Katie's Scenario
"Katie is 12 years old. She lives in a foster placement after being removed from her mother’s care 18 months ago. Katie’s mother had been admitted to hospital at that time due to concerns regarding her mental health. She had also relapsed into substance misuse. Since being accommodated Katie has been having supervised contact with her mum on a weekly basis. This is reflected in a measure on her Compulsory Supervision Order. You attend a Children’s Hearing with Katie. Katie wants contact to be unsupervised. Her view is that contact has been going well and there is no need for it to be supervised any more. She hates that someone is watching them all the time – it doesn’t feel natural. Katie’s mum also believes that contact should now be unsupervised as she has been engaging with supports regarding her mental health and substance misuse. Social Work recognise that Katie’s mum’s mental health has improved, however they remain concerned that she is still using drugs. They believe that it is in Katie’s best interests that contact remain supervised for the time being. The panel agree with this and make no changes to the Compulsory Supervision Order. Katie is very upset and feels that the panel did not listen to her. Katie wants to Appeal the decision."
Does Katie have the right to an appeal?
Yes, Katie has the right to Appeal the decision of the Children’s Hearing to the Sheriff Court. Relevant persons (such as Katie’s mum), also have the right to Appeal. The Children’s Reporter and the Local Authority do not have the right to Appeal.
Having said that, Katie should obtain advice from a lawyer about whether an Appeal should be made. A lawyer will be able to look at the case and advise Katie on whether there are grounds to appeal (more on this below) and whether the appeal is likely to be successful.
What are the grounds of appeal?
Katie’s lawyer will look at all the paperwork for her case and will give her advice about whether there are grounds to appeal the decision. The lawyer will be particularly interested in looking at the panel’s written decision and reasons. Even though Katie disagrees with the decision and is unhappy with it, the lawyer may find that there are no grounds to appeal the decision. The Appeal will not be successful unless it can be shown that the decision was unjustified.
There are different ways that a decision can be unjustified, Katie’s lawyer will be looking out for the following:
1. Have the panel followed the procedure correctly? This is a common ground of appeal. There are numerous ways that this could arise, such as:
- Failing to afford the child or relevant person a proper opportunity to participate
- Proceeding with the hearing when a child or relevant person has not received or had time to consider the papers
- Excluding a relevant person without good reason
For the Appeal to be successful, it must be shown that the failure to following the correct procedure has resulted in the child or relevant person being materially prejudiced.
2. Have the panel failed to apply the law and the legal tests correctly? Again, this could happen in a variety of different ways, for example:
- Making an Interim Compulsory Supervision Order (ICSO) with the reason that it is necessary to do so. This is the wrong legal test. There needs to be urgent necessity for an ICSO to be made, as opposed to necessity for a CSO.
- Authorising a child to be placed in secure accommodation, without first considering the alternative of a Movement Restriction Condition.
3. Is the panel’s decision clear? The panel must clearly set out their reasons for their decisions, so that the child and relevant persons are in no doubt about why a decision was made and what material considerations were taken into account when reaching the decision.
4. Have the panel made a decision that no reasonable panel would have made? This does not arise frequently. To be successful it must be shown that the decision that the panel have made was totally inappropriate or plainly wrong.
Is there a deadline for Katie to appeal?
Yes. There are 21 days to Appeal the decision, beginning on the day that the Children’s Hearing took place. The Court will not accept late Appeals.
If the appeal relates to a decision about someone being deemed a relevant person, the deadline to appeal is 7 days.
How does the Appeal end up in Court?
Katie will first meet with a lawyer to get advice. If there are grounds to Appeal the decision, the lawyer will apply for Legal Aid. If Legal Aid is granted, the lawyer will prepare the Appeal and send it to the Sheriff Court, together with the panel’s written decision and reasons. The lawyer will then wait to hear from the Court with a date for when the appeal hearing will take place.
When will the appeal court hearing take place?
The Court will arrange a hearing to take place within 28 days of the Appeal being received by the Court.
However, for some appeals a hearing will be arranged earlier. If the Appeal is about an ICSO, secure authorisation, or a relevant person determination, the hearing will take place 3 days after it is received by the Court. For every other appeal, the hearing will take place within 28 days.
Who else will take part in the Appeal?
The Court will send a copy of the Appeal to the Children’s Reporter and to any relevant persons for Katie. If there was a safeguarder at Katie’s Children’s Hearing, then the Appeal would also be sent to them.
The Children’s Reporter, Relevant Persons, and safeguarder (if appointed) will then be entitled to send ‘Answers’ to the Court. This is their written response to the Appeal. They could agree with the Appeal and therefore support Katie’s view, or they could disagree with the Appeal. Answers usually have to be sent to the Court 48 hours before the date for the court hearing.
What happens at the Court hearing?
The Appeal will take place in the Court room. It will take place in ‘closed court’ which means that members of the public cannot enter.
The judge, called a Sheriff, sits on a raised platform called the bench. The Sheriff is assisted by a Sheriff Clerk, who is in charge of the court diary and ensures that the Sheriff has the correct papers for the Hearing. There is usually a Bar Officer in Court too, who will call out the name of the case when it is time for the parties to go into the Court.
Katie will be there (unless she has been excused) with her lawyer. Katie will be known as ‘the Appellant’. The Children’s Reporter will also be there. Any other relevant persons (or safeguarder if appointed) can be there if they want to participate in the Appeal, together with their lawyers. Katie’s lawyer will start by explaining the Appeal and why it should be granted. The Children’s Reporter will then respond with their position, and relevant persons (and safeguarder, if appointed) will follow with their position.
The Sheriff will then make their decision (see more on this below)
How long will the Court hearing last?
It depends on how complex the Appeal is, and how many parties are involved. However usually they are finished within an hour or so.
It is important to note that the Children’s Reporter may ‘concede’ the Appeal before the Court hearing. This means that they accept that the decision of the panel was unjustified, and they agree that the Appeal should be successful. If that is the case, then the appeal hearing at Court will last a matter of minutes.
How will the Sheriff make their decision?
After everyone has had a chance to speak, the Sheriff will decide whether the appeal should be granted or refused and will provide their reasons.
If the Sheriff is satisfied that the decision of the panel was justified, they will refuse the appeal and confirm the decision of the Children’s Hearing. However, the Sheriff does have the power to make changes to the CSO or to arrange another Children’s Hearing if they are satisfied that the Katie’s circumstances have changed since the Children’s Hearing took place.
If the Sheriff is satisfied that the decision of the panel was unjustified, then the Appeal will be granted. Most often, the Sheriff will then decide to send the case back to the Children’s Hearing to review the CSO. This is because it is recognised that a Children’s Hearing is the best place to make decisions regarding Katie’s CSO. Although not used frequently, the Sheriff does have the power to make or change the CSO themselves in certain circumstances.
If there is a successful appeal against an ICSO then the Sheriff has no option but to terminate the order.
