Appeal by CA and CM against a decision of The Children’s Hearing at Aberdeen dated 4 June 2019 in respect of the child, DHB (11 September 2019, Sheriff Appeal Court)

All references are to the Children’s Hearings (Scotland) Act 2011 unless otherwise stated.

The Sheriff was required to determine which of two tests was the correct one for a Children’s Hearing to apply in deciding whether to include a measure in a CSO for non-disclosure of a child’s address under section 83(2)(c). The Children’s Hearing in question had varied an existing CSO to remove a measure for non-disclosure of the child’s place of residence to the child’s natural parents. In doing so, they applied the test of whether disclosure was “likely to cause significant harm to the child”, as set out in section 178(1) of the Act, and determined that this test was not met.

The child’s adoptive parents appealed the decision on the basis that the Children’s Hearing had applied the wrong test. The test in section 178(1) applied only to a specific type of information, specifically information of an evidential nature which could be said to form the basis of the Hearing’s decision. A child’s address could not be said to fall into this category. There was no test expressly referred to in section 83 for a Children’s Hearing to apply in determining this matter. The matter was therefore left to be determined by reference to the welfare principle, as implied into the entire Act by section 25. In applying the welfare test, it was clear that disclosure would not be in the child’s best interests, nor was it in the interests of protecting the child’s welfare. 

It was submitted on behalf of the Reporter that the “significant harm” test in section 178(1) ought to be implied into section 83(2)(c), but the Sheriff could find no authority to do so.

Sheriff Hodge agreed with the arguments made on behalf of the adoptive parents, and allowed the appeal. He stated that:

“[33]…I agree with [counsel for the appellants] that the matters referred to as “information” in section 178, on the basis of the annotations [by Professor Norrie], seem to me to refer to evidential material or other material which would form the basis of a Panel’s decision. An address is not such material.”

He went on to vary the CSO to reinstate the measure providing for non-disclosure of the child’s address.

In addition, the Sheriff found that there was a distinction to be made between a Children’s Hearing deciding to include a measure for non-disclosure under section 83(2)(c) on its own initiative (as in this case), and a decision made in response to a request for non-disclosure of information by another party under section 178. In the latter situation, the test in section 178(1) would apply and the relevant steps in Rules 85 – 87 of the Procedural Rules in Children’s Hearings would require to be followed.

Read the decision here

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