Scotland

Circumstances of the case

The case involved a four-year-old child who was removed from his parents’ care when he was three months old. He had been the victim of culpable and reckless conduct involving bodily injury and had been handled inappropriately and recklessly while in the sole care of his parents. Both parents accepted this to be the case but each denied having been the perpetrator or of knowing how it had happened. The child’s elder half-siblings had been adopted, themselves having been victims of neglect and injury while in the care of the mother.

The parents had continued to live together and another baby had been born to them. Late in the proceedings, the father said that he would leave the mother and wanted to take care of his son on his own. He was an Indian national with no right to remain and was completely dependent on the mother for benefits and a home. There were approved prospective adoptive carers ready and willing to assume permanent care of the child.

The local authority had applied to the Sheriff Court for a Permanence Order with authority to Adopt (POA) and the sheriff had not granted this. He was not satisfied that the evidence which had been presented by the local authority established that in relation to each of the parents, the child’s residence with that person was likely to be seriously detrimental to his welfare. Therefore the statutory ‘threshold test’ had not been met. The sheriff also took the view that the test should be applied at the point at which he was making his decision.

The Sheriff Appeal Court had taken the contrary view. They believed that the ‘threshold test’ should be applied at the point at which the child was removed from the care of his parents when reparative work in terms of parenting would have begun. They also disagreed with the sheriff in that they held that the test had been met; the child had been in the joint care of both parents when the injuries had been caused for which no satisfactory explanation had been provided by either parent. They took the view that the non-accidental injury of an infant in the joint care of two people meant that one of them was the perpetrator and that alone could satisy the test of the likelihood of serious detriment based on established fact.

Decision

The Inner House refused the appeal by majority decision. They agreed with the Appeal Court that the threshold tests had been met. The Sheriff Appeal Court had been correct in holding that the sheriff had erred in deciding that serious detriment required to be proved on the balance of probabilities where there were established facts.

The situation for the child was the same as at the point of injury. Even although the father was seeking sole care of the child, the Inner House held that either ‘he himself was responsible for the injuries or he has demonstrated his irresponsibility in denying the culpability of the child’s mother, with whom he continues to reside; thus placing any child living in the family at real risk of serious detriment’ (para 33).

Thereafter, the Sheriff Appeal Court was bound to reassess the matter and reach their own conclusions on the second question of whether the remaining tests in sub-sections 84(3) and 83(1)(d) were met, viz whether it would be better for the child that the orders be made.

The Inner House agreed with the Sheriff Appeal Court that the making of the POA was necessary for the following reasons:

Findings-in-fact and law:

It would be better that a Permanence Order be made than not. The making of the Order will safeguard and promote the child’s welfare.

This area of the law was examined in detail by the Inner House in Anderson v Imrie [2018] CSIH 14 (para111):

Where there has been no apparent error, and a decision reached which was available on the evidence to a judge acting properly and reasonably, then, everything else being equal, an appellate court should not attempt to form its own view, but should defer to the various advantages of the trial judge and recognise that he was in a better position to decide upon the correct outcome.

Circumstances of the case

ABC was the full 14-year-old brother of a seven-year-old child (DEF), who was the subject of a Compulsory Supervision Order (CSO) made by a Children’s Hearing in September 2017, which was reviewed and varied in December 2017. The Order included a measure which required DEF to reside with foster carers and which imposed restrictions in terms of the sibling contact.

Prior to 2016 the children had lived with their parents in their family home and while ABC had been removed from the family home in 2016, he had now returned. ABC had asked the Children’s Hearing to consider that he be deemed to be a ‘relevant person’ in respect of his brother, a request which was refused.

ABC therefore sought a judicial review of this decision claiming that notwithstanding his established family life, the decisions of the Children’s Hearing, which by definition could interfere with that family life, without his participation, were in the circumstances unlawful.

Discussion and disposal

Considerable reliance was placed on the UK Supreme Court’s consideration of this issue in the case of Principal Reporter v K 2011 SC (UKSC) 91. There, the court had confirmed, under reference to Johansen v Norway [1997] 23 EHRR 33 and L v Finland [1994] 18 EHRR 342, that any court order which regulates or restricts the ‘mutual enjoyment of each other’s company’ which ‘constitutes a fundamental element of family life’ will amount to an interference with that family life. The decision of a Children’s Hearing was specifically included as one that would constitute an interference with the family life of a child. Counsel for ABC submitted that those requirements were applicable to someone in ABC’s position. As he had established family life with DEF and the decisions of the Children’s Hearing could restrict or limit his enjoyment of family life with DEF, those decisions were capable of interfering with his right to respect for family life. The positive procedural obligations in respect of the Children’s Hearing process amounted to a requirement that ABC be involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interest.

However, in the particular circumstances of an individual such as ABC, who does not profess to have been involved in the upbringing of a child but who has nonetheless established family life/significant involvement with that child with which the decisions of the Children’s Hearing may interfere, the legislation is not drafted in a way that permits him to utilise the mechanism in sections 79–81 of the Children’s Hearings (Scotland) Act 2011, namely to have or have recently had significant involvement in the upbringing of the child, to be deemed a relevant person in order to participate fully and have a right of appeal against the Hearing’s decisions.

Lady Wise concluded that the section 81(3) test, even if purposively construed, was not quite sufficient as it stands to allow those such as ABC to claim a right so to participate. ABC’s particular position is that he has attained legal capacity and his parents cannot, therefore, formally represent his interests. Accordingly, his claim to participate in the Hearing is not one that can be subsumed within his parent’s right to complain on his behalf.

Lady Wise acknowledged that there may be many cases where the parents’ involvement as relevant persons would be sufficient to protect the interests of some or all of their children. Rather than imposing rights and obligations on siblings generally, this case concerned the inability of an individual who, by concession, has established family life with his sibling to participate fully in decisions that directly affect him.

In the circumstances of this case, the decisions of the Children’s Hearing interfered with that established family life. Lady Wise stated that:

The de facto position in family life is that sibling contact is unlimited. Far from conferring any right of contact on these siblings, the decisions of the Children’s Hearing altered that, first by imposing a CSO accommodating DEF away from the family unit and then by limiting the nature and frequency of any contact that was permitted…that ABC would be involved in any reintegration of DEF with the core family unit is self-evident …this places ABC squarely in the category of someone who has an interest not just in maintaining contact but in decisions about whether DEF will be re-integrated into the core family unit.

ABC will now be in a position to apply to Children’s Hearing or Pre-Hearing Panel to be considered as a deemed relevant person in respect of his brother. It will be for the Hearing to decide whether in all the circumstances of the case, he satisfies that test.

The precise wording of the reading down will be considered and the case brought out by Order in early course.

Comment

At any one time round 85% of children on the Scottish Adoption Register are subject to CSOs put in place by Children’s Hearings. This does not include those children for whom long-term fostering is the local authority’s plan; they too will usually be subject to CSOs.

Therefore, the decisions which are made by the Children’s Hearings in respect of these children will have an important impact in terms of any progress towards permanence.

Fundamental to Children’s Hearings is the right of children and relevant people in their lives to have opportunity to fully participate in decision-making. These adults are referred to as ‘relevant persons’ and there are two categories of such, namely automatic relevant persons and deemed relevant persons.

Each of the child’s parents and anyone else who has been granted Parental Rights and Responsibilities (PRRs) by a court order are automatic relevant persons. Also an automatic relevant person is a person granted PRRs under a POA and anyone granted parental responsibility by an English or Welsh court under the Children Act 1989 or the Adoption Act 2002.

This, unsurprisingly, means they have an automatic right to participate in the decision-making of a Children’s Hearing and it is not a right that can be removed by a Hearing.

The second category of relevant person is in relation to the ‘deemed’ relevant person who is defined as someone who has or who has recently had significant involvement in the upbringing of the child. There has been considerable case law around determining those who are deemed relevant persons and the interpretation of this was clarified in MT and AG v Anne Gerry (locality reporter) [2014] CSIH 108. That court recognised the importance of a blood tie between the child and person seeking relevant person status; also, where the child lived separately, the frequency and quality of contact between them and, importantly, the child’s perception of the importance of the relationship.

These decisions depend on the facts and circumstances of each case and so Hearings will thoroughly investigate the precise nature of the relationship to establish whether or not the person should be deemed to be a relevant person; however, once the Hearing is satisfied that the person fulfils the criteria, the Hearing has no discretion but to accord the status of relevant person. The situation will be reviewed at subsequent Hearings where it seems that a change in the relationship means that that person no longer fulfils the relevant person criteria.

The automatic and deemed relevant person has the same extensive rights within the Hearing. This includes the right to be invited to a Hearing, to attend with a representative to appeal the Hearing’s decision, to ask for a review of a CSO, to receive all papers before the Hearing and to have their views listened to within the Hearing.

Consultation

The aforementioned consultation seeks views on potential changes to Part One of the Children (Scotland) Act 1995 and on related matters. The consultation covers a wide range of issues that affect children including how the court considers the views of the child, support for the child, with whom a child should have contact, how children and victims of domestic abuse can be protected and how we can improve the process for children and young people.

Closing date for response has been extended to Friday 28 September 2018.

Judicial protocol in cross-border cases involving children (www.judiciary.uk/publications/new-judicial-protocol-for-childrens-cases/)

In July 2018, when Sir James Munby was President of the Family Division in England & Wales, and Lord Carloway, Lord President of Session and Lord Justice General, they agreed a new judicial protocol regulating direct judicial communications between Scotland, and England and Wales, in children’s cases.

The protocol provides for the direct exchange of information between judges in intra-UK cross-border cases involving children. It will allow for the prompt exchange of key information about any existing proceedings, and the legal options available to the court in each jurisdiction.

The protocol itself is eight pages long. There is an accompanying handbook on family law relating to children in Scotland and in England and Wales for use by judges in operating the Judicial Protocol, Lord President of Session and Lord Justice General. This is an invaluable, comprehensive and accessible explanation of family law in the different jurisdictions with contributions from Lynda Brabender QC in Scotland and Alex Verdan QC and Ruth Henke QC in England and Wales (https://www.judiciary.uk/publications/new-judicial-protocol-for-childrens-cases/).

Rhona Pollock, Legal Consultant, Adoption & Fostering Alliance Scotland, 2018