Abstract
The following cases are available on the Scottish Courts website: www.scotcourts.gov.uk
Decision of the Court in Petitions of City of Edinburgh Council for Permanence Orders re children AMDS & SDS v LL [2021] CSOH 24
Lady Wise
5 March 2021
Circumstances of the case
The Court of Session Outer House revoked the Compulsory Supervision Order (CSO) in relation to each child aged six and seven on the granting of the Permanence Order (PO). The local authority had sought POs in respect of the children. The mother had not opposed the granting of the PO but wanted the CSO to remain in place because she believed that this would offer her an opportunity to continue to be involved in the decision-making around the children, primarily in relation to any contact, and to receive reports and contribute to discussions about them. Otherwise, she was concerned that all decisions would be made by the local authority in looked after children (LAC) reviews, to which she would not be invited.
The mother had experienced mental health challenges, domestic abuse and drug misuse which had resulted in the children being looked after away from home since August 2016. Her life remained unpredictable, although her mental health had improved due to her appropriate use of medication. The father of the children had died in 2018.
The children were traumatised; they had to be placed separately, had experienced several placements and it was likely that they would be moved again to different carers. There had been no regular contact between the children and their mother for a number of years.
Decision
The court held there to be no rule that an existing CSO must cease to have effect when a PO is granted. The revocation of the CSO on the making of a PO is referred to in the Adoption and Children (Scotland) Act 2007, section 89. The court in each case must be satisfied that it ‘would no longer be necessary for the protection, guidance, treatment or control of the child’ to remain subject to the CSO on the granting of the PO. There appeared to have been an assumption in practice that this would automatically happen, rather than an explicit decision being made, taking account of the particular circumstances of each case. The court referred to the Children’s Hearings (Scotland) Act 2011, section 67(2)(i) to illustrate that a CSO and PO can competently operate together. This involves the situation where a child who is the subject of a PO may be referred to the children’s reporter where special measures are needed to support the child.
The court decided that the CSO should cease to exist in this case on the granting of the PO. A significant consideration for the court was the likelihood that the children would be required to attend Children’s Hearings in the future were the CSO not terminated. This would be contrary to their best interests and risk disrupting any settled placement. The judge noted that the decision may have been different had the children already attended Children’s Hearings or if there had been a sustained, uninterrupted pattern of contact already in place.
The Looked After Children (Scotland) Regulations 2009 (Regulations 4 & 5) offer the mother some continued input in decisions about her children’s lives. The local authority must assess the needs of a looked after child and prepare a Child’s Plan; in so doing they are required to consult with and take account of the mother’s views.
The court confirmed the recommendations contained in a joint report from two psychologists that the local authority would be the appropriate assessors and facilitators so far as the children’s needs moving forward were concerned. They should have the flexibility to make decisions about the children without the need for scrutiny. It would therefore also be appropriate to leave the regulation of future contact to the Social Work Department, taking account of the particular terms of the PO.
Interestingly, the court decided that on granting the PO the mother’s parental rights and responsibilities would not be completely extinguished. Some should be retained to ensure that she obtains reasonable information regarding the children’s health, development and welfare, and that this information is given before any LAC reviews. She must continue to be given sufficient information to enable her to engage meaningfully with the children in any future direct contact and to support them indirectly when she is well enough to do so. The court stated that this would benefit the children by making them ‘feel safer and more secure in their placement, reassured that their mother is kept up to date with their progress’.
A bespoke provision was inserted into the PO in relation to ongoing contact. It formalised the recommendations contained in the psychologists’ report which had the effect of removing decisions about contact from the sole discretion of the local authority. The mother has the right to seek to have the ancillary provisions of the PO varied under the Adoption and Children (Scotland) Act 2007, section 92. In the event of deviation from the recommendations of the ‘route map to contact’ as laid out in the psychologists’ report, any such application by the mother could refer to this provision.
Brother’s petition for damages and interdict against the Principal Reporter refused, but declarator granted where the court had not considered his views
Decision of the Court in MB v Principal Reporter [2021] CSOH 19
Lady Wise
16 February 2021
Circumstances of the case
MB is the brother of four girls, each of whom was made the subject of an Interim Compulsory Supervision Order (ICSO) while grounds for referral referred to the court in 2019 were under consideration. Normally, evidence would have been heard and a decision made as to the veracity of the grounds before now, but Covid-19 had delayed matters. The pandemic also had had a significant impact on the way that court proceedings operated in that the absence of oral hearings meant that the petitioner could make only written representations on the issue of contact with his siblings.
An ICSO requires to be reviewed at regular intervals by a Children’s Hearing and then by a court to establish whether the circumstances exist which require the ICSO being in place. The Children’s Hearings (Scotland) Act 2011, section 99(4) states that the Sheriff may further extend with or without variation the ICSO where satisfied that it is ‘necessary for the protection, guidance, treatment or control of the child’, taking account of the child’s circumstances.
Under the terms of each ICSO the brother was prohibited from contact with his sister. He was not challenging the terms of the ICSOs; he was challenging the procedures specifically in relation to the mode of intimation used by the reporter in notifying him that court hearings were taking place and the consequences in terms of his ECHR rights under Article 8 and Article 6.
Extensions of the ICSOs were granted at four separate court hearings in 2020 on 2 July, 13 August, 17 September and 4 November. Intimation was made informally by the children’s reporter either directly to him or through his solicitor. None of the four decisions was made without the petitioner having knowledge that the hearing was taking place and the outcome of each decision was communicated to him by the children’s reporter.
Decision
The UK Supreme Court’s recent decision in ABC v Principal Reporter [2020] UKSC 26 considered the issue of sibling participation in the Children’s Hearing system and provides binding authority on that issue. The current case examined whether the type of bespoke enquiry envisaged by that court had operated effectively. The court emphasised (at paragraph 13) that the primary focus of the Children’s Hearing must be the welfare of the child who is the subject of the proceedings.
The court identified and addressed four matters raised by the petitioner that relate to the issue of the level of participation that he stated he should have in the various ICSO applications, namely:
intimation of the application; the opportunity to address the decision-maker; access to relevant documents; intimation to the petitioner of the outcome of the court hearing and its reasons.
Intimation of the application
The procedure in respect of applications for ICSOs to the Sheriff are contained in the Act of Sederunt (Child Care and Maintenance Rules) 1997 (CCMR) SI 1997 No 291 which has been amended to take account of the provisions of the 2011 Act. There are standard forms for intimation of the ICSO application, including to any person the Sheriff determines should receive such intimation (Form 65D). There is also a prescribed form to be issued by a Sheriff granting an ICSO application (Form 65E). It is for the Sheriff to decide whether there are persons other than those suggested by the reporter to whom formal intimation should be given (Rule 3.64A). The Sheriff had considered the matter of formal intimation raised by the petitioner and decided that this was unnecessary, correspondence from the reporter being deemed sufficient notice. The Sheriff’s decision and stated reasons for refusing the application for formal intimation were within the ambit of reasonable decision-making.
The opportunity to address the decision-maker
ICSOs were granted by the court on four occasions. The petitioner tendered a submission to the court in relation to his contact with his siblings on each of those occasions, apart from in September when a typographical error by the reporter’s office notified the petitioner of an incorrect date of the calling. Nonetheless, it was clear from the actions of the petitioner’s agents and further correspondence from the reporter that sufficient notice of the September calling had been received by the petitioner. Therefore, he had not been deprived of the opportunity to address the Sheriff.
In relation to the November hearing, the Sheriff either did not receive or did not consider the petitioner’s submissions sent to the reporter for transmission to the court. The failure of his views to be considered by the Sheriff did amount to a breach of the procedural requirements.
Access to documents
The court was satisfied that the petitioner had been able to make sufficient representations on the issue of contact, having been provided by the reporter with an outline of matters contained in the documents. Because the petitioner’s interest in proceedings was limited to this single issue, there could be no assumption that he should have access to all documentation in the case. Children’s Hearing proceedings are sui generis, so not analogous with traditional private law disputes.
Intimation to the petitioner of the outcome of the court hearing and its reasons
It was not a breach of the petitioner’s Article 8 rights to receive informal intimation of the outcome of each ICSO decision. Formal intimation would not have provided him with any greater opportunity to participate in proceedings.
In relation to the single instance of unfair procedure in November, it was noted that this was an interim decision and, as such, would be revisited, affording the petitioner recurring opportunities to make representations to the court when any future ICSO was being considered. It was unlikely that another decision would have been made on that date in any event, since the Sheriff had deferred making a substantive decision until the views of the children had been sought.
Nonetheless, declarator was granted in respect of the November hearing, being the single decision that was incompatible with the petitioner’s Article 8 rights and so was unlawful.
Certain amendments to the Looked After Children (Scotland) Regulations 2009 will become operational on 26 July 2021. These reinforce the importance of sibling relationships. They place a duty on the local authority where it is considering placing a child with carers or in a residential establishment where any sibling of the child is looked after or about to be looked after. The local authority must, where appropriate, place the child and her or his sibling(s) with the same carer or in the same residential establishment or place them in homes which are near to one another. The local authority must be satisfied that the placement safeguards and promotes the welfare of the child (which is the paramount concern). A ‘sibling’ is defined as someone sharing at least one parent or where the child has lived with or is living with them and, with whom the child has an ongoing relationship with the character of a relationship between siblings.
The Children (Scotland) Act 2020 places a duty on Scottish Ministers to make Regulations that establish and maintain a register of persons who may be appointed to act as child welfare reporters. During the passage of the 2020 Act through the Scottish Parliament, the Scottish Government committed to a full and public consultation on the establishment of the registers of child welfare reporters, curators ad litem appointed in cases under section 11 of the 1995 Act and solicitors who can be appointed when an individual has been prohibited from personally conducting a case themselves.
Currently, child welfare reporters are appointed from lists held by each Sheriff Principal for cases heard in sheriff courts within their jurisdiction and by the Lord President for child welfare reporters appointed in cases in the Court of Session. Child welfare reporters do not have regular appraisals or any other monitoring or review and there is no requirement for any specific training. There is no practice guidance or performance framework.
Child welfare reporters are appointed by the court in cases under section 11 of the Children (Scotland) Act 1995, either to seek the views of the child and report any views expressed by the child back to the court; or to undertake enquiries and report to the court. Where the court asks a reporter to undertake enquiries, this can include seeking the views of the child and producing recommendations on their best interests.
Applications for Kinship Care Orders are made under section 11 and so this consultation is of particular importance to kinship carers, children in kinship care settings and practitioners working in kinship care (www.gov.scot/publications/children-scotland-act-2020-consultation-registers-child-welfare-reporters-curators-ad-litem-solicitors-appointed-represent-person-prohibited-conducting-case/pages/3/).