheriff Reid at Glasgow refused that application on 1 July 2013. This came to the attention of the petitioner, who considered that the children were at risk of significant harm were they to be returned to their parents and made an application for a new child protection order to Sheriff Rae QC, also at Glasgow, who granted the application on the evening of that date.

Relevant provisions

[4] Statutory measures for the emergency protection of children in the form of child protection orders have been available for many years under the provisions of the Children (Scotland) Act 1995. Section 57 of that Act provides that such applications can be made by any person to a sheriff where there are reasonable grounds to believe that a child is suffering significant harm or will suffer such harm if not removed to and kept in a place of safety. The granting of a child protection order is a draconian measure taken only where there is a perceived need for urgent protection of a child. The provisions of sections 59 - 62 of the 1995 Act contain detailed requirements in relation to the duration, recall and variation of such orders. The provisions of the 1995 Act in relation to child protection orders are now replaced by sections 37 - 54 of the Children's Hearings (Scotland) Act 2011. The 2011 Act replaces not just the provisions on child protection orders, but introduces a new statutory scheme for the whole system of child protection and children's hearings previously contained within Part II of the 1995 Act. In order to deal, inter alia, with the transition from the 1995 Act to the 2011 Act, in relation to children already the subject of proceedings under Part II of the 1995 Act on the coming into force of the 2011 Act, the Scottish Ministers have made the Children's Hearings (Scotland) Act 2011 (Transitional, Savings and Supplementary Provisions) Order 2013 SSI 2013/150 ("the 2013 Order").

[5] The provisions of the 2013 Order insofar as germane to subject matter of this decision include the following definitions in Article 1. "Relevant proceedings" are defined as including, inter alia, any proceedings before a children's hearing under Part II of the 1995 Act. Article 1 also defines "the relevant date" as meaning the day on which section 7 of the 2011 Act is commenced. That date was 24 June 2013. Article 2 also provides that relevant proceedings are concluded when, in relation to any proceedings, the latest of one of four events occurs. For present purposes the relevant proceedings relating to the children who are the subject of this application would be concluded when a children's hearing or a sheriff discharged the referral under Part II of the 1995 Act.

[6] The central provisions of the 2013 Order relating to proceedings in progress under the 1995 Act on the coming into force of the 2011 Act insofar as relevant to this petition are in the following terms:-

"2. Proceedings in progress under the 1995 Act

(1) Subject to paragraphs (3) and (4) and the following provisions of this Order, the enactments specified in paragraph (2) continue to apply for all purposes on and after the relevant date as they would have applied immediately before the relevant date to relevant proceedings in relation to a child which have commenced but on the relevant date have not concluded, until those proceedings have concluded.

(2) The enactments specified for the purposes of paragraph (1) are -

(a) the 1995 Act;

(b) any subordinate legislation made wholly or partly under the 1995 Act;

(c) section 29 of the 1986 Act; and

(d) the Legal Aid (Scotland) (Children) Regulations 1997.

(3) Section 48 (transfer of case to another children's hearing) of the 1995 Act does not apply to relevant proceedings falling within paragraph (1).

3. Concurrent proceedings in relation to the same child

Where after the relevant date a child is the subject of on-going relevant proceedings under the 1995 Act by virtue of article 2 and further proceedings are to be brought in relation to that child, the 1995 Act applies to those further proceedings until they have concluded.

16. Measures for the emergency protection of children

(1) Despite article 2(1), where on or after the relevant date -

(a)

(i) a children's hearing arranged under section 59(2) of the 1995 Act (initial hearing of case of child subject to child protection order) is held; and

(ii) the child protection order is continued by the children's hearing under section 59(4) of that Act; or

(b) a child protection order is continued by a sheriff under section 60(12)(d) of that Act (duration, recall or variation of child protection order),

paragraphs (2) and (3) have effect.

(2) Notice received by the Principal Reporter of the making of the child protection order under section 57 of the 1995 Act (child protection orders) is to be treated for all purposes as if it had been notice of the making of the child protection order given to the Principal Reporter under section 43 of the 2011 Act (notice of child protection order).

(3) References to section 65(2) of the 1995 Act (referral to, and proceedings at, children's hearing) in sections 59(4) and 60(12)(d ) of that Act are to be read as references to section 69(2) of the 2011 Act (determination under section 66: referral to children's hearing) and the Principal Reporter must arrange a children's hearing in accordance with that subsection of the 2011 Act.

(4) A children's hearing arranged in accordance with paragraph (3) must take place no later than the eighth working day after the child protection order was implemented.

(5) The reference in paragraph (4) to the day on which the child protection order was implemented is to be construed in accordance with section 59(5)(a) and (b) of the 1995 Act."

Submissions for the petitioner

[7] Senior counsel for the petitioner, in support of a motion for an order for specific performance by the respondent of his statutory duty to arrange a children's hearing in respect of the said children pursuant to section 46(2) and (3) of the 2011 Act, put forward two main propositions. First, she argued that the Principal Reporter is obliged by section 46 of the 2011 Act to proceed on the basis that any child protection order pronounced by a sheriff is valid and effective until it is terminated or otherwise ceases to have effect. Secondly, she contended that the 2013 Order doesn't preclude a child protection order being made under the 2011 Act where the children concerned are already under supervision under the 1995 Act. So far as the first of those propositions was concerned, the short point made was that the Reporter was obliged to act on an ex facie valid order of court. In the absence of any application to set aside the order by way or suspension or reduction it remained in force. Reference was made to Isaacs v Robertson [1985] 1 AC 97. That was a decision of the Privy Council in an appeal from the court of appeal of St Vincent and the Grenadines. It was authority for the proposition that an order made by a court of unlimited jurisdiction had to be obeyed by the person against whom it was made unless and until it had been set aside by the court. The Reporter had not sought to suspend or reduce the decision and the natural parents of the children concerned had not yet appealed. Reference was also made to the decision of the court of appeal in Re B (Court's Jurisdiction) [2004] 2 FLR 741 at paragraph 69 where in a family law context the principal enunciated by the Privy Council in Isaacs v Robertson was cited with approval.

[8] So far as the proposition that the transitional Order of 2013 doesn't preclude an application for a child protection order being made under the 2011 Act was concerned, senior counsel contended that the starting point should be the primary legislation. Sections 37 - 39 of the 2011 Act contain express rules about the circumstances in which a child protection order can be made. There was no provision that such an order can only be made where the child is not already the subject of relevant proceedings. If that was the intended position it would have to be made clear as it would limit the situations in which the primary legislation could apply. Turning to the terms of the 2013 Order itself, counsel contended that article 3 of the 2013 Order should not be interpreted to mean that, if there were already 1995 Act proceedings, a party could not apply for a child protection order under the 2011 Act. It was contended that there was a conflict between article 3 and article 16 of the 2013 Order. While it was accepted that article 16(2) was consistent with the Principal Reporter receiving notice of a child protection order made under the 1995 Act after the coming into force of the 2011 Act, it should be noted that on receiving such notification the Reporter must treat such notice as if it was notice under the 2011 Act. There was an ambiguity in the provisions of the Order and a purposive construction should accordingly be given. It was suggested that there were two possible ways of resolving the matter. One was to decide that article 3 of the 2013 Order didn't apply to emergency proceedings at all. However counsel accepted that such an interpretation didn't sit well with the terms of article 16 of the Order. The second and the preferred method of construction was to ask whether article 3 operated to preclude the operation of sections 37 - 39 of the 2011 Act. In the absence of a clear provision that it did, a purposive construction that gave effect to the overall aim of protection of children should be applied. If article 3 was interpreted in such a way as to preclude 2011 Act applications there would be a material gap which would be inappropriate given the purpose of the legislation. Reference was made to the well-known authority on purposive construction of R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687. Counsel also contended that there was a clearly established principle of statutory interpretation that parliament did not intend an absurd result. If article 3 of the 2013 Order required to be interpreted so that no application under the 2011 Act could be made where the children concerned were already the subject of relevant proceedings absurd results could ensue. Reference was made to Bennion on Statutory Interpretation and R (on the application of Edison First Power Ltd) v Central Valuation Officer and Another [2003] 4 All ER 209. While it was accepted that the petitioner in this case was aware of the relevant proceedings concerning the children prior to the coming into force of the provisions in question, a decision on the matter was said to be important because there may well be an applicant, such as someone in the medical profession, who had a basis for making an application for a child protection order but who would have no way of knowing whether or not the children were the subject of relevant proceedings.

Submissions for the respondent

[9] The petitioner's motion for an order under section 45(b) of Court of Session Act 1988 for the respondent to arrange a children's hearing was opposed. Ms Brabender articulated four main propositions. First, she argued that the Reporter can only arrange a children's hearing where he had the statutory power to do so. That was the position under the 1995 Act and remains so under the 2011 Act. Without the statutory authority, the Reporter has no discretion to arrange a hearing. In relation to the children who are the subject matter of this petition, the Principal Reporter had no statutory duty to arrange a children's hearing because the 2011 Act has no application to those children. The application of the 2011 Act to those children is clearly and unambiguously removed by the 2013 Order. Secondly, it was said that the 2013 Order, when read as a whole, was clear and unambiguous and should be applied. Thirdly, it was argued that even if there was any ambiguity in the 2013 Order, there was no absurdity in the interpretation favoured by the respondent such that would require a purposive interpretation. In any event, there was said to be no real prejudice to any party as a competent child protection order could be sought immediately. There was no gap in the legislation in question. The purpose of the provisions was to separate those children who are already the subject of relevant proceedings and are protected by the 1995 Act from those who are not already protected by that legislation and who therefore fall within the provisions of the 2011 Act. The fourth proposition made was that the ability to cure any problem arising from the incompetent application was in the petitioner's own hands. The respondent had suggested that the petitioner should make a fresh 1995 Act application (for a child protection order) and the Council had refused to do so.

[10] Counsel for the respondent noted that there was no dispute that the two children DM and CM are the subject of relevant proceedings within the meaning of the 2013 Order and that those proceedings have not been concluded. It is understood that the natural parents oppose grounds for referral to the children's hearing, but that no proof on those disputed grounds has yet been fixed. The 2011 Act, which came into force on 24 June 2013, applies in all cases save those where transitional or savings provisions apply. The terms of the 2013 Order have to be read together and make all relevant transitional and savings provisions.

[11] Counsel for the respondent made clear that the Reporter had no criticism of Glasgow City Council's view that a further child protection order was required in respect of these children. All that had occurred was that an incompetent application using the wrong statute had been made. In a careful analysis of the various articles of the 2013 Order, Ms Brabender pointed out that article 3 of the Order referred back to article 2 in circumstances where (i) the child or children concerned were the subject of on-going relevant proceedings and (ii) further proceedings are brought in relation to that child or those children. If those two conditions are met, then the 1995 Act applies to those further proceedings. While further proceedings are not defined within the Order, it could only be that such proceedings would be of the same nature as the relevant proceedings, namely those formerly covered by Part II of the 1995 Act. That became clear once the further provisions of the 2013 Order were explored. For example, article 4 of the 2013 Order provides that children's hearings in relation to relevant proceedings commenced before the relevant date are treated for all purposes as if they were children's hearings constituted under the 1995 Act. There would be no need for such a provision if all new proceedings could be taken under the 2011 Act. Much of the argument centred on article 16 of the Order. Article 16(1) clearly envisages that children's hearings following the granting of child protection orders will take place under the 1995 Act provisions after the coming into force of the 2011 Act. The circumstances in which they do so will be where further proceedings are brought in relation to children who are already the subject of on‑going relevant proceedings. In relation to article 16(2) of the 2013 Order, this provision only applied where a child protection order had been made under the 1995 Act but after the coming into force of the 2011 Act. Albeit that the 1995 Act would apply to such a child protection order, there is specific provision for treating notice to the Principal Reporter as being treated for all purposes as if it had been notice under section 43 of the 2011 Act. Counsel explained that such a provision was required because of the extension of those to whom notice of such orders must be given under the 2011 Act. In order to ensure ECHR compliance, notice of child protection orders must now be given to any person who the Principal Reporter considers to have (or to recently have had) a significant involvement in the upbringing of the child. The provisions of article 16(3) (4) and (5) were also said to be significant in that they were specific provisions that were required to make sure that an eighth working day hearing, introduced by the 2011 Act, would take place, notwithstanding that a child protection order had to be made under the 1995 Act because the children were already the subject of relevant proceedings.

[12] Taking the provisions of the 2013 Order as a whole, counsel contended that it is clear that for children who are the subject of relevant proceedings which are not concluded at the time the 2011 Act and the Order came into force, any further proceedings relating to those children require to be taken under the 1995 Act rather than the 2011 Act. Accordingly the 2011 Act has no application to the children concerned other than where there are specific exceptions delineated in the saving provisions. So far as the argument that an ex facie valid order should be complied with was concerned, it should be noted that the order made by the sheriff was not an order against the Reporter. Any obligation on the Reporter only arises where a 2011 Act child protection order has been made. Because the 2011 Act doesn't apply to the children who are the subject matter of the application, neither did the statutory duty under section 46 of that Act apply. In any event, if the child protection order was, for the reasons argued, incompetent and a fundamental nullity, then there could be no child protection order "in force" in terms of section 46(1)(a) of the 2011 Act. There was nothing other than a hypothetical gap in the legislation and relative Order. In the unlikely event that someone who might not know there were relevant proceedings in relation to children sought to bring a child protection order application there might be said to be a wider interest point, but as only two applications had been made by someone other than the local authority or Principal Reporter in all of the years since the 1995 Act came into force, there was an insufficient basis to open up any public interest argument. The Reporter could not be expected to arrange a hearing on receiving notice of an order that was a fundamental nullity where a remedy was available and could be sought, either by the local authority or, in the interests of the children, by the Reporter himself.

Submissions for the natural mother

[13] Mr Mickel, solicitor advocate, appeared for the children's mother as an interested party. He explained that he regarded himself as having a very limited remit. His interest for the mother was that there should be an order that could be competently appealed. He tended to support the submissions made by senior counsel for the petitioners that the sheriff's order of 1 July 2013 was ex facie valid and should be followed unless set aside. His instructions were to seek an order for delivery of the children in the absence of any child protection order being in place at the end of the day on 3 July. He suggested that it could not be said that the order was void ab initio. He clarified that the solicitor representing the mother had been present and made submissions before both Sheriff Reid who refused the warrant on 1 July and Sheriff Rae who granted the child protection order, although he acknowledged that neither side had raised the issue of the 2013 Order.

Reply for the petitioner

[14] In a brief reply, senior counsel for the petitioner emphasised the importance of the subject matter of the petition. There would be a dilemma for any ordinary citizen who in all good conscience sought a child protection order, but who was unaware of which of the two categories, articulated by counsel for the respondent, the child fell into. Mrs Scott reiterated her argument that article 3 of the 2011 Order was not habile to exclude protection under the 2011 Act. The child protection order sought and obtained on 1 July was not in the category of "further proceedings" as referred to in article 3.

Decision

[15] In light of the urgency of the matter, I gave a decision ex tempore on 3 July. I now set out my reasons for that decision. The first point is that the petitioner in this case has presented a petition for judicial review of a decision of the Principal Reporter. The decision complained of is a refusal to arrange a children's hearing pursuant to an order made by Sheriff Rae on 1 July 2013. Before I could grant the order sought by the petitioner, I would require to be satisfied that the decisions taken by the Principal Reporter following intimation of the order of 1 July 2013 were unlawful, unreasonable in the Wednesbury sense, or in some other way perverse. Having considered the arguments made on behalf of the petitioner and the respondent, I have reached the view that there is nothing unlawful, unreasonable or perverse about the Reporter's decision in this particular case not to arrange such a hearing.

[16] In my view, the terms of the 2013 Order under discussion clearly provide that any fresh proceedings of a child protection nature in relation to children who are already the subject or relevant proceedings on the relevant date (23 June 2013) must be brought under the 1995 Act which continues to apply to them. Read as a whole the 2013 Order only makes sense if it is interpreted that way. The expression "further proceedings" in article 3 of the Order covers all further applications under Part II of the 1995 Act which would, but for articles 2 and 3, be commenced under the 2011 Act. It makes specific exceptions to the continued application of the 1995 Act where necessary (for example in relation to notice provisions so that they are ECHR compliant). Article 16 of the Order can only be properly understood if further proceedings under article 3 of the Order include child protection orders granted in respect of children who are already the subject of relevant proceedings on the relevant date. In this case, the petitioner was well aware that the children concerned were subject to relevant proceedings. The sheriff must be deemed to have been aware of it as the information about those proceedings is contained within the application made to her. Accordingly the only competent application that could be made to the sheriff for a child protection order was an application under the provisions of the 1995 Act. The provisions of that Act are saved in respect of such children so that there is continuity in the provisions that apply to all public law proceedings relevant to them. Where delegated legislation makes clear that a piece of primary legislation must apply to all further proceedings in respect of children already being protected under that legislation, it cannot be competent to present an application under the other piece of legislation, designed to apply to those children who are not the subject of on-going relevant proceedings at the time it comes into force. Accordingly, I consider that the Principal Reporter was correct to take the view that the order granted by the sheriff on 1 July 2013 was incompetent and a fundamental nullity.

[17] This court can only insist that a public authority complies with a statutory duty imposed upon it where the order that has the consequence of imposing that duty is competently made. The respondent has acted responsibly. His office made the petitioner aware that the order was, in his view, incompetent and suggested an appropriate remedy of applying for a competent child protection order under the 1995 Act. That remedy is still available. As the natural parent who is the only party opposing the making of a child protection order has already appeared and made representations on the substance of the making of such an order, it seemed to me that no party would be prejudiced by a fresh application. I considered also that it was difficult to see how the Reporter, having reached the decision that he did in relation to the competency of the child protection order could have acted otherwise. If an order is fundamentally null, then any procedure pursuant to it could also be regarded as incompetent. The view I have reached that the Reporter has acted responsibly and reasonably in this matter is fortified by the knowledge that his office arranged to draft a child protection order so that there was no question in this case of a decision being taken on the basis of statutory interpretation that might leave the children concerned without the immediate protection that it is perceived they need. There are situations involving the protection of children in which the court might overlook or defer consideration of an issue of procedural irregularity or even competence in order to preserve the interests of those children (Sloan v B [1991] SC 412). It seemed to me that this case did not present such a situation because another mechanism was immediately available for the protection said to be required.

[18] This petition came before the court as a matter of extreme urgency and was heard because of the concern that the child protection order would fall on the expiry of the second working day after it was made if no children's hearing was held. Nothing in this opinion should be taken as indicating that the proper course for an authority such as the Principal Reporter when faced with an incompetent order is anything other than to seek to suspend or reduce it by an application to this court. It was clear from the submissions made to me that the Principal Reporter would have taken such a course had this petition not been raised. It was decided that as there was a forum available for immediate discussion on the competence of the order made by the sheriff, it was unnecessary to raise a petition at the same time. In the particular circumstances of this case, I do not consider that was an unreasonable approach.

[19] Finally, I wish to record my gratitude to all counsel involved for the efficient and cooperative manner in which the hearing was presented. All sides were agreed that there was an issue of statutory interpretation on which a ruling was required. In the circumstances it was agreed that a finding of no expenses due to or by either party would be appropriate. I shall accordingly pronounce an interlocutor refusing the petition and making no order as to expenses.