The Locality Reporter Manager v AM [2017] SAC (Civ) 36
http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017-sac-(civ)-036.pdf?sfvrsn=0 (Sheriff Appeal Court, 4 October 2017)
Background: Appeal by stated case in terms of section 163 of the Children’s Hearings (Scotland) Act 2011. The appeal considered the decision of the summary sheriff at Stirling to terminate a compulsory supervision order (CSO) in respect of child ‘H’, which, following a review, had been continued by the children’s hearing on 18 April 2017.
Child ‘H’ lives with the maternal grandparents and has been subjected to the CSO since five months of age. The respondent, her mother, is unable to care for ‘H’ namely due to personal circumstances and tenancy issues. There has been some contact between ‘H’ and the respondent.
All parties who attended the hearing on the 18 April were in agreement with the decisions regarding the CSO. The respondent appealed the decision as the matter of contact was silent in the CSO despite it being discussed during the meeting.
The stated case posed five questions for the opinion of the Appeal Court.
(1) Was the Compulsory Supervision Order granted by the Children’s Hearing defective in law? This question was replaced with ‘Was the Compulsory Supervision Order granted by the children’s hearing justified?’ and answered in the negative.
(2) Was it correct in law to infer from the context and circumstances of the present case that the Children’s Hearing had duly considered whether to make a requirement for contact in terms of section 29A of the 2011 Act? Was deemed unnecessary.
(3) Did I err in terminating the Compulsory Supervision Order dated 18 April 2017? Affirmative
(4) In terminating the Compulsory Supervision Order dated 18 April 2017, did I act in accordance with the welfare of the child? Negative
(5) Have I provided proper and adequate reasons for my decision? Also considered incomplete and unnecessary.
Held: Section 29A of the 2011 Act had not come under judicial scrutiny since its insertion into the 2011 Act. Section 29A does not provide the terms of which the children’s hearing must record that it has discharged its duty to consider contact. However, failure to do so it leaves the CSO open to challenge. The Appeal Court considered that the sheriff had taken a narrow view of the procedural irregularity. Any procedural irregularity must be of such seriousness that it is “damaging to proceedings” and reiterated the welfare of the child remains to be of paramount consideration under s25 of the 2011 Act. Terminating the CSO would leave a vacuum and would have a large impact on the child. The court answered question one as replaced in the negative, question three in the affirmative, question 4 in the negative.
See also: 2018 Fam. L.R. 14
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