INTHE MATTER OF A CHILD PROTECTION ORDER
2014SCEDIN63
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
JUDGMENT
of
SHERIFF WILLIAM HOLLIGAN
in the matter of a
CHILD PROTECTION ORDER
____________
EDINBURGH 18 November 2014
[1] By their very nature child protection orders (“CPOs”) are matters requiring urgent attention. They do not call for written judgments. The present matter was no exception. One of the consequences is that there is no opportunity for written consideration of practice and procedure. The case before me involved a hearing in which the applicant was a social worker who appeared without legal representation. The mother who had only very recently given birth left hospital to attend court and was represented by a solicitor. In the present matter I granted an order in limited terms but said I would give written reasons relating principally to the procedure followed in this, and I have to say, other cases which has given rise to some concern.
[2] CPOs are now governed by Part 5 of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”). Additional procedural rules are to be found in Part IV of chapter 3 of the Child Care and Maintenance Rules 1997 (as amended) (“the 1997 rules”).
[3] For present purposes the key provisions of the 2011 Act are as follows:-
“37(1) A person may apply to the sheriff for a child protection order in respect of a child.
(2) A child protection order is an order doing one or more of the following- –
(a) requiring any person in a position to do so to produce the child to a specified person,
(b) authorising the removal of the child by the specified person to a place of safety and the keeping of the child in that place,
(c) authorising the prevention of the removal of the child from any place where the child is staying (whether or not the child is resident there),
(d) authorising the carrying out… of an assessment of –
(i) the child’s health or development, or
(ii) the way in which the child has been or is being treated or neglected.
(3) a child protection order may also include any other authorisation or requirement necessary to safeguard or promote the welfare of the child.
…
(5) An application for a child protection order must –
(a) identify the applicant,
(b) in so far as is practicable, identify the child in respect of whom the order is sought,
(c) state the grounds on which the application is made, and
(d) be accompanied by supporting evidence, whether documentary or otherwise, sufficient to enable the sheriff to determine the application.
39(1) This section applies where an application for a child protection order in respect of a child is made by a local authority or other person.
(2) The sheriff may make the order if the sheriff is satisfied that –
(a) there are reasonable grounds to believe that –
(i) the child has been or is being treated in such a way that the child is suffering or is likely to suffer significant harm,
(ii) the child has been or is being neglected and as a result of the neglect the child is suffering or is likely to suffer significant harm,
(iii) the child is likely to suffer significant harm if the child is not removed to and kept in a place of safety, or
(iv) the child is likely to suffer significant harm if the child does not remain in the place at which the child is staying (whether or not the child is resident there), and
(b) the order is necessary to protect the child from harm or from further harm”.
[4] These provisions replace the measures contained in sections 57-60 of the Children (Scotland) Act 1995 (“the 1995 Act”). The enactment of these provisions in turn replaced the relevant parts of the Social Work (Scotland) Act 1968 (“the 1968 Act”) and in particular section 37. The 1995 Act provisions were enacted in response to criticism of the 1968 Act which was found to be unsuitable in a number of material respects. Put broadly, the provisions of the 1995 Act considerably tightened up the basis upon which an application could be made and set out a procedure which enabled parents to challenge the making of the order.
[5] There are several matters which arose in the present case and have arisen in others:
- Representation;
- Adequacy of material relied upon;
- Preparation of the application;
- Intimation of applications to parents and their attendance at the first calling.
[6] As a general observation the 2011 Act is framed in more specific terms than its predecessor which, in turn, was more detailed than the 1968 Act. Section 37 sets out the nature of the order. Sections 38 and 39 provide who may apply for the order. Section 38 applies only to local authorities. Read short, the section deals with circumstances in which the local authority is being denied access to a child where enquires are thought to be required in order to safeguard the welfare of the child. The application before me was not brought pursuant to that section but to section 39 which, in my experience, is by far the more common.
[7] Section 39 refers to an application made by “a local authority or other person”. In this court social workers employed by some local authorities routinely appear seeking CPOs. Certain local authorities instruct solicitors from their respective legal departments to appear. As a simple matter of construction if a social worker appears in their capacity as an employee of the local authority it is the local authority which is seeking the order. In my opinion, the reference to “or other person” in section 39(1) is intended to extend the category of persons who may seek the order to persons other than employees or representatives of the local authority. The “other person” part recognises that there may be circumstances where, in an emergency, someone other than a local authority may seek an order. I do not think it was ever intended that the “other person” would be an employee of a local authority. However, even if I am wrong in my construction of section 39(1) there are sound reasons, based upon experience, which makes legal representation on the part of the local authority appropriate and desirable. It is hard to envisage a more important order a court can grant than one removing a child from its parents (when I refer to “parents” more often than not it is the mother alone who is involved in the process). By very definition they are anxious and difficult matters. Sometimes they involve newly born babies in hospital. Many other orders of manifestly less importance are routinely sought by a solicitor. I confess to some surprise that CPOs are often sought by those not legally trained in such matters. The law in this area is not straightforward. In 2013 there were two reported cases in which CPOs were the subject of judicial review: (J v The Lord Advocate; E v The Lord Advocate 2013 SLT 347 (hereinafter “the J and E case”); Glasgow City Council Petitioner 2013 SLT 917). Apart from any other consideration it is unfair to expect social workers to be able to deal with the legal complexities of CPOs. Again, drawing from my experience, complications often arise because of the inadequacy of the paperwork. Legal input is required. In my opinion, where an application is brought pursuant to section 39 of the 2011 Act by the local authority, the local authority requires to appear by its solicitor (or for that matter advocate). I realise that this will impose a burden upon the legal departments at a time of budgetary pressure but that is a consequence of the legislation and of the nature of the orders.
[8] The second issue which arose both in the case before me, and more generally, concerns the application and the material produced to support it. Section 37(5)(c) and (d) set out what should be contained within an application for a CPO. Rule 3.30 of the 1997 Rules prescribes the use of Forms 47 and 48. Form 47 is intended for use by local authorities whether pursuant to section 38(2) or 39(2); Form 48 is intended for use by an “other person” pursuant to section 39(2). For reasons I have explained above, in cases where they appear, social workers tend to use Form 48. Even allowing for a degree of haste and lack of legal training, it is my experience that applications are often poorly prepared. Part 2 of the Forms requires specification of the grounds for the application. That seems to me to be a specific reference to the terms either of section 38(2) or section 39(2) (I shall leave out of account applications brought pursuant to section 38). For reasons I shall later explain I do not consider it is sufficient to refer generally to the section. The application should make clear which paragraph or paragraphs are said to apply. The specification is essential because it is the application of section 39(2) which forms the basis of the court’s power to grant the order. The Forms require the production of supporting evidence. Again, as a matter of experience, the Forms are often accompanied with a collection of papers which often do not direct attention to what material is relied upon to support the engagement of section 39(2). In an ideal world affidavits would be useful or a concise summary of the material relied upon in the format required in an initial writ. However, I realise that time constraints may make that difficult. It is the responsibility of the party moving the application to direct attention of the sheriff to the relevant material. It should not be left to the sheriff to read the material in order to decide what may or may not be relevant. Another area of difficulty is Part 3 of the Forms which requires that the applicant specifies the orders and directions sought. As was the case in the matter before me, the applications often do not set out in relevant detail exactly what is being sought by way of orders and directions. Given the importance of the orders it is essential that they are prepared with care. Sections 40-42 relate to directions as to non-disclosure; contact; and parental responsibilities and rights. Sometimes directions are sought; sometimes they have not been sought in the application but the oral submission makes clear that certain orders are essential in order to safeguard the welfare of the child. In coming to a decision as to the grant of an application for a CPO the court is bound by the welfare principle set out in section 25 of the 2011 Act. The terms of the order must be governed by similar considerations. (Section 27(2) of the 2011 Act specifically provides that the views of the child do not require to be taken into account). Often it is left to the sheriff to adjust the terms of the orders sought and that is, in my opinion, neither appropriate nor desirable. I am conscious that I was not addressed as to the difficulties which arise in the applications of sections 40-42. However, I think it can fairly be said that there are undecided issues as to whether an order in relation to parental rights and responsibilities in terms of section 42 can only be directed to those already holding those rights (Children’s Hearings in Scotland (Third Edition), Norrie pages 280-1) or whether the order is one directed to the local authority who may assume such rights and responsibilities as are conferred upon them by way of direction (Children’s Hearings in the Sheriff Court, Kearney, Second Edition paragraph 5.07). I have followed Sheriff Kearney’s approach. An order directed to the parents to fulfil parental rights and responsibilities is worthless if it cannot be enforced. For all practical purposes it cannot and certainly not as a matter of urgency. If the parents had fulfilled their parental responsibilities there would most likely be no need for the CPO in the first place. Section 37(2)(d) permits an assessment of the child’s health. Section 39(3) provides for “any other authorisation or requirement necessary to safeguard or promote the welfare of the child”. Accordingly, even if section 42 is limited to a direction to those holding rights and responsibilities, it seems to me that section 37(3) is, potentially at least, and subject to any relevant issue of consent on the part of the child, broad enough to permit such emergency medical measures which are necessary to safeguard and promote the welfare of the child.
[9] The next issue which arises is that of notification to parents and their attendance at the first hearing of a CPO. In order to examine that issue, it is necessary to examine the terms of section 39(2) which form the basis of the court’s power to make the order. The sheriff requires to be “satisfied that there are reasonable grounds to believe” certain matters. I do not consider that “satisfied” means that something requires to be proved by some formal process (see Furber v Furber 1999 SLT (Sh Ct) 26). Furthermore, the court has to be satisfied that there are reasonable grounds to believe certain matters, not that they actually do exist. There must, however, be sufficient evidence to determine the application (see section 37(5)(d)). Section 39(2)(a) is divided into four paragraphs. Although closely modelled upon sections 57(1)(a) of the 1995 Act there are differences. Section 57(1)(a)(i) referred to treatment or neglect leading to significant harm. Section 57(1)(a)(ii) provided for the possibility of future harm arising from such treatment or neglect. Section 39(2)(a) has broken down section 57(a)(i) and (ii) into four separate categories: (i) and (ii) refer to present and future treatment or neglect; (iii) refers to significant harm if not taken to a place of safety and (iv) to significant harm if the child does not remain in a place of safety. I confess it is not immediately apparent to me what (iii) and (iv) add to (i) and (ii), particularly when one considers the terms of section 39(2)(b) which provides that the order must be necessary to protect the child from that harm or from further harm. “Order” refers back to section 37(2) and that, read short, is the place of safety order. It may be that paragraph (iii) is intended to provide for a residual category not covered by paragraphs (i) and (ii). The proper construction of section 39(2)(a) is important because the applicant requires to satisfy the court as it its application. As I read them paragraphs (i)-(iv) are disjunctive; more than one paragraph may apply to the particular facts of the case. The sheriff is looking at the terms of section 39(2) at the time the application is made. The words “significant harm” appear throughout the section. It is also prefixed by “suffer”. Accordingly, attention should focus on the child’s experience and whether that child is, or is likely to, suffer significant harm. “Harm” is not defined in the 2011 Act (cf section 31 of the Children Act 1989). Harm can arise in many different ways and from different causes. I am not inclined to give harm a restricted meaning. Without limiting its generality, or attempting a definition, it is not, in my opinion, limited to the infliction of physical harm and includes matters affecting development, health and wellbeing and includes environment. The only qualification is that the harm be “significant”. The use of the word “significant” is unsurprising, given the nature of the order proposed and its consequences for both parents and child. The order cannot be made for trivial or minor reasons. It is also consistent with the emergency nature of the order. Section 57 was prefaced with the heading “Measures for the Emergency Protection of Children”. There is no equivalent heading in the 2011 Act, but I note that section 55 (“Applications to Justices of the Peace”) is headed “Other (my emphasis) Emergency Measures”, which suggests to me that section 37 is also to be considered an emergency measure. Another way to look at the nature of the harm is that it must be of such significance that an order removing the child from its parents is necessary. Implicit in that analysis is to ask, what is likely to happen if the order is not made?
[10] When considering the rights of various parties involved in the process of a CPO it is important to bear in mind the general scheme of the 2011 Act. One of the cardinal features of the scheme is that an order terminates after a maximum of eight working days (see section 54). In practice, the CPO will often lead to a children’s hearing arranged in terms of section 69 of the 2011 Act. In essence, the referral proceedings take over from the CPO. A CPO is not designed as a long-term measure. Nor is it intended as a forum to debate the long term care arrangements for the child. Secondly, within that eight day period there are important safeguards. Read short, sections 45-47 provide that the Principal Reporter must arrange for a children’s hearing to take place on the second working day after the day in which the CPO is made. Separately, Sections 48-51 provide a mechanism for an application for variation or termination of the CPO by the sheriff. Section 51(3) provides that such application must be determined within three working days after the day in which it was made. Section 47(1) and 51(5) provide for the termination of the order if the children’s hearing or sheriff respectively are not satisfied that the conditions for making the order are met. Accordingly, as I read them, these provisions do not impose any onus upon the person opposing the order or seeking its recall. The relevant tribunal requires to consider whether or not the order should be continued having regard to all the material that is put before it and the submissions made. In particular, the calling before the children’s hearing is not a “rubber stamp” of the original application. The facts may not be as were first thought; it may be that that is the first time at which parents or other relevant persons can give their account; the directions and orders may no longer be appropriate. (I will refer to the procedures before the children’s hearing and sheriff as “the review procedures”)
[11] In my experience it was never the practice for parents to be given notification of an intention to apply for a CPO or an opportunity to be heard at the first calling. Under the 1995 Act, and the 1997 Rules then in force there was no procedural mechanism to allow this to be done. The 2011 Act and the 1997 Rules are no different in that respect. So much is consistent with the CPO scheme. As I have said, it is intended as an emergency measure the result of which is to remove the child from the parents and keep that child in a place of safety. Since the J and E case in some cases the practice has developed for parents to be notified by the social work department, without the knowledge of the court, not only of the intention of the local authority to apply for a CPO but also when it is anticipated the CPO will be heard. It is important to consider just what the J and E case actually decided. The case involved judicial review of decisions by local authorities seeking CPOs. The Lord Ordinary set out his understanding of the factual position in paragraphs [28] to [31] of his opinion. Put shortly, both mothers had only just given birth to their respective children and were in hospital. Both mothers were aware of the intention of the local authority to seek a CPO. Both had legal representation. Both wanted to lodge caveats in relation to an application for a CPO. Neither mother was likely to leave hospital with their respective babies. The petitions were brought arising out of decisions made pursuant to the 1995 Act. There were two issues raised pursuant to alleged incompatibility with the petitioners’ rights in terms of Articles 6 and 8 of the European Convention on Human Rights (“the Convention”). The remedy sought was that a declarator of incompatibility pursuant to section 6 of the Human Rights Act 1998 (“the 1998 Act”). I need not concern myself with the argument concerning the lodging of the caveat. Of more general importance is the application of Article 8 to the grant of a CPO. As I read the opinion of the Lord Ordinary, there was a measure of agreement between the parties as to the application of Article 8. In paragraph [22] of his opinion, the Lord Ordinary records there was no dispute that the interference with Article 8 rights by the grant of a CPO was in accordance with the law and that it pursued a legitimate aim. The issue between the parties was whether the interference with the Article 8 rights of the mothers was necessary in a democratic society, in other words, whether it was proportionate. In the course of his opinion, the Lord Ordinary made reference to the case of K & T v Finland (2001) 36 EHRR 18, particularly at paragraphs 166-168. The opinion of the European Court of Human Rights, and so much I think was accepted by the Lord Ordinary, was to the effect that in cases of urgency it is legitimate to make decisions without reference to the parents of a child. In deciding whether to proceed without reference to the parents, the Lord Ordinary adopted (at paragraph [32]) dicta of Munby J in X Local Authority v B (Emergency Protection Orders) [2004] EWHC 2015. The passages referred to (paragraphs 52 and 53) narrate that there must exist “a compelling case for applying without first giving the parents notice” and where there exists “an emergency or other great urgency”. The application with which Munby J was dealing was brought pursuant to English legislation. It does seem to me important to note that, at paragraphs 36-38 of his reasons for judgement, his Lordship made a series of trenchant criticisms of the statutory scheme laid down in the Children Act 1989 (summarised in paragraph 38) which were to the effect that a child could be removed from a parent for up to 15 days without there being any right of appeal; that a child can be removed by an ex parte (without notice) EPO and without any written or oral reasons having to be given for two days; or that no steps to set aside even an ex parte EPO can be taken for three days. Accordingly, and allowing for my limited understanding of English procedure, his Lordship’s observations as to the exclusion of parents can be said to be unsurprising. Section 31 of the Children Act 1989 (referred to by Munby J) contains terminology identical to section 39 of the 2011 Act. (As I have said, “significant harm” is a defined term in the Children Act 1989 but not in the 2011 Act.) English procedure is very different from Scottish procedure. I cannot help but observe that it may be advisable not to use English terminology in Scottish legislation because of the different regimes in place, especially where, as here, the procedure surrounding the various orders are very different. The observations of Munby J as to English procedure can be contrasted with the review procedure. In my opinion, the ratio of the J and E case is narrow and turns upon its own facts. Put shortly, given the factual position found by the Lord Ordinary, (and that clearly presented difficulties –see paragraph [28] of the opinion) at the time the orders were sought there was no likelihood that either mother would leave the hospital with their baby. On that view, the order could not be said to be necessary within the meaning of section 39(2)(b). Secondly, the Jand E case concerned the provisions of the now repealed 1995 Act. There is new legislation. It respectfully appears to me that the Lord Ordinary’s reference to the dicta of Munby J may have been misunderstood. The dicta have to be seen in the context in which they were expressed. As the Lord Ordinary himself said at paragraph [32] there is no need to intimate an application to the parents where intimation may give rise to a risk to the child or any delay in seeking an order might endanger the child’s health or well-being. I have said enough as to the interpretation of section 39 to make clear the high test which requires to be satisfied before an order can be made. In short, the order anticipates that intimation will be not be made to the parents because of the nature of the emergency. So far as the Convention is concerned the 1998 Act imposes upon the court an obligation to construe legislation in accordance with Convention rights. The report of the Lord Ordinary’s opinion does not point to the provisions of the 1995 Act which fell to be interpreted in a particular way. I doubt that Article 8 adds much to the existing state of the law. The only issue in the J and E case relevant for present purposes was that of proportionality. For my own part, I would have thought that the proportionality aspect of Article 8, as it applies to the present type of case, arises in the construction of necessity as set out in section 39(2)(b).
[12] A further matter arises. In the course of his opinion, the Lord Ordinary suggested that a hearing to allow the parents to be heard could have been dealt with and arranged expeditiously by the sheriff court. If the Lord Ordinary meant that there be an inter partes hearing then, with great respect, I am not clear how that could have been done. There is no power given to the sheriff to continue consideration of an application. The legislation anticipates a single hearing. As I have said, there is no mechanism in either the 2011 Act or the 1997 Rules to permit that to happen. There are also practical considerations. I have had experience of applications involving both social workers and parents. As there is no provision in the legislation for service of the documents supporting the application it is extremely difficult for the parents to have any meaningful involvement in the process when they do not know, and have had no opportunity to consider, the material relied upon by the local authority, especially when it is, as I have said, often poorly prepared and disproportionately voluminous. Applications are often sought out of hours. Given the absence of representation there have been hearings with social workers on one side and parents on the other which have given rise to significant security issues for clerks and sheriffs.
[13] It may be helpful if I make certain observations based upon my experience of dealing with CPOs. CPOs often arise in two categories of case (there may of course be others): (1) the long term involvement case; (2) the new born baby case. By the former I mean a matter in which the child and family are well known to the social work department because of continuing concerns as to the parents’ ability to care for the child caused by mental health, drug or alcohol addiction, domestic violence issues or a combination thereof. The question which often arises is why a CPO is suddenly required. Sometimes there is a trigger for the application. However, in the absence of material which satisfies the terms of section 39(2) it may be that an application for grounds of referral with an interim compulsory supervision order in terms of section 93(5) is more appropriate. Alternatively, consent may be available in terms of section 25 of the 1995 Act. New born baby cases are particularly difficult. The case before me was such a case. Until the baby is born no operative procedural steps can be taken. The mother’s history, particularly if she has other children, together with her engagement with medical and other professionals, including social workers, may give rise to real concerns as to the well-being of a new baby when she leaves hospital. On the other hand separating a mother and baby is a drastic step. As I result of what appears to me to be a misinterpretation of the J and E case I and other sheriffs have had cases in which mothers of new born children have left their hospital bed to come to court, sometimes by public transport, to oppose the making of a CPO. On any view that is highly undesirable and, if the terms of section 39(2) are truly satisfied, neither necessary not appropriate. In practice, the hearing ends up leading to a discussion as to longer term care plans which, as I have said, is not the purpose of a CPO. Whether there are better alternatives to deal with such issues is beyond the scope of this decision. I do say that cases of this nature often raise important and difficult issues as to the terms of orders for contact between mother and child and the fulfilment of parental rights and responsibilities.
[14] I am conscious that in writing this judgement I did not have the benefit of being addressed on some of the issues. That is not a criticism of those involved in bringing the application. It is a reflection of the way in which these matters arise. However, I consider that the importance and difficulties which have arisen dictate the provision of this judgement. I am quite prepared to reconsider the views I have expressed should they arise for debate in another case.