Scotland

Reclaiming motion of decision to grant a POA terminating contact

West Lothian Council v MB and KV

Court of Session, Edinburgh, Second Division of the Inner House

Lady Dorrian (Lord Justice Clerk) and Lords Malcolm and McGhie

20 July 2016 [2016] CSIH 60

This case is a reclaiming motion (appeal) of the Lord Ordinary’s decision reported in Adoption & Fostering 40(1) earlier in 2016. A Permanence Order for authority to Adopt (POA) was granted to West Lothian Council and here, the parents sought to have this decision reduced in its entirety. The Council did not contest the appeal in respect of the adoption aspect of the decision because it would have been difficult to support the reasoning of the original judgment, not because the local authority doubted that adoption was in the child’s best interests.

The criticisms of the Lord Ordinary’s decision in relation to the issue of authority to adopt were that he did not address the likelihood of the child being placed for adoption and that he addressed the matter of the welfare of the child throughout her childhood but not specifically throughout her life. Furthermore, he dispensed with parental consent to adoption on the basis that the parents were unable to satisfactorily discharge their parental responsibilities and discharge those rights, and were unlikely to continue to be able to so do and that the child’s welfare required dispensing with the parental consent. Either reason should have been given or clarity provided that the welfare element was satisfied on an esto basis.

The local authority resisted the appeal in respect of the making of the Permanence Order (PO). The parents raised questions as to whether the Lord Ordinary had applied the threshold test referred to in the case of TW v Aberdeenshire Council [2012] CSIH 37, 2013 SC 108. This sets out the correct approach in relation to section 84(5) of the 2007 Act. It deals with, among other things, the need for the court to be satisfied before making a PO that there is no person with parental rights and responsibilities who has the right to have the child living with them or otherwise to regulate the child's residence, or where there is such a person, the child’s residence with the person is, or is likely to be, seriously detrimental to the welfare of the child. The parents also challenged whether he had considered the need to promote the child’s welfare throughout childhood as a paramount consideration, whether he had made sufficient findings to allow the application of the relevant tests and, finally, whether his decision in respect of contact could stand.

The court supported the decision of the Lord Ordinary, acknowledging that he is a family judge with a sound understanding of the relevant law to which he made sufficient and appropriate reference. Therefore, it is reasonable to infer that in reaching his conclusions, he had identified and applied the correct test.

The court stated: ‘Even if we had not been satisfied as to the adequacy of the Lord Ordinary’s expressed opinion, had the matter been at large for this court, we would have made a Permanence Order.’

In relation to contact, the Lord Ordinary’s decision was made in the context of an anticipated adoption, a situation that no longer prevailed before the court who were considering a PO. Therefore, it was appropriate that the matter of contact should be appropriately addressed in an application to vary the ancillary provisions of the PO or by agreement between the parties, taking account of the up-to-date circumstances of the child and parents and the local authority’s position.

While the decision to grant the PO was upheld, the reclaiming motion was allowed to the extent of quashing the grant of authority to adopt, and removal of the prohibition on contact.

The parents’ right to challenge untested statements in Children’s Hearings proceedings

JS & CS v Children’s Reporter

Court of Session, Edinburgh, Extra Division of the Inner House

Lords Menzies, Brodie and Drummond Young

6 July 2016 [2016] CSIH 74

This case involved Grounds for Referral which had not been accepted at Children’s Hearing and were remitted to the sheriff for findings and remitted by the Sheriff Principal to the Court of Session. That court could consider how sheriffs should properly exercise their case management function in relation to hearings under section 101 of the 2011 Act.

Three children from a family of five children had been referred to a Hearing by the Reporter to the Children's Panel after one of them and two of their siblings had made allegations that their father had assaulted them and their mother had allowed this to happen. The children had been interviewed by police and social workers shortly after the disclosures had been made and the minutes of the joint interview investigations (JIIs) submitted to the court. The parents had not been permitted to challenge the children about their statements at the time nor were they permitted to do so by the sheriff in court.

The Appeal Court considered the sheriff’s discretion when deciding whether to allow collateral evidence to be presented, the consideration needed in applying provisions under the Vulnerable Witness Act and the question of whether there had been a sufficient counterbalancing between the rights of the parents and the welfare of the children.

The sheriff was held to have been correct in regarding as collateral and therefore inadmissible the proposed evidence in relation to allegedly false prior allegations having been made. These had no direct bearing on the facts and could serve to reduce the weight placed on the testimony given in relation to the current case. The law is discussed in M v Her Majesty’s Advocate by the Lord Justice Clerk (Carloway) at paras [27] to [41], by Lord Clarke at paras [48] to [53], by Lord Menzies at paras [55] and [56] and by Lady Cosgrove at paras [59] and [60].

The hearing was conducted under section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 and as such the sheriff was bound to consider the expeditious determination of the evidence under Rule 3.16A of the Child Care and Maintenance Rules 1997. Courts seek to avoid drift and delay in cases involving children and the purpose of this rule is to assist sheriffs in controlling proceedings and bringing them to an early conclusion. Therefore, a sheriff indisputably has the power to exclude even admissible evidence, but the context of the whole proceedings must be looked at to determine whether this power was appropriately exercised.

The sheriff was concerned that the children’s welfare might be affected by appearing in court. Thus, the sheriff’s concern about the welfare of the children, if compelled to give evidence, is consistent with the ‘widely accepted view’ that requiring children to give evidence in the way that evidence usually is given in court is likely to be distressing and may be damaging (see also Re W at paras 7, 10, 17, 18, 27 and 30). The Appeal Court referred to Lord Mackay of Drumadoon’s opinion in Scottish Ministers v Stirton and Anderson [2009] CSOH 61 at para 23:

However, there were other rights and interests in play, namely those of the parents who need to have an opportunity to challenge disputed evidence. The issue was the conduct of proceedings at the instance of a public authority with a view to a significant interference in the family life of the children and their parents, as guaranteed by Article 8 of the European Convention.

The court was referred to the case of Schatschaschwili v Germany Court (Grand Chamber)), [2015] ECHR 1113 where that court found that, in view of the importance of the statements of the only eyewitnesses to one of the offences of which Schatschaschwili had been convicted, the counterbalancing measures taken by the trial court had been insufficient to permit a fair and proper assessment of the reliability of the untested evidence. Reference was made to the three steps adopted in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. That approach requires the court to examine: Was there good reason for the absence of the witness? Was the hearsay statement relied upon the sole or decisive reason for the decision in question? Were there counterbalancing factors which compensated for such handicaps as the admission of untested evidence gave rise to?

Crucially, the nature of the JIIs meant that neither parent had participated as contradictors or had the opportunity to test the allegations made by the children against them. Given this weakness of the hearsay evidence, the sheriff had to give consideration to what best could be done to allow the parents to put forward their ‘defence’. The children's hearsay statements were indeed decisive, if not the principal reason for their referral to the Children's Reporter and later a Children's Hearing, and the sheriff's finding established the Grounds for Referral.

The court was not satisfied that detailed consideration had been given to the application of the special measures that would allow the parents to test or question the evidence of the children. Protection is provided by special measures set out under the Vulnerable Witnesses Act 2004, designed to reduce or prevent harm to children when giving evidence in court. Since the Reporter had asked that the sheriff depart from reliance on ‘best evidence’ – namely direct testimony – he should have presented argument supporting that position. Matters should have been continued for consideration of these.

Instead, the onus shifted unfairly onto the parents who were expected to justify their claim that the eliciting of direct evidence was necessary. In short, direct testimony should be regarded as the ‘default position’ and any party wishing to deviate from this must offer sound argument to support their contention that something other is required.

Therefore, the parents had been deprived of a fair hearing and the reclaiming motion was successful.

Review of how children give evidence in criminal trails

At a legal conference hosted by Justice for Children on 14 October 2016, Justice Secretary Michael Matheson said children should be spared the trauma of giving evidence in a formal criminal court environment. The need for children to attend court as witnesses in a criminal trial should be eliminated. Court proceedings arising from Children’s Hearings are sui generis Civil in nature. The principles referred to at the conference could appropriately be applied to those proceedings given the involvement of children and the stressful nature of giving evidence.

In his Evidence and Procedure Review, published last year, the then Lord Justice Clerk, Lord Carloway, referred to the Norwegian ‘Barnehus’ model of early interviews with a child witness. This involves a joint investigative interview which is video recorded and may subsequently be used during a criminal trial. It is conducted by a specially trained paediatric psychotherapist interviewer in a child-friendly room which is video-linked to an observation room. The interview is witnessed by the child’s advocate, social worker, the defence and prosecution teams, with a judge presiding. The Justice Secretary is also looking to England and Wales where use is made of pre-recorded evidence in chief and ground rules hearings as a possible model for Scotland to follow.

Engagement to implement named person

The Deputy First Minister, John Swinney, announced on 8 September that the Scottish Government remains absolutely committed to the named person service and would revise the parts of the legislation which the Supreme Court decided in July were incompatible with the ECHR. There would be a three-month period of engagement to gather input from practitioners undertaking the named person role, parents, charities, young people, those who support the policy and those with concerns. The Children’s Commissioner and the Information Commissioner will also be involved in discussions. It is intended that the service will commence in August 2017.

The Children’s Services Planning (Specified Date) (Scotland) Order 2016

This Order specifies 1 April 2017 as the date from which the first three-year period begins for the purposes of local authorities and health boards preparing a children’s services plan in accordance with the requirement placed on them by section 8(1) of the Children and Young People (Scotland) Act 2014.

This means that the first children’s services plan which local authorities and health boards must prepare under Part 3 of the 2014 Act should plan the provision of children’s services and related services in their areas during the period from 1 April 2017 to 1 April 2020.

Rhona Pollock, Legal Consultant, Adoption & Fostering Alliance Scotland, prepared these notes.