Note of Reasons By Sheriff B A Mohan in appeals by TJL v a Decision of the Children’s Hearing for Dumfries of 17 July 2020 in respect of M (31/12/2018) and T (4/1/2020) ([2020] SC DUM 39)

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020scdum39.pdf?sfvrsn=0 (Sheriff Court, 19 August 2020)

The father of two young children (19 month and 7 months) has been unsuccessful in his appeal of a children’s hearing's decision to renew an ICSO that stated he should have no contact with his children.

Background

The father's appeal was brought under section 154 of the Children’s Hearings (Scotland) Act 2011.

In terms of background, the children live with their mum in Annan, with three older siblings who are not related to the appellant.

The grounds of referral in this case came before a children’s hearing on 3rd June 2020 and involved allegations of domestic abuse by the appellant toward the mother of the two children involved. Such grounds were brought under Section 67(2)(f) of the Children’s Hearings (Scotland) Act 2011. The grounds were not accepted by the parents of the two children, and a Proof was arranged at Dumfries Sheriff Court.

Procedural History

This appeal took place before that Proof.

Referral proceedings began in this case without any Interim orders being sought from a hearing. Social workers working with the parents were optimistic that the case could be resolved without the use of formal orders, as the appellant has been undergoing alcohol treatment at a rehabilitation centre.

The deterioration in the behaviour of the appellant, however, led to the local authority’s suggestion that an order be made regulating the contact he had with his children. 

In June a hearing took place following a multi-agency meeting which recommended that no contact should take place between the father and his children until he demonstrated stability. The panel put in place an ICSO in respect of both children which would remain in force for 44 days. Contact between the appellant and his two children was to take place for two hours twice per week under supervision.

No contact under the above terms took place, and on 26th June the local authority involved wrote to the Reporter stating that they were unable to safely implement the conditions of contact set out in the order.

Appeal

The appeal revolves around a children’s hearing that took place on 17th July, which renewed existing ICSOs already in place, but modified the contact condition in place to 'no contact'.

The decision of the hearing to include in the order a direction of no contact between the children and their father was based on the appellant’s ‘obsessive and aggressive’ behaviour toward the mother of the children, grandparent, police, and social work.  The appellant was considered by the Multi-Agency Risk Assessment group to be a ‘violent and physical danger’.

Arguments made by the Appellant

The appellant appealed the decision to end all contact on the 17th July on four main points:

  • Procedural irregularity - It was inappropriate for the Reporter to have arranged a hearing so soon after the previous hearing, where the only change in circumstances was the failure of social workers to facilitate contact. It was argued that the local authority had acted in breach of their obligations under the previous ICSOs in that they would not comply with the order to supervise contact. The appellant argued that to invite a hearing to review or reconsider a contact condition on the same facts amounted to a procedural irregularity.
  • Breach of obligations - The appellant argued that there was a refusal on the part of the implementing authority to apply an order made by a statutory body.
  • Parental Links - The appellant submitted that the hearing of 17th July failed to give proper consideration to the ‘positive duty’ on public authorities to maintain parental links with children, and that the appropriate balancing exercise was not applied correctly.
  • Red Herring - The appellant finally argued that contact was ultimately refused on the same facts which has been before the hearing that had taken place previously, wherein he had been given contact, and thus the concerns raised by social workers at the children’s hearing of 17th July were described by the appellant to be a ‘red herring’.

Sheriff Mohan

Sheriff Mohan, in his decision, did not accept that the approach taken by the Reporter amounted to a procedural irregularity (see para 38).

He noted that the change in recommendation by the local authority was based on the concerns around the appellant’s alcohol intake, increasingly erratic and dangerous behaviour, and the belief of the local authority that both parents were giving misleading accounts as to the status of their relationship.

Sheriff Mohan further noted that “there was much up to date, relevant information before the hearing” on 17th July, and that the discussions which took place by panel members at the hearing “did not focus only on the material which was before the earlier hearing” from 24th June. This was a case which involved ongoing concerns.

The Sheriff concluded that there had been various events which had occurred since the ICSOs had first been made on 24th June, such as an “unauthorised visit to the mother’s home” by the appellant, “and unsupervised virtual contact with the children”. Such events had a significant bearing on the decision of the hearing of 17th July.

Sheriff Mohan considered the hearing’s decision of 17th July 2020 to be justified and refused the appeal.


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