Note by Sheriff Philip Mann in permanence order proceedings relating to the child RT [2017] SC LER 9 (Sheriff Court, 2 February 2017)

Background: Shetlands Island Council made an application for a permanence order in respect of a child who was subject to a compulsory supervision order (to be in force until 17 December 2016). On 25 November 2016, a children’s hearing deferred making a decision regarding review of the CSO, as the panel had made an application to the Sheriff to vary contact arrangements. The hearing also decided to continue the CSO until the subsequent children’s hearing. A hearing was fixed by the Sheriff in order to receive submissions from the parties to the permanence application, to assist in the Sheriff’s decision of whether the child’s case be referred to the reporter. At this hearing, it was submitted that by deferring consideration of the order until “a” subsequent hearing, without fixing a date, and then continuing the order until “the” subsequent hearing, the children’s hearing incompetently purported to continue the order without limit of time. It was submitted that this meant the order had come to an end on 17 December 2016, and that the Sheriff could not refer the case to the reporter.

Held: The CSO ended on 17 December 2016, as it had not competently been continued at the 25 November 2016 hearing. The Sheriff made the following warning:

“It is imperative that the children’s hearing does not inadvertently allow a compulsory supervision order to come to an end when there is a need for it to remain in place. Otherwise, the consequences for the child could be significant and serious. Fortunately, in this case no harm has been done because of the responsible attitude adopted by the relevant persons and their advisers. But, the greatest care should be taken to ensure that the welfare of a child is not left to such chance. The children’s hearing could have avoided the difficulty which arose in this case by the simple expedient of exercising the power vested in them by section 138(3)(c) of the 2011 Act.” [17]

The Sheriff made an interim order in terms of section 97(2) of the Adoption and Children (Scotland) Act 2007 providing that the child continue to reside with her present foster carers subject to conditions relating to contact with the relevant persons.