NR v ROMA BRUCE-DAVIES, Scottish Children’s Reporter’s Administration [2018] SAC (Civ) 13

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018-sac-%28civ%29-13.pdf?sfvrsn=0 (SHERIFF APPEAL COURT, 11 May 2018)

Background: The Sheriff Appeal Court heard an appeal regarding the termination of the biological mother’s contact with her children LC and CD, aged four and five.  On 14 June 2017 a children’s hearing made certain orders under the Children’s Hearings (Scotland) Act 2011 (the “2011 Act”) in relation to the appellant’s children. The appellant appealed to the Sheriff but was unsuccessful.  There were three grounds of appeal from the appellants senior council.   Firstly, the summary Sheriff erred by “giving insufficient consideration to submissions on behalf of the appellant that the local authority had failed properly to assess reasons for the children’s behaviour, and that “it was the appellant’s position that such an assessment should have been carried out by a child psychologist”.[para 13] Secondly, it was argued that the summary sheriff was misdirected allowing the social workers to provide the hearing with an opinion relating to such behaviour.  Finally, that the summary sheriff had erred and misdirected herself in holding that the appellant had a remedy in calling a further hearing.

Held: The Sheriff Appeal Court maintained there is no requirement in law for a children’s hearing to obtain either a parenting assessment or a psychologist’s report. The children’s hearing must act to safeguard and promote the welfare of the child, this had been done. The Sheriff’s reasoning did not amount to an error in law.  Furthermore, the Senior counsel’s three points of appeal could not be considered by themselves as errors of law.  The European Convention on Human Rights could not be used to justify the appeal. The appellant did not allege a breach of her Article 6 or Article 8 rights but sought to identify further evidence which was not available to the hearing as the grounds of a breach of her Convention rights. The court considered that “That Convention rights under ECHR are not intended to provide a catch-all position to support an otherwise groundless argument. “Fighting on” is no justification for an appeal.” [Para 4]

For the sake of completeness the court considered the variation to terminate the contact order which was the result of the distress exhibited by the children following the contact with the parents.   The court took into account the appellant’s current situation which had led to the children being placed in foster care.  The appellant had not made efforts to change or to make use of the intensive support offered to her. 

All “relevant persons” have a right under section 132(3) of the 2011 Act to seek a review of the children’s hearing decision to vary the contact order to nil which can be done after three months. Therefore, an appeal from a sheriff's decision on appeal from a children's hearing "should be an exceptional event”. In his conclusion Appeal Sheriff Ross stated, “We observe that such a review, by way of a further children’s hearing, could have been heard at least seven months ago. Future appeals should receive robust and careful consideration by lawyers and funders alike."

 


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